Wieler v. National Indemnity Company et al

Filing 23

ORDER GRANTING 6 MOTION TO DISMISS. Defendant Norgard is DISMISSED without prejudice. Party Lisa Norgard terminated. Signed by Chief Judge Stanley A Bastian. (WMK, Case Administrator)

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

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Jun 04, 2024

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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9 DON WIELER, as the personal
10 representative of the estate of Eddie Todd,
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Plaintiff,
ORDER GRANTING MOTION

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No. 2:23-CV-00285-SAB

v.

TO DISMISS

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15 NATIONAL INDEMNITY COMPANY,
16 a foreign entity; LISA NORGARD,
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Defendants.

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Before the Court is Defendant’s Lisa Norgard’s Motion to Dismiss, ECF No.

22 6. Plaintiff is represented by Marshal W. Casey. Defendant National Indemnity
23 Company is represented by Jeremy T. Knight and Jodi A. McDougal. Defendant
24 Lisa Norgard is represented by Jacquelyn A. Beatty. The motion was considered
25 without oral argument.
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Defendant Lisa Norgard (“Norgard”) moves the Court to dismiss all of

27 Plaintiff’s claims against Norgard with prejudice. Upon review, and being fully
28 informed, the Court grants Norgard’s motion.
ORDER GRANTING MOTION TO DISMISS # 1

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Facts

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The following facts are drawn from Plaintiff’s Complaint, ECF No. 1.

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This action arises out of an automobile collision that occurred on July 8,

4 2021. Eddie Todd (“Todd”) was a passenger in one of the vehicles involved in the
5 collision. As a result of the collision, Todd suffered injuries and was entitled to
6 recover compensatory damages from Defendant National Indemnity Company
7 (“National Indemnity”). Todd filed a claim for damages with National Indemnity
8 on May 3, 2022. Norgard, an employee of National Indemnity, took over this claim
9 on June 9, 2022 after no response on his claim for over 30 days.
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From June 9, 2022 to December 28, 2022, Todd corresponded with Norgard

11 and National Indemnity. Plaintiff states that Todd informed Norgard several times
12 that he was suffering from a severe illness and needed his benefits. Todd alleges
13 that Defendants delayed their initial investigations and evaluations of Todd’s
14 injuries stemming from the July 8, 2021 collision. Eventually, Todd’s counsel
15 issued an Insurance Fair Conduct Act (“IFCA”) notice that the delay was an
16 actionable denial of benefits. Later, when Todd’s counsel requested medical
17 information from National Indemnity, Norgard responded that the requested
18 medical information was work product. As a result of not receiving National
19 Indemnity’s medical opinion of his claim, Todd sought out and received a
20 declaration of causation from a separate provider, Dr. Lundstrum.
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Norgard did not respond to Dr. Lundstrum’s declaration of causation for

22 three weeks. On September 23, 2022, Todd’s counsel, knowing of Todd’s terminal
23 illness, offered to arbitrate this matter so it could be resolved more quickly.
24 Norgard responded 11 days after the arbitration offer to respond with an offer that
25 was unacceptable to Todd.
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Todd was concerned his claim would outlive his terminal illness and

27 therefore participated in a deposition. Plaintiff alleges that Norgard continued to
28 review Todd’s claim and ordered another medical review. At that time, National
ORDER GRANTING MOTION TO DISMISS # 2

1 Indemnity indicated to Todd that no more money would be offered (totaling
2 $47,000).
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Todd died on February 15, 2023. Plaintiff represents Todd’s Estate. Among

4 other allegations against National Indemnity, Plaintiff alleges two causes of action
5 against Norgard – (1) bad faith and (2) a violation of the Washington Consumer
6 Protection Act (“CPA”).
Legal Standard

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A complaint must contain “a short and plain statement of the claim showing

9 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) allows a
10 party to move for dismissal if the plaintiff has failed to state a claim upon which
11 relief can be granted. Fed. R. Civ. P. 12(b)(6). Dismissal under this rule is only
12 proper if there is either a “lack of a cognizable legal theory” or “the absence of
13 sufficient facts alleged under a cognizable legal theory.” Taylor v. Yee, 780 F.3d
14 928, 935 (9th Cir. 2015); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th
15 Cir. 1990). When considering a 12(b)(6) motion, the court accepts the allegations in
16 the complaint as true and construes the pleading in the light most favorable to the
17 party opposing the motion. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th
18 Cir. 2008). However, this does not require the Court “to accept as true legal
19 conclusions couched as factual allegations.” Parents for Privacy v. Barr, 949 F.3d
20 1210, 1221 (9th Cir. 2020).
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To survive a motion to dismiss, the plaintiff must allege “enough facts to state

22 a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
23 544, 570 (2007); see also Levitt v. Yelp!, Inc., 765 F.3d 1123, 1135 (9th Cir. 2014)
24 (requirements of notice pleading are met if plaintiff makes a short and plain
25 statement of their claims). A claim is plausible on its face when “the plaintiff pleads
26 factual content that allows the court to draw the reasonable inference that the
27 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
28 (2009). The allegations must be enough to raise the right to relief above a speculative
ORDER GRANTING MOTION TO DISMISS # 3

1 level. Twombly, 550 U.S. at 555. It is not enough that a claim for relief be merely
2 “possible” or “conceivable;” instead, it must be “plausible on its face.” Id. at 556.
Applicable Law

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Washington insurance companies, and not their employees, owe a duty of

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5 good faith, both under the common law and under statute in RCW 48.01.030,
6 based on a ‘quasi fiduciary’ relationship … No such relationship exists between an
7 insurance company’s employees and the insureds.” Wise v. Gov’t Employees Ins.
8 Co., No. 3:23-CV-05111-RJB, 2023 WL 3568510, at *2 (W.D. Wash. May 19,
9 2023). Furthermore, the Wise Court stated, “[t]here is no basis to conclude that [an
10 insurance employee] is subject to personal liability for insurance bad faith claims
11 or claims under the CPA.” Id. No cause of action exists against [an] employee of
12 an insurance company if the employee is acting within the scope of their
13 employment. Mercado v. Allstate Ins. Co., 340 F.3d 824, 826 (9th Cir. 2003). Put
14 another way, “[e]mployee adjusters are not subject to personal liability for
15 insurance bad faith or per se claims under the CPA, because employee adjusters
16 are outside the quasi-fiduciary relationship.” Keodalah v. Allstate Insurance Co.,
17 194 Wn.2d 339, 353 (2019).
Discussion

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Keodalah and Wise are clear, therefore, Norgard cannot be a Defendant in

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20 the above-mentioned action. Norgard’s correspondence, as an insurance adjuster of
21 National Indemnity, with Todd was outside the quasi-fiduciary relationship
22 between insurer and insured described in Keodalah. When addressing Todd’s
23 claims, which stemmed from his injuries sustained in an automobile collision on
24 July 8, 2021, Norgard worked within the scope of her employment with National
25 Indemnity. Therefore, the bad faith and CPA claims against Norgard are dismissed,
26 and Norgard is terminated as a defendant in this matter.
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ORDER GRANTING MOTION TO DISMISS # 4

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Accordingly, IT IS HEREBY ORDERED:

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1.

Defendant Lisa Norgard’s Motion to Dismiss Under FRCP 12(b)(6),

3 ECF No. 6, is GRANTED.
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2.

All of Plaintiff’s claims against Defendant Norgard (allegedly

5 violating (1) Bad Faith and (2) the Washington Consumer Protection Act) are
6 DISMISSED.
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3.

Defendant Norgard is DISMISSED without prejudice.

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4.

The District Court Clerk is directed to TERMINATE Defendant

9 Norgard from the above-captioned matter.
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IT IS SO ORDERED. The District Court Clerk is hereby directed to enter

11 this Order and to provide copies to counsel.
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DATED this 4th day of June 2024.

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Stanley A. Bastian

Chief United States District Judge

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ORDER GRANTING MOTION TO DISMISS # 5