Marc v. Traveler's Commercial Insurance Company

Filing 27

MEMORANDUM DECISION AND ORDER - denying 21 Motion for Partial Summary Judgment. In accordance with the Courts prior Order (Docket No. 22 ), the parties must participate in mediation within 45 days of this Order. Signed by Judge Ted Stewart on 9/16/2019. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
TIMOTHY MARC,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

Plaintiff,
v.
TRAVELERS COMMERICAL
INSURANCE COMPANY A.K.A
TRAVELER’S INDEMNITY COMPANY
OF CONNECTICUT, a corporation,

Case No. 2:17- CV-1193 TS-PMW
District Judge Ted Stewart

Defendant.

This matter is before the Court on Defendant Traveler’s Commercial Insurance
Company’s (“Travelers”) Motion for Partial Summary Judgment regarding Plaintiff Timothy
Marc’s (“Marc”) claim for Breach of the Covenant of Good Faith and Fair Dealing. For the
reasons discussed below, the Court will deny the Motion.
I.

BACKGROUND

On or about March 5, 2011, Marc was injured in a motor vehicle accident while
employed by Quality Appliance Service, LLC (“Quality Appliance”). 1 Travelers issued Quality
Appliance a commercial auto insurance policy (the “Agreement”) valid from December 13, 2010
to December 13, 2011. 2 Marc obtained the policy limit from the at-fault driver, and then filed an

1

Docket No. 21, at 2.

2

Id.

underinsured motorist (“UIM”) claim under Quality Appliance’s insurance policy. 3 Marc and
Travelers were unable to resolve the claim and Marc brought this suit to enforce the Agreement. 4
II.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper if the moving party can demonstrate that there is no genuine
issue of material fact and it is entitled to judgment as a matter of law. 5 “An issue of fact is
‘material’ if under the substantive law it is essential to the proper disposition of the claim.” 6 The
Court is required to construe all facts and reasonable inferences in the light most favorable to the
nonmoving party. 7
“The movant bears the initial burden of making a prima facie demonstration of the
absence of a genuine issue of material fact.” 8 “Such a movant may make its prima facie
demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an
essential element of the nonmovant’s claim.” 9 Once a movant has carried its initial burden, “the
burden shifts to the nonmovant to go beyond the pleadings and ‘set forth specific facts’ that
would be admissible in evidence in the event of trial from which a rational trier of fact could find
for the nonmovant.” 10

3

Id.

4

Id.

5

FED. R. CIV. P. 56(a).

6

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).

7

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Wright v. Southwestern Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
8

Adler, 144 F.3d at 670–71.

9

Id. at 671; accord Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

10

Adler, 144 F.3d at 671 (quoting FED. R. CIV. P. 56(e)).
2

III.

DISCUSSION

Travelers’ factual statements are largely undisputed. 11 The parties, however, dispute two
facts regarding who is a named insured under the Agreement. Travelers’ interpretation is that
only Quality Appliance is a named insured and Marc is a covered employee or “defined
insured.” 12 Marc’s interpretation is that although Quality Appliance purchased the Agreement,
Marc is an insured. 13 The parties dispute the Agreement’s language, but this dispute is
immaterial in deciding Travelers’ Motion because the characterization of an insured is
“transaction specific,” and the Agreement’s classification of a party as a “named insured” is not
necessarily indicative. 14
It is well-settled Utah law that “an action for breach of the covenant of good faith and fair
dealing may be brought only by a party to the insurance contract.” 15 Thus, “there is no duty of
good faith and fair dealing imposed upon an insurer running to a third-party claimant . . . .” 16
This is because “the duty of good faith and fair dealing is a contractual covenant, one that arises
solely as an incident to contractual obligations owed by an insurer to its insured.” 17

11

Compare Docket No. 21, at 2–3, with Docket No. 23, at 1–4.

12

Docket No. 25, at 2–3.

13

Docket No. 23, at 2–3.

14

Sperry v. Sperry, 990 P.2d 381, 384 (Utah 1999); see also Rumley v. Allstate Indem.
Co., 924 S.W.2d 448, 450 (Tex. Ct. App. 1996) (“The relationship between the parties, and the
duties arising from that relationship, must be considered in the context of the particular
occurrence in dispute.”).
15

Savage v. Educators Ins. Co., 908 P.2d 862, 865 (Utah 1995); accord Sperry, 990 P.2d
at 383; Cannon v. Travelers Indem. Co., 994 P.2d 824, 828 (Utah Ct. App. 2000).
16

Pixton v. State Farm Mut. Auto. Ins. Co., 809 P.2d 746, 749 (Utah Ct. App. 1991).

17

Savage, 908 P.2d at 866.
3

Accordingly, Utah law distinguishes between an insurer and its insured in two different
contexts—first-party and third-party insurance policies. 18 The determination of whether a
claimant is “an insured under the policy decides the issue of whether [the claimant] is owed a
duty of good faith and fair dealing as a party to the insurance contract.” 19 The distinction
between first-party and third-party insurance agreements is not always clear. 20 Typically, a firstparty insurance agreement is “where the insurer agrees to pay claims submitted to it by the
insured for losses suffered by the insured . . . .” 21 In contrast, a third-party agreement “is one
where the insurer contracts to defend the insured against claims made by third parties against the
insured and to pay the resulting liability, up to the specified dollar limit.” 22 Under a third-party
agreement, the third-party claimant lacks standing to sue for bad faith. 23

18

Id. at 865.

19

See Cannon, 994 P.2d at 828.

20

See Sperry, 990 P.2d at 383–84 (concluding that the claimant was third-party despite
the claimant paying for the insurance premiums and being a named insured under the
agreement).
21

Id. (internal citations and quotation marks omitted); accord Beck v. Farmers Ins. Exch.,
701 P.2d 795, 798 (Utah 1985) (concluding that Beck was a first-party claimant because he sued
his own insurance company for negotiating his uninsured motorist claim in bad faith); Billings v.
Union Bankers Ins. Co., 918 P.2d 461, 464–65 (Utah 1996) (concluding that a catastrophic
health insurance contract between the plaintiff and his insurance company was a first-party
agreement); Lieber v. ITT Hartford Ins. Center, Inc., 15 P.3d 1030, 1037 (Utah 2000)
(explaining that an agreement whereby the insurer would pay uninsured motorist benefits to the
insured’s employee was first-party because the employee steps into the employer’s shoes).
22

Sperry, 990 P.2d at 383 (concluding that a named co-insured was a third-party claimant
when she sued her co-insured) (internal citations and quotation marks omitted); accord Pixton,
809 P.2d at 749 (concluding that Pixton is a third-party claimant because she has no relevant
contractual relationship with State Farm and her claims “are grounded in her status as an injured
claimant attempting to recover against State Farm as the insurer of the tortfeasor”); Savage, 908
P.2d at 866 (concluding that the insurer owed no duty of good faith to Savage because she was a
third-party claimant).
23

See Gibbs M. Smith, Inc. v. U.S. Fid. & Guar. Co., 949 P.2d 337, 344 (Utah 1997).
4

Pursuant to this framework, the characterization of an insured as first or third party is
“transaction specific,” and the party that bargained for or paid the insurance premiums is not
necessarily indicative. 24 For example, in Sperry v. Sperry, Mr. and Mrs. Sperry were insured
under an automobile policy paid for with marital funds. 25 Later, the couple’s son was killed in
an automobile accident when Mr. Sperry fell asleep while driving. 26 After the accident, Mrs.
Sperry filed a claim with the insured against her husband for their son’s wrongful death, and
Mrs. Sperry alleged that the insurer negotiated in bad faith. 27 Mrs. Sperry sued the insurer for
bad faith, and the issue on appeal was whether she was a first or third party claimant. 28 Mrs.
Sperry argued that she was a first-party claimant because she was a named insured, the premiums
were paid for by community property, and she was suing as a co-insured covered by the liability
provisions of the policy. 29 The court rejected these arguments and explained that Mrs. Sperry
was a third-party claimant because her “claim is based upon her husband’s alleged negligence
and not upon her own coverage under the policy.” 30 Thus, “the characterization of any insured
as a first or third party must be transaction specific.” 31
Here, Travelers’ argument—that Marc is a third-party claimant because he did not
bargain for or pay premiums and he lacks any contractual relationship with Travelers—fails for

24

Sperry, 990 P.2d at 384.

25

Id. at 382.

26

Id.

27

Id.

28

Id. at 382–83.

29

Id. at 383.

30

Id. at 384.

31

Id.
5

the same reason the Sperry court rejected Mrs. Sperry’s argument. 32 Travelers, like Mrs. Sperry,
ignores the fact that characterizations of an insured as a first or third party must be transaction
specific, and here the transaction between Marc and Travelers is first-party rather than thirdparty.
Marc is a first-party claimant because, under the Agreement, Travelers agreed to pay “all
sums ‘the insured’ is legally entitled to recover as compensatory damages from the owner or
driver of an ‘underinsured motor vehicle.’” 33 The Agreement defines “insured” as anyone
‘occupying’ a covered ‘auto.’” 34 It is undisputed that Marc was occupying a covered auto when
he was injured in the accident, and thus it is likely that Marc is an “insured” under the
Agreement. Marc is a first-person insured because Travelers agreed to pay claims submitted to it
for Marc’s losses.
Travelers argues that, although Marc is listed as an authorized driver and he was
occupying a covered auto, he is not a named insured because only Quality Appliance contracted
with Travelers for the insurance policy. Marc, however, is not suing Quality Appliance who in
turn is seeking indemnification from Travelers. Instead, Marc’s claim springs from the contract
Quality Appliances made with Travelers. Quality Appliances paid Travelers to compensate
Marc for injuries he might suffer from a third-party underinsured motorist. That is first-party
liability. In other words, this transaction lacks all indicia of a third-party agreement because
Marc is not suing his employer who in turn is seeking indemnification from Travelers. 35 Indeed,

32

Docket No. 21, at 5; Docket No. 25, at 12.

33

Docket No. 23, Ex. E at 9.

34

Docket No. 23 Ex. C at 1.

35

See Lieber, 15 P.3d at 1037 (“any argument that [the insurer’s] liability to [the
claimant] is third-party rather than first-party would be incorrect. [Claimant’s] claim springs
6

the Agreement’s Underinsured Motorists Coverage section says nothing about indemnifying
Quality Appliance from third-party claims. Instead that section expressly covers injured,
authorized drivers who suffer personal injury. 36 This is classic first, not third-party coverage.
In sum, Travelers’ Motion is denied because it has not demonstrated that Marc is barred
by Utah law from asserting a bad faith claim. To do so, Travelers would have had to
demonstrate that Marc, as a matter of law, was a third-party claimant rather than first-party.
Travelers’ has not done so, and therefore its motion should be denied.
IV.

CONCLUSION

It is therefore
ORDERED that Defendants’ Motion for Partial Summary Judgment (Docket No. 21) is
DENIED. In accordance with the Court’s prior Order (Docket No. 22), the parties must
participate in mediation within 45 days of this Order
Dated this 16th day of September, 2019.
BY THE COURT:

Ted Stewart
United States District Judge

from the contract [Claimant’s employer] made with [the insurer]. It is therefore first-party
(contractual) liability.”).
36

See Docket No. 21, Ex. B at 44–48.
7