Tinsley v. American Family Connect Property and Casualty Insurance Company

Filing 65

ORDER GRANTING 56 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; Plaintiff's Motion in Opposition to ECF No. 56 and for Summary Judgment ECF No. 62 is DENIED as moot. File is CLOSED. Signed by Judge Thomas O. Rice. (SG, Case Administrator) (Service of Notice on parties not registered as users of the Court CM/ECF system accomplished via USPS mail.)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Nov 13, 2023
SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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LAUREL TINSLEY,
Plaintiff,

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v.

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AMERICAN FAMILY CONNECT
PROPERTY AND CASUALTY
INSURANCE COMPANY,

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Defendant.

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NO. 2:22-CV-0099-TOR
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

BEFORE THE COURT is Defendant’s Motion for Summary Judgment.

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ECF No. 56. This matter was submitted for consideration without oral argument.

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The Court has reviewed the record and files herein and is fully informed. For the

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reasons discussed below, Defendant’s Motion for Summary Judgment (ECF No.

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56) is GRANTED.

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BACKGROUND

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This matter arises from a denial of insurance coverage stemming from

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damage that occurred on April 18, 2021. Defendant issued a homeowner policy
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 1

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(“the policy”) to Plaintiff on November 20, 2020. ECF No. 59 at 6. In relevant

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part, the policy did not cover loss or damage caused by water, whether such

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damage be the direct cause of the loss, or that it initiated a sequence of events that

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resulted in loss, including contributory weather conditions. ECF No. 58-3 at 10,

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11. Under the terms of the policy, water damage means, “flood, surface water,

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waves, tidal water or overflow of a body of water.” Id at 10. The policy explicitly

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states it does not cover, “spray from any of these, whether or not driven by wind.”

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Id. The policy also contains an exclusion for “faulty, inadequate, or defective

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construction, reconstruction, repair, remodeling or renovation” and “maintenance

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of a part or all of the residence premises or any other property.” Id. at 11. Finally,

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the policy excludes “wear and tear . . . damage that occurs over a period of time or

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from lack of normal maintenance; defective workmanship; inherent vice; latent

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defect . . . wet or dry rot” nor does it cover “freezing, thawing, pressure or weight

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of water or ice, whether driven by wind or not, to a fence, pavement, patio,

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swimming pool, foundation, retaining wall, bulkhead, piece, wharf or dock.” Id.

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Plaintiff contacted Defendant on or about May 3, 2021, to report that her

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dock and retaining wall had been damaged by a windstorm occurring on or about

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April 18, 2021. ECF No. 59 at 2, ¶ ¶ 2, 5. Defendant acknowledged the claim and

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opened an investigation the same day. ECF No. 58-1 at 1. After reviewing

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information provided by Plaintiff of the damaged dock and retaining wall,

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 2

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Defendant issued a denial letter to Plaintiff on June 3, 2023, stating that it

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determined the damage was caused by waves and was thus excluded from the

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policy. Id., ¶¶ 6, 7. Defendant did note that coverage would be available for the

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loss of a swing, but the amount in payment would not exceed the deductible, and

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therefore was unavailable to Plaintiff. ECF No. 58-2 at 2. Within the letter

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denying coverage, Defendant requested that Plaintiff provide additional

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information regarding her claim should she wish to dispute the findings. Id.

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Plaintiff contacted Defendant, asserting that it was wind, not waves, that caused

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damage to the dock and retaining wall. ECF No. 59 at 3, ¶ 8. Plaintiff’s position

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was that a windstorm caused the dock to crash against the rocks beneath it and

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pointed to damaged bark on the anchor tree the dock was chained to. ECF No. 62

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at 10. She also asserted that the dock’s broken barrel ties and released floatation

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barrels could only be the result of damage caused by high winds. Id.

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In response, Defendant retained Donan Engineering (“Donan”) to investigate

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the cause and extent of the damage. ECF No. 59 at 4, ¶ 9. Defendant alleges that

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Plaintiff was reluctant to give the engineer access to her property to make an

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assessment, resisting for a period of July 16 until August 24, 2021. Id., ¶ 10.

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Plaintiff ultimately allowed the engineer onto her property on September 14, 2021.

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Id., ¶ 11.

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
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After inspecting the property, the engineer’s first report found that “[t]he

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docks were compromised by age-related deterioration and were made susceptible

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to failure from otherwise non-damaging winds,” based on an analysis of weather

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patterns on the alleged date of damage and analysis of the physical structure. ECF

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No. 58-4 at 8-9. Additionally, Defendant requested a second report from Donan

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providing clarification on the cause of the damage to the docks. ECF No. 58 at 5.

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The second report, issued on September 30, 2021, determined that given the speed

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of the wind and the high-water levels on the alleged day of the incident, waves,

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rather than wind, caused damage to the dock and seawall. ECF No. 58-5 at 2-3.

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Specifically, the report noted that “the waves would not have needed to be

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excessively large to push the dock ashore.” Id. at 3.

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After reviewing the reports from the Donan Engineering and the provisions

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of Plaintiff’s policy, Defendant determined that denial of benefits was appropriate

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and gave written and telephonic notice to Plaintiff on September 30, 2021. ECF

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No. 58 at 5.

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Plaintiff first filed suit on April 14, 2022, in Lincoln County Superior Court,

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and Defendant removed the action to this Court on May 5, 2022. ECF No. 1. In

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her Second Amended Complaint, Plaintiff alleged breach of contract, breach of

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fiduciary duty, breach of the duty of good faith, violation of the Insurance Fair

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Conduct Act (“IFCA”), and a claim for declaratory relief based on her April 18,

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2021, storm-related damages claim. 1 ECF No. 27 at 6-14.

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Defendant filed the present motion for summary judgment on September 19,

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2023, arguing that Plaintiff’s policy does not cover the loss alleged, and that

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Plaintiff has not set forth sufficient evidence to support her breach of fiduciary

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duty, breach of good faith, or violation of IFCA. ECF No. 56.

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Plaintiff, now proceeding pro se, has made a series of untimely responses to

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Defendant’s Motion for Summary Judgment, each with a varying degree of

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responsiveness to the matter at hand: the denial of coverage for the damage to

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Plaintiff’s dock on April 18, 2021. 2 The Court has considered Plaintiff’s late

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filings.
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The Court previously dismissed Plaintiff’s July 23, 2019, claim as outside the

one-year time limitation set forth by the policy. ECF No. 33. The Court does not
consider any of the previously dismissed claims in the matter at hand.
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Local Civil Rule 7(c)(2)(A) allows pro se litigants 30 days to respond to

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dispositive motions, such as motions for summary judgment. Defendant filed for

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summary judgment on September 19, 2023. Plaintiff responded on November 7,

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2023, and November 8, 2023, well outside of the 30-day requirement. Failure to

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comply with requirements may result in the Court entering an order adverse party

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violating the rules. LCivR 7(e).

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
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November 7, 2023, Response
On November 7, 2023, Plaintiff filed an initial untimely response which was

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unresponsive to the arguments made in Defendant’s Motion for Summary

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Judgment. ECF No. 61. Plaintiff’s initial response did include confirmation that

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she has made two IFCA Notice and Complaint claims with the Washington State

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Insurance Commissioner, one on November 13, 2020, and one on August 18, 2023.

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Id. at 2, 3. Further, she confirms that Defendant responded to at least her latest

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filing on August 17, 2023. Id. at 2-3. However, the response contains no

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additional details about the substance of her complaint or Defendant’s response.

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Id. at 3.

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November 8, 2023, Motion in Opposition and for Summary Judgment

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On November 8, Plaintiff filed an additional untimely response in opposition

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to the Motion for Summary Judgment and Motion for Summary Judgment. ECF

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No. 62. This filing contains a recitation of Plaintiff’s prior time-barred claims,

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which Plaintiff appears to be relitigating despite dismissal. See generally id. at 4-

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9. As to the matter at hand, the second response contains many of Plaintiff’s prior

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allegations, including her assertion that bark damage on the dock’s anchor tree

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demonstrates wind damage and that the water level was lower than Defendant has

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asserted at the time of damage. ECF No. 62 at 10. She asserts that she has

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provided experts and evidence to the contrary for Defendant’s review, but no

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expert report or any other documentation is attached within her response, nor does

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it appear she has produced any in the record. Id. at 8, 10. Plaintiff’s response does

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not directly address any of the substantive issues contained in Defendant’s motion

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regarding breach of contract, breach of the duty of good faith, or breach of a

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fiduciary duty.

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November 8, 2023, Supplemental

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In addition to her Motion in Opposition and Motion for Summary Judgment,

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Plaintiff also filed a supplemental to her motion. The supplemental also rehashes

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claims that have previously been dismissed and are not at issue in the current

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motion the Court is considering herein. ECF No. 63 at 5. She refers to experts and

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additional information provided to the Defendant which support her theory of wind

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damage but supplies no additional information. Id. at 1, 2.

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Plaintiff’s assertions that are relevant to the matter at hand include her

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position that: Defendant did not complete an inspection in 30 days per their stated

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policy in violation of IFCA; Defendant intentionally based the denial of benefits

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around a smaller dock that was not the subject of the claim; and that Donan

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Engineering fabricated reports to allow for Defendant to deny her claims. Id. at 2.

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Plaintiff also asserts that Defendant has not honored its contractual obligation to

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handle claims in a timely manner. Id. at 6.

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//

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
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DISCUSSION

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Summary Judgment Standard
The Court may grant summary judgment in favor of a moving party who

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demonstrates “that there is no genuine dispute as to any material fact and that the

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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling

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on a motion for summary judgment, the court must only consider admissible

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evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).

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The party moving for summary judgment bears the initial burden of showing the

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absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S.

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317, 323 (1986). The burden then shifts to the non-moving party to identify

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specific facts showing there is a genuine issue of material fact. See Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla

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of evidence in support of the plaintiff’s position will be insufficient; there must be

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evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.

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For purposes of summary judgment, a fact is “material” if it might affect the

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outcome of the suit under the governing law. Id. at 248. Further, a dispute is

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“genuine” only where the evidence is such that a reasonable jury could find in

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favor of the non-moving party. Id. The Court views the facts, and all rational

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inferences therefrom, in the light most favorable to the non-moving party. Scott v.

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Harris, 550 U.S. 372, 378 (2007). Summary judgment will thus be granted

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“against a party who fails to make a showing sufficient to establish the existence of

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an element essential to that party’s case, and on which that party will bear the

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burden of proof at trial.” Celotex, 477 U.S. at 322.

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Although pro se pleadings are held to less stringent standards than those

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prepared by attorneys, pro se litigants in an ordinary civil case should not be

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treated more favorably than parties with attorneys of record. See Jacobsen v.

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Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). Plaintiff’s multiple responses to

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Defendant’s Motion to Dismiss are not timely, and the Court also notes that, even

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taken together, do not address many points of the argument levied by Defendant.

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A. Breach of Contract

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Defendant contends that the damage to Plaintiff’s dock was caused by waves

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and lack of maintenance which are not covered by the policy. ECF No. 56 at 6.

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Therefore, there can be no breach of contract because a there was no breach of

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duty. Id. Plaintiff’s only reference to breach of contract is that Defendant failed to

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fulfill obligations in a timely manner, though the Court notes that Plaintiff

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continues to allude to previously dismissed claims. ECF No. 63 at 6. However,

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Plaintiff does not deny Defendant’s allegation that she resisted the progression of

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the claims process, thereby delaying the conclusion of her claim.

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The interpretation of an insurance policy is a question of law. Quadrant
Corp. v. Am. States Ins. Co., 154 Wash. 2d 165, 171 (2005). Insurance policies are

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reviewed as contracts, and are considered under a “fair, reasonable, and sensible

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construction as would be given to the contract by the average person purchasing

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the insurance.” Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wash.2d

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654, 665-6 (2000). When the language of the insurance policy is clear and

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unambiguous, it must be enforced as written. Shepard v. Foremost Ins. Co., No.

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C08-434 RAJ, 2009 WL 675093, at *6 (W.D. Wash. Mar. 11, 2009), aff'd, 365 F.

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App'x 76 (9th Cir. 2010).

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In her initial response, Plaintiff leaves uncontested Defendant’s assertion

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that the damage was caused by waves and lack of maintenance of the dock. ECF

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No. 61. In her second response and supplemental, Plaintiff alleged that the dock

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was damaged by wind rather than water and offers as evidence tree bark damage

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and references photographic proof of lower water level. ECF No. 62 at 10; ECF

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No. 63 at 2. The Court notes that such photographs were not included in this

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response. In her supplemental materials, Plaintiff again asserts that experts have

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proven that the damage was caused by wind, and that Defendant took into account

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the incorrect dock in making their determination. ECF No. 63 at 2.

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Viewing all the facts presented in light most favorable to Plaintiff, she has

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offered nothing more than conclusory allegations for the Court to consider.

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Defendant asserts that, after its own initial investigation, and inspection by Donan,

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which resulted in two reports, the damage to the dock was ultimately caused by

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water combined with structural defects, and therefore not covered by the policy.

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ECF No. 56 at 6. The policy pertaining to water and structural integrity is clear,

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and the Court will not find ambiguity where there is none. Without any additional

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evidence offered by Plaintiff, the Court finds that the Defendant did not breach a

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duty of the contract with Plaintiff because her insurance policy did not cover the

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damage to her dock.

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B. Breach of Fiduciary Duty/Breach of Good Faith

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Defendant claims that its denial of coverage for Plaintiff’s dock was

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reasonable, and therefore no violation of a fiduciary duty or duty of good faith

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exists. The Court agrees. Under Washington law, insurers owe their insured a

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quasi-fiduciary duty to “exercise a high standard of good faith which obligates it to

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deal fairly and give ‘equal consideration’ in all matters to the insured’s interests.”

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Van Noy v. State Farm Mut. Auto. Ins. Co., 142 Wash. 2d 784, 794 (2001).

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Claims of insurer bad faith “are analyzed applying the same principles as

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any other tort: duty, breach of that duty, and damages proximately caused by any

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breach of duty.” Smith v. Safeco Ins. Co., 150 Wash.2d 478, 485 (2003). To

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establish bad faith, Plaintiffs bear the burden of showing that “breach was

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unreasonable, frivolous, or unfounded.” Kirk v. Mt. Airy Ins. Co., 134 Wash. 2d

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558, 560 (1998). Bad faith will not be found where a denial of coverage or a

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failure to provide a defense is based upon a reasonable interpretation of the

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insurance policy. Transcontinental Ins. Co. v. Washington Pub. Utils. Dists.' Util.

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Sys., 111 Wash.2d 452, 470 (1988). The question the Court considers is whether

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the denial was reasonable, not whether the insurers interpretation was correct.

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Wright v. Safeco Ins. Co. of Am., 124 Wash. App. 263, 279 (2004).

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Here, as demonstrated by Defendant’s several declarations, denial of

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benefits was based on an investigation of the property and a review of the policy.

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Plaintiff accuses defendant of fraudulent behavior in creation of the report and the

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ultimate denial of her claim but offers nothing by way of proof. ECF No. 63 at 2.

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Defendant invited Plaintiff to provide evidence upon the initial denial of her claim

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and stayed in contact with her throughout the investigative process, requesting two

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separate reports be produced. Additionally, Defendant did include information and

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photographs provided by Plaintiff, as evidenced by their inclusion in a report

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produced by Donan. ECF No. 58-4 at 4, 19. Despite Plaintiff’s allegations,

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Defendant does make a distinction between the larger and smaller dock and details

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the respective states each dock was found in at the time of the engineer’s

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inspection. ECF No. 58-4 at 4, 5, 13, 17.

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Further, Plaintiff insinuates in the supplemental to her motion in opposition

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that Defendant has breached its duty of good faith in the handling of her claim by

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failing to provide inspection within 30 days. ECF No. 63 at 2. In addition, she

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seems to argue that Donan was unfit to complete the inspection due to inherent

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bias. Id.
Under relevant Washington law, an insurer must complete an inspection

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within thirty days after notice of a claim, unless the investigation cannot

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reasonably be completed within that time. WAC 484-30-370. “All persons

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involved in the investigation of a claim must provide reasonable assistance to the

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insurer in order to facilitate compliance with this provision.” Id.

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Defendant asserts that it completed an investigation of the claim within a

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month, sending an initial denial of coverage letter on June 3, 2021. ECF No. 59 at

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3. When Plaintiff disputed the findings, Defendant retained Donan to conduct a

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more in-depth investigation. Id. at 4, ¶ 9. Plaintiff stonewalled access to the

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property for over a month, and the engineer did not actually complete the

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inspection until nearly two months later. ECF No. 59 at 4, ¶¶ 10, 11.

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The Court finds that Defendant did not breach its duty of good faith

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because the initial denial of coverage letter, which was based on an investigation

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conducted by Defendant, within the thirty-day timeframe, June 3, 2021. Further

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Defendant, in good faith, made repeated attempts to provide a thorough and

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detailed analysis of the damage to Plaintiff’s property, despite Plaintiff’s

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opposition which she does not contest. While Plaintiff asserts that Donan was

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biased and corrupt, she provides no evidence to support her position.

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Plaintiff has not provided any evidence to dispute the investigation done by

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Defendant was conducted in good faith, and therefore the Court finds Defendant’s

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denial of coverage reasonable.

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C. Violation of the Insurance Fair Conduct Act

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Finally, the Court finds that the Defendant did not violate the IFCA for

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many of the same reasons articulated above. As a preliminary matter, the process

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of filing an IFCA claim with the Washington State Insurance Commissioner is a

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mechanism which provides notice to potential defendants but does not award

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damages or make findings independent of a decision by a court. Beasley v. GEICO

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Gen. Ins. Co., 23 Wash. App. 2d 641, 655 (2022), rev. denied, 200 Wash. 2d 1028

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(2023). Instead, IFCA creates a private right of action in favor of an insured whose

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insurance company unreasonably denies its claim. RCW 48.30.015. The statute

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provides, in relevant part, that:

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Any first party claimant to a policy of insurance who is unreasonably
denied a claim for benefits by an insurer may bring an action ... to
recover the actual damages sustained, together with the costs of the
action, including reasonable attorneys' fees and litigation costs[.]
RCW 48.30.015.
The statute also specifies that a first-party claimant may sue his or her

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insurance company for violating any of the claims-handling regulations

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promulgated by the Washington State Office of the Insurance Commissioner at

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WAC 284–30–330 et seq. RCW 48.30.015(5). To make a claim under the IFCA,

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a plaintiff must show more than just a regulatory violation, it must be demonstrated

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that the denial of insurance coverage or benefits was unreasonable. See Perez-

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Crisantos v. State Farm Fire & Cas. Co., 187 Wash.2d 669, 680, 683 (2017)

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(citing Wash. Rev. Code 48.30.015(1)).

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Defendant offered a reasonable reading of its policy supported by two

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investigative reports. Plaintiff was given several opportunities to supply evidence

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to the contrary that it was wind, rather than water, that caused damage to her dock.

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Other than her IFCA Notice and Consumer Complaints filed on August 17, 2023,

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and November 13, 2020, Plaintiff offers no evidence to support her IFCA claim,

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and thus does not carry her burden.

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CONCLUSION

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Viewing all facts in the light most favorable to Plaintiff, summary judgment

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is proper because she has failed to meet her burden of rebutting Defendant’s

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assertion that no material facts remain in the case. In reaching summary judgment

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for Defendant, Plaintiff’s Motion for Summary Judgment is rendered moot.

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//

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//

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//

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//

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ACCORDINGLY, IT IS HEREBY ORDERED:

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1. Defendant’s Motion for Summary (ECF No. 56) is GRANTED.

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2. Plaintiff’s Motion in Opposition to ECF No. 56 and for Summary

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Judgment (ECF No. 62) is DENIED as moot.

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3. The deadlines, hearings and trial date are VACATED.

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The District Court Executive is directed to enter this Order and Judgment,

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furnish copies to parties, and CLOSE the file.
DATED November 13, 2023.

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THOMAS O. RICE
United States District Judge

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