Nesbitt v. Progressive Northwestern Insurance Company
Filing
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ORDER granting dft's 30 Motion for Summary Judgment by Judge Robert S. Lasnik.(RS)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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ROBERT E. NESBITT,
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Plaintiff,
Case No. C11-2117RSL
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v.
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PROGRESSIVE NORTHWESTERN
INSURANCE COMPANY,
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ORDER GRANTING MOTION
FOR SUMMARY JUDGMENT
Defendant.
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I. INTRODUCTION
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This matter comes before the Court on a motion for summary judgment (Dkt. # 30) filed
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by defendant Progressive Northwestern Insurance Company (“Progressive”). Progressive
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requests that the Court dismiss all remaining claims filed by plaintiff Robert Nesbitt, who asserts
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claims arising out of an insurance contract with Progressive. The Court heard oral argument on
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October 29, 2012.
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For the reasons set forth below, the Court grants defendant’s motion.
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II. DISCUSSION
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Background Facts
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Plaintiff has two cars, a 1987 Mercedes-Benz and a 1995 Mitsubishi, both of which are
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insured by Progressive under a common policy. Order (Dkt. # 11) at 1-2. The policy contains
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FOR SUMMARY JUDGMENT - 1
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personal injury protection (“PIP”) up to a limit of $10,000 and underinsured motorist (“UIM”)
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coverage up to $25,000 per person. Id. at 2.
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On July 15, 2010, plaintiff was washing his cars in the street when another driver crashed
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into the Mitsubishi, propelling the Mitsubishi into the back of the Mercedes. Id. The Mercedes
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shot forward and hit the plaintiff. Id. Plaintiff suffered serious injuries. Id. Plaintiff reported
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the claim to Progressive the following day. Motion (Dkt. # 30) at 2.
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On April 4, 2011, the third-party tortfeasor’s insurance company offered to pay plaintiff
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$50,000, the tortfeasor’s policy limits, to settle plaintiff’s personal injury claim. Notice of
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Removal (Dkt. # 1), Ex. B (the “Complaint”) at 4. Plaintiff, through his attorney, offered
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Progressive the opportunity to pay plaintiff $50,000 in exchange for his right to sue the third-
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party tortfeasor. Response (Dkt. # 32) at 22. Progressive did not respond and as a result,
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plaintiff informed Progressive that he planned to accept the offer from the third-party
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tortfeasor’s insurance company. Id. at 24. At that time, plaintiff also requested that Progressive
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open a file for his UIM claim and assign an adjustor. Id. Plaintiff did not receive a response
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from Progressive. Id. at 6.
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Unfortunately, the third-party tortfeasor’s insurance company subsequently determined
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that plaintiff could not recover PIP medical benefits from it because plaintiff was not actually
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struck by its insured auto. Id. at 27. After receiving notice of this decision, Progressive re-
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opened plaintiff’s PIP claim and paid him $9,217.28. Id. at 30-31. Progressive also paid
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plaintiff $3,043.29 for property damage to the Mitsubishi, $3,600 for property damage to the
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Mercedes, and $25,000 in UIM coverage. Order at 2.
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On November 10, 2011, plaintiff filed suit against Progressive in King County Superior
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Court for breach of contract and unfair and deceptive trade practices. Complaint. The case was
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removed to federal court on December 16, 2012 by Progressive. On May 25, 2012, the Court
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granted Progressive’s motion for partial summary judgment, dismissing plaintiff’s contract-
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based claims. Order at 13. Plaintiff’s remaining claims against Progressive include violations of
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ORDER GRANTING MOTION
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Washington’s Consumer Protection Act, RCW 19.86.090, and the Insurer Fair Conduct Act,
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RCW 48.30.15. Motion at 1-2. Plaintiff also alleges that Progressive acted in bad faith. Id.
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Progressive now requests that the Court dismiss all of plaintiff’s remaining claims.
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B.
Summary Judgment Standard
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Summary judgment is appropriate when, viewing the facts in the light most favorable to
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the nonmoving party, the records show that “there is no genuine dispute as to any material fact
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and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Once the
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moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party
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fails to designate, by affidavits, depositions, answers to interrogatories, or admissions on file,
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“specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S.
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317, 324 (1986).
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All reasonable inferences supported by the evidence are to be drawn in favor of the
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nonmoving party. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).
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“[I]f a rational trier of fact might resolve the issues in favor of the nonmoving party, summary
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judgment must be denied.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
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626, 631 (9th Cir. 1987). “The mere existence of a scintilla of evidence in support of the
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non-moving party’s position is not sufficient.” Triton Energy Corp. v. Square D Co., 68 F.3d
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1216, 1221 (9th Cir. 1995). “[S]ummary judgment should be granted where the nonmoving
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party fails to offer evidence from which a reasonable jury could return a verdict in its favor.” Id.
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C.
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Plaintiff’s Request for Continuance
Plaintiff’s vague request for a continuance does not meet the strictures of Federal Rule of
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Civil Procedure 56. Plaintiff does not state what the requested discovery will reveal or how it
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will defeat summary judgment. His vague motion is insufficient to justify a continuance. See,
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e.g., Tatum v. City & County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (“A party
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requesting a continuance pursuant to Rule 56([d]) must identify by affidavit the specific facts
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that further discovery would reveal, and explain why those facts would preclude summary
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judgment.”). Accordingly, plaintiff’s motion for a continuance is denied.
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D.
Defendant’s Motion to Strike
In its reply, Progressive makes two requests to strike documents submitted by plaintiff.
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First, Progressive requests that the Court strike plaintiff’s entire response as untimely pursuant to
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Local Civil Rule 7(d)(3). Reply (Dkt. # 33) at 2. In light of the strong interest in resolving
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disputes on their merits and the fact that Progressive received plaintiff’s response just one day
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after the deadline, the Court has considered plaintiff’s untimely response. The Court assumes
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that plaintiff’s counsel will take whatever steps are necessary to avoid future technical problems
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in filing on the CM/ECF system, including not waiting until the last minute before attempting to
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docket his responsive memorandum.
Second, Progressive requests that the Court strike the exhibits attached to plaintiff’s
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response because they were submitted without a separate affidavit or declaration. Id. at 2-3.
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Although the better practice is to submit a separate supporting affidavit or declaration with
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exhibits, the Court finds that plaintiff’s counsel’s signed statement in the body of response
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provides sufficient authentication for admissibility. See Las Vegas Sands, LLC v. Nehme, 632
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F.3d 526, 533 (9th Cir. 2011). Therefore, the Court denies Progressive’s motion to strike.
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E.
Analysis
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a.
Bad Faith
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Plaintiff claims that Progressive acted in bad faith by initially refusing to process his UIM
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claim without justification, failing to extend PIP coverage and UIM coverage under the
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provisions of the insurance policy issued under the Mitsubishi, and mishandling his PIP claim.
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Complaint at 6-7. In its motion, Progressive requests that the Court dismiss all of plaintiff’s
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remaining claims. Mot. at 17. During oral argument, plaintiff abandoned his claims regarding
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Progressive’s handling of his UIM claim. Therefore, the Court confines its inquiry to plaintiff’s
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claim that Progressive mishandled his PIP claim.
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An insured’s claim of bad faith against the insurer is analyzed using the same framework
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as any other tort. Smith v. Safeco Ins. Co., 150 Wn.2d 478, 485 (2003). To prevail, the insured
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must establish that the insurer’s breach was unreasonable, frivolous, or unfounded. Overton v.
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Consol. Ins. Co., 145 Wn.2d 417, 433 (2002). The Washington Administrative Code (“WAC”)
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contains The Unfair Claims Settlement Practices Regulation, WAC 284-30-300 to 284-30-450,
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governing the conduct of insurance companies in handling claims. A violation of those
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regulations establishes a breach of the duty of good faith. Am. Mfrs. Mut. Ins. Co. v. Osborn,
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104 Wn. App. 686, 697-98 (2001). Plaintiff’s bad faith claim is premised on Progressive’s
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failure to respond to communications about PIP claims in violation of WAC 284-30-330(2) and
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284-30-360(3). Response at 5-6.
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Progressive contends that plaintiff cannot maintain a claim of bad faith because this Court
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determined that “[p]laintiff was not entitled to any further benefits under the policy” and
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dismissed plaintiff’s breach of contract claim. Reply at 7. The Washington Supreme Court has
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previously rejected this line of argument. Coventry Associates v. American States Ins. Co., 136
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Wn.2d 269, 279(1998) (“We hold an insured may maintain an action against its insurer for bad
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faith investigation of the insured’s claim and violation fo the CPA regardless of whether the
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insurer was ultimately correct in determining coverage did not exist. An insurer’s duty of good
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faith is separate from its duty to indemnify if coverage exists.”).
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However, to succeed on a claim of bad faith, an insured must show that he was harmed
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by the insurer’s bad faith conduct. Id. at 277. Plaintiff has not provided any evidence that he
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suffered any specific harm as a result of Progressive’s regulatory violations. See Response at 8.
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Plaintiff’s allegation that he suffers the “burden” of paying medical bills with money he
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received from Progressive is insufficient to prove “actual harm.” St. Paul Fire & Marine Ins. Co.
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v. Onvia, Inc., 165 Wn.2d 122, 133 (2009). Plaintiff has failed to raise a genuine issue of
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material fact as to the harm element and his bad faith claim fails as a matter of law.
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b.
Consumer Protection Act (“CPA”)
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To succeed on a CPA claim, a plaintiff must show (1) an unfair or deceptive act or
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practice in trade or commerce that impacts the public interest, and (2) resulting injury to the
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claimant’s business or property. Am. Mnfs. Ins. Co., 104 Wn. App. at 697. The insured may
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establish the first element by showing that the insurer violated a subsection of WAC 284-30-330.
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Id.
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Plaintiff relies on the same facts underlying his claim of bad faith to assert a claim that
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Progressive violated the CPA. See Response at 8-9. Progressive does not respond to plaintiff’s
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allegation that it violated The Unfair Claims Settlement Practices Regulation in its reply, but
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asserts that plaintiff has not suffered any resulting injury and therefore, his claim cannot succeed.
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Reply at 7-9. The Court agrees with Progressive. Although plaintiff may be able to establish
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that Progressive engaged in an unfair or deceptive act by failing to communicate with him in a
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timely manner, he has not provided any evidence that the alleged unfair act resulted in injury to
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his business or property. Plaintiff’s assertion that Progressive’s conduct “caused him to suffer
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real and actual damages” is insufficient to defeat summary judgment. Baldwin v. Silver, 165
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Wn. App. 463, 471 (2011) (“A nonmoving party cannot defeat a motion for summary judgment
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with conclusory statements of fact”). Therefore, the Court grants Progressive’s motion for
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summary judgment on plaintiff’s CPA claim.
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c.
Insurance Fair Conduct Act (“IFCA”)
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Progressive moves to dismiss plaintiff’s IFCA claim on the grounds that plaintiff was not
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denied coverage, Progressive acted reasonably in paying the amounts due under the policy, and
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plaintiff has not suffered any damages as result of Progressive’s conduct. Motion at 15-16.
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Plaintiff has not raised any arguments or presented any evidence in response to defendant’s
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request for summary judgment on his IFCA claim. The Court considers such a failure to be “an
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admission that the motion has merit.” Local Civil Rule 7(b)(2). Additionally, the Court finds
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that plaintiff’s claim fails as a matter of law because he was not denied coverage. Cardenas v.
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Navigators Ins. Co., 2011 WL 6300253, at *6 (W.D.Wash. Dec. 16, 2011) (“Although violations
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of the enumerated regulations provide grounds for trebling damages or for an award of
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attorney’s fees; they do not, on their own, provide a IFCA cause of action absent an
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unreasonable denial of coverage or payment of benefits.”).
III. CONCLUSION
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For all of the foregoing reasons, the Court GRANTS Progressive’s motion for summary
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judgment (Dkt. # 30). The Court GRANTS the motion as to plaintiff’s claims of bad faith,
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violation of the CPA, and violation of the IFCA. The Clerk of the Court is directed to enter
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judgment in favor of defendant and against plaintiff.
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DATED this 29th day of October, 2012.
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A
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Robert S. Lasnik
United States District Judge
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