Shivani Thakkar v. Honeywell International ( 2018 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHIVANI THAKKAR, No. 17-15340
Plaintiff-Appellant, D.C. No. 2:16-cv-01446-JJT
v.
MEMORANDUM*
HONEYWELL INTERNATIONAL, INC.,
a foreign corporation authorized to do
business and doing business in Arizona
and LIFE INSURANCE COMPANY OF
NORTH AMERICA, a foreign insurance
company and/or third party administrator
authorized to do business and doing
business in Arizona,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Argued and Submitted June 12, 2018
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SILER,** PAEZ, and IKUTA, Circuit Judges.
Shivani Thakkar appeals the district court’s order granting the motion to
dismiss her claim for tortious breach of the covenant of good faith and fair dealing
against the Life Insurance Company of North America. We have jurisdiction
under 28 U.S.C. § 1291.
Even assuming that the salary continuation plan provided by Thakkar’s
employer is a contract or part of a contract, the tort of bad faith under Arizona law
requires a “special relationship” between the parties, as well as a contract. Burkons
v. Ticor Title Ins. Co., 168 Ariz. 345, 355 (1991). In general, Arizona law does not
recognize a special relationship between an employer and employee. Wagenseller
v. Scottsdale Mem’l Hosp., 147 Ariz. 370, 385 (1985), superseded by statute on
other grounds, Ariz. Rev. Stat. § 12-341.01, as recognized in Powell v. Washburn,
211 Ariz. 553, 560 (2006); Nelson v. Phx. Resort Corp., 181 Ariz. 188, 197–98
(Ct. App. 1994). Although Arizona law recognizes a special relationship between
an insurance company and an insured, Rawlings v. Apodaca, 151 Ariz. 149, 163
(1986), Arizona has not designated a salary continuation plan such as the one in
this case as either an insurance contract or as workers’ compensation insurance.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2
This salary continuation plan has some similarities to workers’ compensation
insurance funded by an employer, see Mendoza v. McDonald’s Corp., 222 Ariz.
139, 149 (Ct. App. 2009), but Arizona courts “have been reluctant . . . to extend the
tort action beyond the insurance setting,” Wagenseller, 147 Ariz. at 385, and we
see no basis for inferring that Arizona courts would extend the tort to an
employer’s salary continuation plan. Given the lack of a special relationship
between Thakkar and her employer, the district court did not err in dismissing her
tort claim.
AFFIRMED.
3