Muller et al v. Country Mutual Insurance Company

Filing 129

OPINION AND ORDER - The Court GRANTS Plaintiffs' Motion 115 for Partial Summary Judgment on Defendant's Affirmative Defense of "Concealment/Fraud." The Court reminds the parties that their jointly proposed Pretrial Order is due by March 22, 2017, and all other deadlines and case-management dates previously set remain in effect. Signed on 2/8/2017 by Judge Anna J. Brown. (pg)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

STEPHEN and RENA MULLER,
3:14-cv-01345-BR
Plaintiffs,
OPINION AND ORDER
v.

COUNTRY MUTUAL INSURANCE
COMPANY,
Defendant.

ANDREW C. LAUERSDORF
FRANCIS J. MALONEY, III
SCOTT A. MACLAREN
Maloney Lauersdorf & Reiner, PC
1111 E. Burnside Street
Suite 300
Portland, OR 97214
[phone]
ROBERT E.L. BONAPARTE
Shenker & Bonaparte, LLP
1500 S.W. First Avenue
Suite 765
Portland, OR 97201
[phone]
Attorneys for Plaintiffs
DANIEL E. THENELL
KIRSTEN L. CURTIS
Thenell Law Group, P.C.
12909 S.W. 68th Parkway
Suite 320
Portland, OR 97223
[phone]
Attorneys for Defendant
1 - OPINION AND ORDER

BROWN,

Judge .

This matter comes before the Court on Plaintiffs' Motion
(#115) for Partial Summary Judgment as to Defendant's Affirmative
Defense of "Concealment/Fraud."

For the reasons that follow, the

Court GRANTS Plaintiff's Motion.

BACKGROUND

This action arises from Defendant Country Mutual Insurance
Company's denial of coverage for a fire-loss claim submitted by
Plaintiffs Stephen and Rena Muller.

The following facts are

taken from the parties' summary-judgment materials and are
undisputed unless otherwise noted. 1
Plaintiffs own property in La Grande, Oregon.

1

Plaintiffs

Plaintiffs submitted a Concise Statement of Material
Facts as part of their Motion.
Plaintiffs contend this Statement
must be accepted as true inasmuch as Defendant's Response "does
not rebut or submit any facts that contradict" their Statement.
Federal Rule of Civil Procedure Rule 56 no longer requires the
filing of a Concise Statement of Materials Facts, and Local Rule
56-l(a) for this District also state a party is not required to
file a concise statement of fact "unless otherwise ordered."
This Court's initial Case Management Order (#14) required the
parties to file a Joint Statement of Agreed Facts in conjunction
with the filing of any dispositive motion.
The parties advised
the Court on July 31, 2015, that they would not be filing
dispositive motions.
See Order #29 (issued Aug. 3, 2015).
Accordingly, the Court's subsequent case-management orders did
not include the requirement to file a Joint Statement of Agreed
Facts. When evaluating Plaintiffs' Concise Statement of Material
Facts and Defendant's contentions in response, therefore, the
Court will apply the standard of Rule 56(e) (3) to determine
whether the parties' assertions of fact are properly supported in
the record and/or whether any particular fact is substantively
disputed.
2 - OPINION AND ORDER

live on the property and also run an automotive machine business
in a large commercial building on the property next to their
home.
Defendant issued three different insurance policies for
Plaintiffs' property, which covered damage to Plaintiffs' home,
business structure, business personal property and equipment,
personal property, business income, and automobiles.
On November 18, 2012, a fire destroyed the commercial
building and all of its contents.

According to Plaintiffs, on

the morning of the fire they left their home around 9:00 a.m. to
visit friends in Klamath Falls for the Thanksgiving holiday.

At

approximately 1:15 p.m. while en route, Plaintiffs received a
text message from neighbors that there was a fire on their
property.
La Grande.

Plaintiffs turned around and returned to their home in
Plaintiffs immediately reported the loss to

Defendant.
On November 20, 2012, the Oregon State Fire Marshal's Office
issued an investigation report regarding the fire and concluded
the cause of the fire was "undetermined."

Also on approximately

November 20, 2012, Plaintiffs' claim was referred by Defendant to
a Special Investigation Unit (SIU).
On November 21, 2012, Joe Buckley, Defendant's Claim
Representative, conducted a recorded interview of Stephen Muller.
On November 28, 2012, Ryan Fields and Nick Flynn, Defendant's

3 - OPINION AND ORDER

special investigators, conducted recorded interviews of both
Plaintiffs.

On April 5, 2013, an attorney hired by Defendant

conducted an examination of Plaintiffs under oath regarding the
fire.

In each instance Plaintiffs stated they did not know the

cause of the fire and that they were not involved in either
setting the fire or conspiring with another person to set the
fire.

At Defendant's request, Plaintiffs submitted proof-of-loss

documents to Defendant, including repair estimates for the
structure, business personal property and personal property
inventories, and other supporting documentation regarding their
loss from the fire.
On June 27, 2013, Defendant's investigator issued an
Investigation Summary regarding the origin of the fire and its
cause.

In the Summary Defendant's investigator concluded:
In total some 243 intentional ignition scenarios were
considered and virtually all were eliminated except the
intentional act.
No accidental cause for the fire was
found during the extensive examination of the
structure.
These facts as well as those
mentioned above support the opinion of a fire set
intentionally by person(s) unknown.

On July 29, 2013, Defendant issued a Notice of Denial of
Coverage letter to Plaintiffs in which Defendant stated:
[Defendant's] investigation concludes that the
November 28, 2012, loss was incendiary and that
[Plaintiffs] intentionally caused and/or conspired to
cause the loss.
Additionally, the policy is void when an insured makes
a material misrepresentation.
[Plaintiffs']
misrepresentations regarding the cause of the fire and
4 - OPINION AND ORDER

their financial situations at the time of their
recorded statements and examinations under oath were
material to [Defendant's) investigation.
On August 21, 2014, Plaintiffs filed a Complaint in this
Court and alleged claims for breach of contract and tortious
interference with business relationships.

On May 29, 2015,

Plaintiffs filed an Amended Complaint in which they allege a
single claim of breach of contract based on (1) Defendant's
failure to pay Plaintiffs' claim and (2) Defendant's alleged
breach of the implied covenant of good faith and fair dealing
when it failed to investigate the loss properly, to adjust the
claim, and to pay Plaintiffs for the losses they sustained as a
result of the fire.
On August 7, 2015, Defendant filed an Answer, Defenses, and
Affirmative Defenses to Plaintiffs' First Amended Complaint.
Defendant alleges Plaintiffs' fire claim is excluded from
coverage based on various terms of the applicable policies.
Specifically, Defendant's Affirmative Defense for
"Concealment/Fraud• states:
The Country Mutual Home Insurance Policy Number
A36K461993 provides
. as follows:
Genera1 Po1iay Conditions
(Ina1udes Limitations)

* * *
Q. Conaea1ment or Fraud
1. This entire policy shall be void if,
whether before or after the loss, an
5 - OPINION AND ORDER

"insured" has willfully concealed or
misrepresented any material fact or
circumstance concerning this insurance or the
subject thereof, or the interest of an
"insured" therein, or in case of any fraud or
false swearing by an "insured" relating
thereto.
The Country Mutual Commercial Policy Number
AB9130736, by endorsement IL 01391202, provides .
as follows:
B. CONCEALMENT, MISREPRESENTATION OR FRAUD
1.
Subject to Paragraphs 2. and 3. below, this

entire Coverage Part or Coverage Form will be
void if, whether before or after a loss, you
have willfully concealed or misrepresented
any material fact or circumstance concerning
this insurance or the subject of it, or your
interest in it, or in case of any fraud or
false swearing by you relating to it.
Emphasis in original.

Defendant further alleges:

The above quoted language from the policies exclude
coverage for the claim made by Plaintiffs, because the
insured(s) misrepresented their involvement in the
subject loss and made material misrepresentations
regarding personal property items they claimed as part
of the loss.
In their Motion for Partial Summary Judgment against
Defendant's Affirmative Defense of "Concealment/Fraud" Plaintiffs
contend there is not a genuine dispute of material fact because
Defendant cannot produce evidence that it relied to its detriment
on alleged misrepresentations by Plaintiffs.

STANDARDS
Summary judgment is appropriate when "there is no genuine
6 - OPINION AND ORDER

dispute as to any material fact and the movant is entitled to
judgment as a matter of law."
States,

Washington Mut.

636 F.3d 1207, 1216 {9th Cir. 2011).

Civ. P. 56(a).

Ins. v. United
See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.

Id.

''This burden is not a light one

The non-moving party must do more than show there is
some 'metaphysical doubt' as to the material facts at issue."
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387

In

(9th Cir. 2010)

(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F. 3d

1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby,
Inc.,

477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc.,

606 F.3d 584, 587

(9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
381 F.3d 948, 957

Easter v. Am. W. Fin.,

(9th Cir. 2004) {citation omitted).

A "mere

disagreement or bald assertion" that a genuine dispute as to a
7 - OPINION AND ORDER

material fact exists "will not preclude the grant of summary
judgment."

Deeringv. Lassen Cmty. Coll. Dist., No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
v. Brekka,

LVRC Holdings LLC

581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted).

The substantive law governing a claim or a defense
determines whether a fact is material.
Prod., Inc.,

454 F.3d 975, 987

Miller v. Glenn Miller

(9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION
Plaintiffs assert they are entitled to summary judgment on
the grounds that (1) Defendant has failed to plead the necessary
element of reliance as part of its Affirmative Defense,
(2) Defendant cannot produce any evidence of detrimental
reliance, and (3) Defendant may not "mend its hold" by now
asserting an Affirmative Defense based on alleged
misrepresentations by Plaintiffs that Defendant chose not to
raise at the time Defendant denied Plaintiffs' claim.
Defendant, in turn, contends (1) it is not required to plead
8 - OPINION AND ORDER

reliance as an element of its fraud defense;

(2) resolution of a

summary-judgment motion is not based on the sufficiency of the
pleading but rather the existence of a genuine dispute of
material fact such as the one that exists here, and, therefore,
the Court should not grant Plaintiffs' Motion; and (3) the "mend
the hold" doctrine does not apply in Oregon.

I.

Reliance is a necessary element of Defendant's Affirmative
Defense of "Concealment/Fraud."
Plaintiff contends Defendant must affirmatively plead and

prove Defendant relied on Plaintiffs' alleged misrepresentations
in order to state an Affirmative Defense of "Concealment/Fraud."
Defendant, however, contends reliance is not a required
element of its fraud defense.

Defendant asserts "[t]he plain

language of the policies states that [Defendant] must rely on any
misrepresentations to assert the defense to coverage."
added.

Emphasis

According to Defendant, all statements "in the absence of

fraud," therefore, are representations, and, therefore "if fraud
is present[, Defendant] need not demonstrate reliance."
Oregon Revised Statute § 742.208 governs an Affirmative
Defense of fraud in the insurance context and requires a fireinsurance policy to contain a provision that identifies when a
policy is void because of an insured's misrepresentations:
(1) Subject to subsection (2) and (3) of this section,
this entire policy shall be void if, whether before or
after a loss, the insured has willfully concealed or
misrepresented any material fact or circumstance
concerning this insurance or the subject thereof, or
the interest of the insured therein, or in case of any
9 - OPINION AND ORDER

fraud or false swearing by the insured relating
thereto.
(2) All statements made by or on behalf of the insured,
in the absence of fraud, shall be deemed
representations and not warranties.
(3) In order to use any representation by or on behalf
of the insured in defense of a claim under the policy,
the insurer must show that the representations are
material and that the insurer relied on them.
In Allstate Ins. Co. v. Breeden the Ninth Circuit set out the
following "relevant requirements" pursuant to Oregon law for an
insurance company to deny coverage under a fire-insurance policy
for concealment or fraud:

"(1) the insured has willfully;

(2) concealed or misrepresented;
circumstance;
thereof;

(3) a material fact or

(4) concerning the insurance or the subject

(5) the representations are material; and (6) the

insurer relied on the misrepresentations."

216 F. App'x 655,

(2007) (citing Eslamizar v. Am. States Ins.,

134 Or. App. 138

(1995), and Or. Rev. Stat. § 742.208).

658

Similarly, in Masood v.

Safeco Insurance Company of Oregon the Oregon Court of Appeals
stated:
We have previously construed the term "reliance" in ORS
742.208 and concluded that the legislature intended
that term to mean reliance as that term is understood
as an element of common-law fraud.
Thus, the insurer
must establish "evidence of a detrimental action or
change in position."
275 Or. App 315, 332 (2015) (citations omitted).
Defendant, however, relies on Mutual of Enumclaw Insurance
v. McBride, 295 Or. 398
10 - OPINION AND ORDER

(1983), to support its position.

In

McBride the insurer brought a declaratory judgment action in
state court to determine whether the insured committed fraud or
false swearing.

As a defense to the insured's counterclaim for

damages, the insurer asserted the policy was void based on fraud
or false swearing.

Following a jury verdict that the insured had

committed false swearing, the trial court entered judgment for
the insurer.

The insured filed a motion for new trial on the

ground that the court erroneously instructed the jury that "a
preponderance of the evidence" is the standard of proof for
determining damages.

According to the insured, the proper

standard for determining damages was by clear and convincing
evidence.

On appeal the Oregon Supreme Court held insurance

fraud or false swearing is a purely civil dispute, and,
therefore, the trial court properly instructed the jury that the
standard of proof for determining damages was a preponderance of
the evidence.

Thus, the Oregon Supreme Court addressed only the

standard of proof required to determine damages rather than
whether reliance was a required element of such a claim.
Based on Breeden and Masood this Court concludes Defendant
must prove it relied on the Plaintiffs' alleged concealment or
misrepresentations to prevail on an Affirmative Defense of
"Concealment/Fraud".
II.

Defendant adequately pled its Affirmative Defense of
"Concealment/Fraud."

Plaintiff contends Defendant inadequately pleads reliance as

11 - OPINION AND ORDER

an element of its Affirmative Defense of "Concealment/Fraud."
The Ninth Circuit has held "[t]he key to determining the
sufficiency of pleading an affirmative defense is whether it
gives plaintiff fair notice of the defense."

Simmons v. Navajo

County, Ariz., 609 F.3d 1011, 1023 (9th Cir. 2010) (citing Wyshak
v. City Nat'l Bank, 607 F.2d 824, 827

(9th Cir. 1979)); accord

Schutte & Koerting, Inc. v. Swett & Crawford, 298 F. App'x 613,
615 (9th Cir. 2008).

"Fair notice generally requires that the

defendant state the nature and grounds for the affirmative
defense.
facts.

It does not, however, require a detailed statement of
On the other hand, an affirmative defense is legally

insufficient only if it clearly lacks merit 'under any set of
facts the defendant might allege.'

McArdle v. AT&T Mobility,

LLC, 657 F. Supp. 2d 1140, 1149-50 (N.D. Cal. 2009) ."
Islands Restaurants, LP, 280 F.R.D. 560, 564

Kohler v.

(S.D. Cal.

2012) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Here Defendant alleges Plaintiffs made material
misrepresentations regarding their involvement with the fire and
as to their loss of personal property.

Although Defendant has

not explicitly alleged it relied on Plaintiffs'
misrepresentations, the Court concludes on this record that
Defendant's allegations of misrepresentation in conjunction with
the quoted policy language sufficiently provide Plaintiffs with
"fair notice" of the Affirmative Defense of "Concealment/Fraud"
and, therefore, Defendant's Affirmative Defense does not "clearly
12 - OPINION AND ORDER

lack[) merit 'under any set of facts.'"
1023, and Kohler, 280 F.R.D. at 564.

See Simmons, 609 F.3d at

Accordingly, the Court

concludes Defendant's Affirmative Defense is adequately pled.
III. There is not a genuine dispute of material fact regarding
whether Defendant detrimentally relied on Plaintiffs'
alleged misrepresentations.

Plaintiffs contend there is not any evidence that Defendant
changed its position or acted to its detriment in reliance on any
alleged misrepresentation by Plaintiffs.

To support their

contention Plaintiffs assert the record does not reflect
Defendant made any claim payments, adjusted reserves, lost any
opportunity to investigate, or incurred extra costs as a result
of any such reliance.
According to Defendant, however, a genuine dispute of
material fact exists regarding its reliance on Plaintiffs'
misrepresentations that precludes summary judgment.

Defendant

points to the Declaration of Nick Flynn, one of Defendant's
special investigators, in support of that contention.

Flynn

testifies Defendant "believed Plaintiffs misrepresented material
facts in connection with their claims"; that Defendant "relied on
Plaintiffs' misrepresentations and incurred additional costs and
expenses above a normal claim investigation"; and that Defendant
"retained multiple experts to analyze Plaintiffs' businesses,
finances, and the cause and origin of the fire based on
Plaintiffs' material misrepresentations."

Flynn also testifies

the retention of these experts was "above the normal course of
13 - OPINION AND ORDER

investigation for a fire claim" and resulted in Defendant
incurring expenses of $321,000.

In addition, Flynn states

Defendant hired counsel to examine Plaintiffs under oath "based
on the misrepresentations made by Plaintiffs during their
recorded statements."

Flynn also states Defendant was unaware of

additional misrepresentations by Plaintiffs regarding their
business personal property loss until after Defendant received a
report from Gregory Cornwall on June 6, 2016.

According to

Defendant, the totality of these facts creates a genuine dispute
regarding Defendant's reliance on Plaintiffs' misrepresentations
and, therefore, preclude summary judgment.
Nevertheless, Plaintiffs maintain even if Defendant's
reliance on the alleged misrepresentations of Plaintiffs is
accepted as true, Defendant has not shown any such reliance was
detrimental.
The Court notes evidence of mere reliance is insufficient.
The insurer must show "it changed its position in some way based
on the misrepresentations made" by the insured.
Or. App. at 332.

Masood, 275

In Masood the Oregon Court of Appeals held

"reliance in fact cannot be proved by asserting, in general, that
the insurer relied on an insured to ascertain a loss.

Rather,

the insurer must show that it changed its position in some way
based on the misrepresentations."

Id.

Even though a jury found

the plaintiff misrepresented the value of items destroyed as a
result of the fire, the appellate court found the trial court
14 - OPINION AND ORDER

erred when it denied plaintiff's motion for a directed verdict on
the insurer's counterclaim for breach of contract when there was
not any evidence in the record that the insurer reasonably relied
on those misrepresentations to its detriment.
In Breeden the Ninth Circuit held the insurer must show it
"has acted or refrained from action to [its) detriment" in order
to void an insurance policy based on the misrepresentations of
the insured.

216 F. App'x at 659.

The court also noted the

Oregon Supreme Court "refused to recognize [expenses of)
investigation alone as reliance."
Chevrolet Co., 258 Or. 606 (1971)).

Id.

(citing Chaney v. Fields

The Breeden court concluded

the "conclusory statement" of the insurer's representative did
not establish reliance as a matter of law because the insurance
company failed to submit evidence concerning the time and costs
of a typical investigation of claims, did not give any
quantification of the resources it expended, and did not offer
any comparison of the costs of a typical investigation with those
expended in this instance.

Ultimately, however, the Ninth

Circuit held there were numerous genuine disputes that precluded
summary judgment in favor of the insurance company's position
that the policy was void.
Here the Court concludes Flynn's conclusory statements,
without more, do not raise an issue of material fact as to
whether Defendant reasonably relied "to its detriment" on
Plaintiffs' alleged misrepresentations sufficient to void the
15 - OPINION AND ORDER

policy.

Defendant did not make any payments to Plaintiffs based

on their alleged misrepresentations that they were not involved
in the fire nor any payments based on Plaintiffs' alleged
misrepresentations as to the value of any personal property that
purportedly was a part of their loss.

Defendant almost

immediately commenced its investigation of the fire following the
incident based on suspicions that the fire was not accidental,
and Defendant denied coverage for the fire approximately eight
months later following its investigation.

Moreover, Defendant

has not shown any "quantitative analysis" as to the expenses it
incurred for its investigation or expert consultation beyond what
it would have incurred without Plaintiffs' alleged
misrepresentations.

Accordingly, as in Breeden, the conclusion

here that the $321,000 in expenses Defendant incurred for experts
"was above the normal course of investigation for a fire claim"
is insufficient to show detrimental reliance on the alleged
misrepresentations by Plaintiffs because there is not any
evidence as to such costs in a "typical" fire claim.
On this record, therefore, the Court concludes Defendant has
not raised a genuine dispute of material fact from which a
reasonable juror could conclude Defendant relied to its detriment
on Plaintiffs' alleged misrepresentations, and, therefore,
Plaintiffs are entitled to Partial Summary Judgment on
Defendant's Affirmative Defense of "Concealment/Fraud."

16 - OPINION AND ORDER

IV.

The "Mend the Hold" Doctrine
Finally, Plaintiffs contend Defendant may not "mend the

hold" by changing the basis for its denial of coverage after
litigation commenced, and, consequently, Plaintiffs argue the
Court should bar Defendant from asserting new allegations of
misrepresentations as part of Defendant's Affirmative Defense of
"Concealment/Fraud"
that were not set forth in Defendant's original denial-ofcoverage letter.
According to Defendant, however, the so-called "mend the
hold" doctrine does not apply under Oregon law.

Even if it did

apply, Defendant points out the misrepresentations that Defendant
added in its Affirmative Defense were not known to Defendant at
the time of its denial letter to Plaintiffs.

As a result,

Defendant contends it may assert those additional
misrepresentations now as a basis for its Affirmative Defense.

Inasmuch as the Court has already concluded Plaintiffs are
entitled to Partial Summary Judgment on Defendant's Affirmative
Defense of "Concealment/Fraud," the Court need not address the
question whether the "mend the hold" doctrine applies under
Oregon law or whether Defendant has improperly changed its
position as to the basis for its Affirmative Defense of
"Concealment/Fraud."

17 - OPINION AND ORDER

CONCLUSION

For these reasons, the Court GRANTS Plaintiffs' Motion
(#115) for Partial Sununary Judgment on Defendant's Affirmative
Defense of "Concealment/Fraud."
The Court reminds the parties that their jointly proposed
Pretrial Order is due by March 22, 2017, and all other deadlines
and case-management dates previously set remain in effect.
IT

rs so

ORDERED.

DATED this

gm

day of February, 2017.

ANNA J.
BROWN
United States District Judge

18- ORDER