Walker v. Progressive Direct Insurance ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
March 23, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ROCKY WALKER; KRISTI
WALKER,
Plaintiffs-Appellants,
No. 11-5122
v. (D.C. No. 4:09-CV-00556-TCK-PJC)
(N.D. Okla.)
PROGRESSIVE DIRECT
INSURANCE COMPANY,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and GORSUCH, Circuit Judges.
Plaintiffs Rocky and Kristi Walker appeal from the district court’s
decisions granting summary judgment in favor of defendant Progressive Direct
Insurance Company and denying the Walkers’ motion to alter or amend the
judgment. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.
The Walkers were covered by a Progressive insurance policy for their 2003
Chevrolet Tahoe. On July 29, 2008, Ms. Walker called Progressive to report that
their vehicle had been stolen while they were out of town on vacation. The
vehicle was recovered, but it had been burned and suffered damage. On
August 22, Progressive decided to refer the claim to its Special Investigations
Unit (“SIU”) because: (1) the vehicle was for sale at the time of the loss, (2) the
column was not compromised, (3) the vehicle was a “gas guzzler”; and (4) both
sets of keys were in the Walkers’ possession at the time of loss. Aplt. App.,
Vol. 2 at 566. An expert for Progressive testified that these factors are “generally
recognized indicators of insurance fraud.” Id., Vol. 1 at 471. On August 25,
Progressive notified the Walkers that there were certain coverage issues with their
claim and that it was being investigated by the SIU.
On September 9, Progressive requested that the Walkers provide them with
a key for inspection and copies of vacation photographs to prove that they were
out of town when the theft occurred. As of September 16, Progressive had not
received the requested items so it again asked the Walkers to provide them. On
September 25, Progressive received copies of the vacation photos and a key.
Upon review of the photos, it appeared as though the photos had been altered.
On October 7, Progressive’s claim file notes that a “possible issue surfaced
with the keys.” Id. at 296. The Walkers’ stated that they had only two keys to
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the vehicle and had both keys in their possession at the time of the theft, but a
Progressive employee discovered the existence of a third key. On that same day,
a Progressive employee left a voicemail message for Ms. Walker asking for a call
back, requesting receipts and further documentation from their vacation, advising
her that the vacation photos did not seem to be original photos, and informing her
that Progressive would like to speak with the other parties who accompanied the
Walkers on vacation. Progressive did not hear back from Ms. Walker. On
October 16, Progressive sent a letter to the Walkers by regular and certified mail
following up on its request for receipts from the Walkers’ vacation.
On November 3, Mr. Walker contacted Progressive by email, stating that no
one had contacted them in over a month about their car. On that same day, Doug
Mallory, a Progressive employee, spoke with Ms. Walker and she denied
receiving the October 16 letter. Mr. Mallory asked about the vacation photos and
Ms. Walker explained that the photos were taken with a blank background and
then they could select a background of their choice. She provided a website so
that Mr. Mallory could review the photos. Mr. Mallory did review the photos and
confirmed the pictures and dates matched what Ms. Walker had submitted to
Progressive.
Progressive’s claim file notes that the origin of the third key remained
unresolved as of November 3. The next day, however, the claim file notes that
Progressive had authorized coverage for the loss and that the documentation had
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shown the Walkers were not in town on the date of loss. On November 17,
Progressive notified the Walkers that it had completed its coverage review, had
resolved the coverage issue, and would be providing coverage for their loss.
On June 12, 2009, the Walkers brought suit in state court asserting that
Progressive acted in bad faith in the handling of their insurance claim.
Progressive removed the action to federal court and then moved for summary
judgment. The district court granted summary judgment in Progressive’s favor.
The Walkers filed a motion for a new trial, which the district court construed as a
motion to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules
of Civil Procedure. The district court denied the motion. The Walkers now
appeal.
II.
To establish a bad-faith claim, the Walkers must show, among other things,
that Progressive’s actions were unreasonable under the circumstances and that
Progressive failed to deal fairly and act in good faith in the handling of the
Walkers’ claim. See Badillo v. Mid Century Ins. Co., 121 P.3d 1080, 1093 (Okla.
2005). When considering a motion for summary judgment on a bad-faith claim
under Oklahoma law, a district court “must first determine, under the facts of the
particular case and as a matter of law, whether insurer’s conduct may be
reasonably perceived as tortious.” Oulds v. Principal Mut. Life Ins. Co., 6 F.3d
1431, 1336-37 (10th Cir. 1993). “Until the facts, when construed most favorably
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against the insurer, have established what might reasonably be perceived as
tortious conduct on the part of the insurer, the legal gate to submission of the
issue to the jury remains closed.” Id. at 1437.
In Progressive’s motion for summary judgment, it argued that the Walkers’
had failed to offer any evidence showing that its actions were unreasonable or
taken in bad faith. In response to Progressive’s motion for summary judgment,
the Walkers explained that “[t]he grounds on which [Progressive] has breached its
duty of good faith and fair dealing . . . concern the focus and method of
[Progressive’s] investigation, not any alleged disagreement concerning the value
of the loss or whether [Progressive] had a right to investigate whether [the
Walkers] were involved in the theft.” Aplt. App., Vol. 2 at 552. They alleged
that Progressive conducted an untimely and improper investigation based on
Progressive’s handling of two issues--the existence of the third key to their car
and the authenticity of the vacation photos. Specifically, the Walkers argued that
Progressive’s actions were unreasonable because “[i]t was knowable to the
insurance company that the pictures were valid and that the third key was created
after the loss.” Id. at 558. The Walkers also complained that Progressive
“allowed the ‘key’ issue to be presented to its expert, Barry Zalma, who used that
to accuse the [Walkers] of fraud in his 2/25/10 expert report.” Id. at 553.
After considering the parties’ submissions, the district court concluded that
the Walkers could not defeat Progressive’s motion for summary judgment because
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they had failed to explain how they were damaged by Progressive’s alleged
unreasonable actions, which is a required element of a bad faith claim, and they
had further failed to show that Progressive’s investigation was unreasonable. As
the court explained, “although Progressive did not immediately call Dixie
Stampede [, where the photos were reportedly taken,] to confirm the legitimacy of
the Branson photographs, as [the Walkers] contend should have occurred,
Progressive determined the validity of the pictures by other means.” Id. at 705.
With respect to the third-key issue, the district court stated that the Walkers’
“reliance on Zalma’s use of the third key in his expert report is misplaced, as this
report was prepared in the course of this litigation and was not part of
Progressive’s investigation, making it inapplicable to [the Walkers’] bad faith
claim.” Id. Finally, the court explained that although it “might have been
preferable for Progressive to determine the origin of the third key prior” to the
deposition of one the repair shop employees who testified that he created the key
himself, “an insurer’s investigation need only be reasonable, not perfect.” Id.
(quotations omitted).
III.
We review de novo the grant of summary judgment, applying the same
standard as the district court. Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243,
1246 (10th Cir. 2010). Summary judgment is appropriate if “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
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of law.” Fed. R. Civ. P. 56(a). We review for abuse of discretion the district
court’s denial of a Rule 59(e) motion. Phelps v. Hamilton, 122 F.3d 1309, 1324
(10th Cir. 1997).
On appeal, the Walkers argue that the district court erred in granting
summary judgment because (1) Progressive did not meet its initial burden of
proof; (2) there were jury questions as to Progressive’s investigation;
(3) Progressive’s post-litigation conduct was a continuation of its improper
investigation; and (4) there was a genuine issue as to the Walkers’ damages. The
Walkers further argue that the district court abused its discretion in denying their
Rule 59(e) motion.
The federal rules require that an appellant support the arguments in its
opening brief “with citations to the authorities and parts of the record on which
the appellant relies,” Fed. R. App. P. 28(a)(9)(A), and “[i]t is well-settled that
arguments inadequately briefed in the opening brief are waived,” United States v.
Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (quotation omitted). Progressive
contends that “[t]he Walkers’ Opening Brief consists almost entirely of
conclusory assertions, unsupported by citations to case law and/or the district
court record.” Aplee. Br. at 17. Progressive further contends that the Walkers
have waived some of their arguments due to inadequate briefing. We agree with
both contentions.
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The Walkers’ brief contains a meager five pages of argument; there are no
citations to the district court record in any of the argument sections and many of
the assertions are conclusory and fail to sufficiently explain how the district court
erred. For example, the Walkers present one paragraph to support their first issue
in which they contend that Progressive did not meet its “initial burden of proof”
and did “not address the undisputed material facts set forth by Plaintiff.” Aplt.
Br. at 8. Other than a passing reference to Fed. R. Civ. P. 56, the Walkers offer
no legal authority for their argument and no citations to the record to demonstrate
how Progressive failed to address their undisputed material facts. Id.Next, the Walkers assert that there are jury questions regarding
Progressive’s investigation, but the bulk of this argument section is a string of
case citations with no explanation of how the cited cases demonstrate error in
light of the facts of their own case. See id. at 9-10. Near the conclusion of this
section, the Walkers do state that “one of the facts not investigated by
PROGRESSIVE was the storage fee.” Id. at 10. But even this statement is not
supported by a citation to the record. See id. The lack of record citation may be
due to the fact that the Walkers did not raise this issue in their response to
summary judgment. The Walkers’ bad-faith claim was based on Progressive’s
handling of the existence of the third key and its position that the vacation photos
were not originals. See Aplt. App., Vol. 2 at 553, 557-558. They did not argue
that any failure by Progressive to investigate a storage fee constituted bad faith.
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See id. at 552-558. Failing to raise an argument with the district court provides
another basis for waiver. See Harsco Corp. v. Renner, 475 F.3d 1179, 1190 (10th
Cir. 2007).
Finally, the Walkers present a mere two sentences in support of their claim
that the district court abused its discretion in denying their Rule 59(e) motion.
They state: “The District Court’s Order granting summary judgment was, as a
matter of law, adverse to the cause of bad faith of the State of Oklahoma. See
McCorkle v. Great Atlantic Ins. Co., 1981 OK 128, 637 P.2d 503 (Reasonableness
is a jury question). As such, there was clear error on the need to prevent manifest
injustice.” Aplt. Br. at 12. The Walkers have not adequately explained or
developed this issue. “Perfunctory complaints that fail to frame and develop an
issue are not sufficient to invoke appellate review.” Femedeer v. Haun, 227 F.3d
1244, 1255 (10th Cir. 2000) (quotation omitted).
For the foregoing reasons, we conclude that the Walkers have waived their
first, second and fifth issues due to inadequate briefing and/or failing to raise
them with the district court in the first instance.
In their third issue, the Walkers complain that Progressive’s post-litigation
conduct was a continuation of its improper investigation and that the district court
failed to properly consider this issue. They argue that it was twenty months
before Progressive determined the origin of the third key and that Progressive’s
expert accused them of felony insurance fraud in his expert report. This argument
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has no relevance to the Walkers’ bad-faith claim. The fact that the origin of the
key was not determined until March 2010 did not impact the timeliness or the
reasonableness of the investigation into the Walkers’ claim. Once Progressive
verified that the Walkers were out of town during the date of loss, it authorized
coverage for the claim, even though the origin of the third key remained
unresolved. We therefore agree with Progressive that “it was irrelevant when
Progressive determined the origin of the third key because Progressive agreed to
pay for the repairs to The Vehicle in November 2008.” Aplee. Br. at 31.
Likewise, we agree with the district court that the expert report prepared for the
litigation in February 2010 is inapplicable to the Walkers’ bad-faith claim, which
was based on Progressive’s investigation from the date the claim was submitted
on July 29, 2008, until coverage was authorized on November 17, 2008.
In their fourth issue, the Walkers contend that there is a genuine issue as to
their damages. We need not reach this issue, however, because we agree with the
district court’s alternate holding that the Walkers failed to show that
Progressive’s handling of the vacation photos or the third-key issue was
unreasonable or rose to the level of bad faith.
IV.
We AFFIRM the district court’s judgment.
Entered for the Court
Monroe G. McKay
Circuit Judge
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