Sousie et al v. Allstate Indemnity Company
Filing
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ORDER by Judge Benjamin H. Settle granting in part and denying in part 9 Motion for Partial Summary Judgment. Allstate to file amended answer by May 12, 2017. (TG)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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ALEXANDER M. AND AMY N.
SOUSIE,
CASE NO. C17-5078 BHS
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ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY
JUDGMENT AND FOR MORE
DEFINITE STATEMENT AND
GRANTING DEFENDANT LEAVE
TO AMEND
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This matter comes before the Court on Plaintiffs Alexander and Amy Sousie’s
Plaintiff,
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v.
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ALLSTATE INDEMNITY COMPANY,
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Defendant.
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(“Sousies”) motion for partial summary judgment and for more definite statement (Dkt.
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9). The Court has considered the pleadings filed in support of and in opposition to the
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motion and the remainder of the file and hereby grants in part and denies in part the
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motion for the reasons stated herein.
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I.
PROCEDURAL HISTORY
On January 4, 2017, the Sousies served the Washington Insurance Commissioner
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with a complaint against Defendant and foreign insurer Allstate Indemnity Company
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(“Allstate”). Dkt. 1-1. The Sousies assert a cause of action for breach of their insurance
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agreement and a violation of Washington’s Insurance Fair Conduct Act. Id.
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On February 1, 2017, Allstate removed the matter to this Court. Dkt. 1.
ORDER - 1
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On February 17, 2017, Allstate answered the complaint and asserted the
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affirmative defense that the Sousies’ damages are not covered under the policy of
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insurance because of misrepresentation, concealmend, and lack of ownership. Dkt. 8.
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On March 2, 2017, the Sousies moved for summary judgment and for a more
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definite statement. Dkt. 9. On March 20, 2017, Allstate responded. Dkt. 13. On March
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24, 2017, the Sousies replied. Dkt. 16.
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II.
A.
DISCUSSION
Summary Judgment
The Sousies move for partial summary judgment on jurisdiction, venue, all
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defenses under Federal Rule of Civil Procedure 12(b), the issuance and contents of the
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insurance policy, facts relating to the theft of personal property, and certain other
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affirmative defenses. Dkt. 9 at 6–10.
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1.
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Summary judgment is proper only if the pleadings, the discovery and disclosure
Standard
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materials on file, and any affidavits show that there is no genuine issue as to any material
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fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
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The moving party is entitled to judgment as a matter of law when the nonmoving party
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fails to make a sufficient showing on an essential element of a claim in the case on which
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the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,
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323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,
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could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.
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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must
ORDER - 2
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present specific, significant probative evidence, not simply “some metaphysical doubt”).
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See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists
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if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or
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jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477
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U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
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626, 630 (9th Cir. 1987).
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The determination of the existence of a material fact is often a close question. The
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Court must consider the substantive evidentiary burden that the nonmoving party must
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meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477
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U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual
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issues of controversy in favor of the nonmoving party only when the facts specifically
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attested by that party contradict facts specifically attested by the moving party. The
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nonmoving party may not merely state that it will discredit the moving party’s evidence
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at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.
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Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,
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nonspecific statements in affidavits are not sufficient, and missing facts will not be
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presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).
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2.
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If the court determines at any time that it lacks subject-matter jurisdiction, the
Jurisdiction and Venue
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court must dismiss the action. Fed. R. Civ. P. 12(h)(3). Therefore, the Court denies the
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Sousies’ motion on this issue.
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ORDER - 3
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Allstate concedes personal jurisdiction and venue. Dkt. 13 at 7. Therefore, the
Court grants the Sousies’ motion on these issues.
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3.
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The Sousies’ motion is inappropriate for all other matters at this time. Allstate has
Other Matters
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properly asserted and plead the majority of its defenses. The Court agrees with Allstate
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that a summary judgment motion is an inappropriate means to determine the authenticity
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of the parties’ contract. Forcing Allstate to agree to the facts of the theft of the Sousies’
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property before discovery has even begun is also inappropriate. Therefore, the Court
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denies the Sousies’ motion on these issues.
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4.
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Allstate requests that the Court award sanctions for having to respond to the
Sanctions
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Sousies’ inappropriate motion. Dkt. 13 at 2. “A district court may impose sanctions
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when a motion is not well grounded in fact.” Mossman v. Roadway Exp., Inc., 789 F.2d
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804, 806 (9th Cir. 1986). While portions of the motion are indeed inappropriate, the
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Court is unable to conclude that the motion rises to the level of sanctionable conduct.
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Therefore, the Court denies Allstate’s request for sanctions.
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B.
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Motion to Dismiss
The Sousies move to dismiss Allstate’s defense based on misrepresentation for
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failure to plead the defenses with particularity. Dkt. 9 at 13–17. Although neither party
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has provided binding authority for the proposition that an affirmative defense of fraud
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must be plead with particularity, the weight of authority suggests that such a defense
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must comply with Federal Rule of Civil Procedure 9(b).
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See, e.g., 5A Fed. Prac. &
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Proc. Civ. § 1297 (3d ed. 2004) (“Inasmuch as the defense of fraud cannot be raised in an
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answer under a general denial because Rule 8(c) requires that defense to be pleaded
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affirmatively, the assertion of such a defense is an allegation of fraud and is subject to the
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heightened pleading requirements of Rule 9(b).”). Therefore, the Court grants the
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Sousies’ motion on this issue and grants Allstate leave to file an amended answer.
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III.
ORDER
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Therefore, it is hereby ORDERED that the Sousies’ motion for partial summary
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judgment and for more definite statement (Dkt. 9) is GRANTED in part and DENIED
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in part as stated herein. Allstate must file an amended answer no later than May 12,
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2017.
Dated this 3rd day of May, 2017.
A
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BENJAMIN H. SETTLE
United States District Judge
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ORDER - 5
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