Friend v. American Family Insurance ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 HORACE G. FRIEND, CASE NO. 21-5306 RJB 11 Plaintiff, ORDER ON MOTION FOR 12 v. SUMMARY JUDGMENT 13 AMERICAN FAMILY INSURANCE, 14 Defendant. 15 16 This matter comes before the Court on the Defendant’s Motion for Summary Judgment. 17 Dkt. 12. The Court has considered the pleadings filed in support of and in opposition to the 18 motion and the file herein. 19 I. RELEVANT FACTS AND PROCEDURAL HISTORY 20 A. FACTS 21 On April 27, 2021, the Plaintiff, pro se, filed this “Bad Faith” case against his insurance 22 company, Defendant American Family Insurance (“American Family”), in connection with an 23 accident he had while in California in December of 2017. Dkt. 1. In his Complaint, the Plaintiff 24 alleges that his car was hit by a car driven by Angel Martinez, who was insured by CSAA 1 Insurance Group (“CSAA”). Id. The Plaintiff indicates that he settled his claims with Mr. 2 Martinez and CSAA. Id. At the time of the accident, the Plaintiff was insured by Defendant but 3 he rejected all first party coverage, both personal injury protection and uninsured motorist 4 protection. Dkt. 13-1, at 2-160. 5 This case is one of several cases that the Plaintiff, pro se, has brought against American 6 Family, Mr. Martinez and CSAA in connection with the accident. See e.g. Friend v. Martinez, 7 et. al., United States District Court for the Central District of California case number 19- 8 6555TJH (First Amended Complaint filed in the record here at Dkt. 13-1, at 162-165); Friend v. 9 Martinez, et. al., Pierce County, Washington Superior Court case 19-2-12065-2 (Complaint filed 10 in the record here at Dkt. 13-1, at 178-182); Friend v. Martinez, et. al., Pierce County, 11 Washington Superior Court case 20-2-04527-1 (Complaint filed in the record here at Dkt. 13-2, 12 at 22-25). On April 22, 2021, the Pierce County Superior Court granted Defendant American 13 Family’s Motion for Summary Judgment. Friend v. Martinez, et. al., Pierce County, Washington 14 Superior Court case 20-2-04527-1 (Dkt. 13-2, at 27-28). In that case, the Plaintiff was claiming 15 the American Family breached its duty to help him recover from Mr. Martinez and CSAA. Dkt. 16 13-2 at 33-34; 13-2, at 78-79. He asserted that they did not fulfill their “obligation to help him.” 17 Id. That case was set to begin trial a few days after the motion for summary judgment was 18 granted. Dkt. 13. 19 B. PENDING MOTION 20 In the pending motion, American Family moves for dismissal of the case, arguing that res 21 judicata bars the Plaintiff’s claims and to have the Plaintiff declared a vexatious litigant. Dkt. 22 12. The Plaintiff responded (Dkt. 15) and American Family filed a reply (Dkt. 16). The motion 23 is ready for decision. 24 1 II. DISCUSSION 2 A. STATE SUBSTANTIVE AND FEDERAL PROCEDURAL LAW APPLIES 3 The Plaintiff’s claim for bad faith is a state law claim. Dkt. 1. The Court is asserted to have 4 jurisdiction over the case due to the diversity of the parties’ citizenship under 28 U.S.C. § 1332. 5 Under the rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), federal courts sitting in 6 diversity jurisdiction, as here, apply state substantive law and federal procedural law. Gasperini 7 v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996). In applying Washington law, the Court 8 must apply the law as it believes the Washington Supreme Court would apply it. Gravquick A/S 9 v. Trimble Navigation Intern. Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003). 10 B. SUMMARY JUDGMENT STANDARD 11 Summary judgment is proper only if the pleadings, the discovery and disclosure materials 12 on file, and any affidavits show that there is no genuine issue as to any material fact and that the 13 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (a). The moving party is 14 entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient 15 showing on an essential element of a claim in the case on which the nonmoving party has the 16 burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue 17 of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find 18 for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 19 (1986)(nonmoving party must present specific, significant probative evidence, not simply “some 20 metaphysical doubt.”). Conversely, a genuine dispute over a material fact exists if there is 21 sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve 22 the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); 23 24 1 T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 2 1987). 3 The determination of the existence of a material fact is often a close question. The court 4 must consider the substantive evidentiary burden that the nonmoving party must meet at trial – 5 e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. 6 Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor 7 of the nonmoving party only when the facts specifically attested by that party contradict facts 8 specifically attested by the moving party. The nonmoving party may not merely state that it will 9 discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial 10 to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). 11 Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not 12 be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990). 13 C. RES JUDICATA 14 When the prior lawsuit is litigated in state court and results in a state court judgment, as here, 15 federal courts apply the res judicata law of the state in which the judgment was rendered. See 16 Valley Wood Preserving v. Paul, 785 F.2d 751, 753 (9th Cir. 1986). 17 The prior lawsuit to which American Family points is Friend v. Martinez, et. al., Pierce 18 County, Washington Superior Court case 20-2-04527-1. In Washington, “[r]es judicata, or claim 19 preclusion, bars litigation of claims that were brought or might have been brought in a prior 20 proceeding.” Weaver v. City of Everett, 194 Wn.2d 464, 473 (2019). “A party seeking to apply 21 res judicata must establish four elements as between a prior action and a subsequent challenged 22 action: concurrence of identity (1) of subject-matter; (2) of cause of action; (3) of persons and 23 parties; and (4) in the quality of the persons for or against whom the claim is made.” Id., at 480. 24 1 American Family’s motion for summary judgment based on res judicata (Dkt. 12) should 2 be granted. As to the first element, it has established that the subject matter of this case and of 3 Friend v. Martinez, et. al., Pierce County, Washington Superior Court case 20-2-04527-1 are the 4 same: they both deal with the car accident and American Family’s subsequent treatment of the 5 Plaintiff. In consideration of the second element, although the Plaintiff labels the claim in this 6 case a “bad faith claim,” his prior claim against American Family was in essence a bad faith 7 claim – that American Family acted violated its duty when it failed to help him with his claims 8 against Mr. Martinez and CSAA, failed to take an interest in his medical bills, and failed to give 9 him an accident report. These are the same claims he asserts here. American Family has shown 10 that the third and fourth elements of res judicata are met - both it and the Plaintiff were parties in 11 Friend v. Martinez, et. al., Pierce County, Washington Superior Court case 20-2-04527-1 and are 12 identically situated in both cases (the Plaintiff is/was the plaintiff in both lawsuits and American 13 Family is/was a defendant). See Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392 (1967). 14 Lastly, application of res judicata here would not work an injustice. The Plaintiff has had a 15 full opportunity to litigate his claim against American Family. The Pierce County Court 16 dismissed it on summary judgment. This Court is obligated to give full faith and credit to that 17 judgment. See U.S. Const. Art. IV, Sec. 1. This case should be dismissed because the Plaintiff’s 18 claim is barred by res judicata. 19 D. VEXATIOUS LITIGANT 20 American Family also moves to have the Plaintiff declared a vexatious litigant. The All 21 Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power to issue all writs 22 necessary or appropriate in aid of the court’s jurisdiction and agreeable to the usages and 23 principles of law. Federal courts can regulate the activities of abusive litigants by imposing 24 1 carefully tailored restrictions under appropriate circumstances. Ringgold-Lockhard v. County of 2 Los Angeles, 761 F.3d 1047, 1061 (9th Cir. 2014), citing De Long v. Hennessey, 912 F.2d 1144, 3 1147 (9th Cir. 1990). 4 American Family’s motion to have the Plaintiff declared a vexatious litigant (Dkt. 12) 5 should be denied without prejudice. While the Plaintiff has engaged in harassing and frivolous 6 behavior, a bar order is not yet appropriate. The Plaintiff should be on notice that if he choses to 7 continue harassing behavior or filing frivolous motions or cases, he could be subject to an order 8 restricting his access to the courts. 9 III. ORDER 10 Therefore, it is hereby ORDERED that: 11  Defendant American Family’s Motion for Summary Judgment (Dkt. 12) IS 12 GRANTED 13  Plaintiff’s claim IS DISMISSED; 14  Defendant American Family’s motion to have the Plaintiff declared a vexatious 15 litigant (Dkt. 12) IS DENIED WITHOUT PREJUDICE; and 16  This case IS CLOSED. 17 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 18 to any party appearing pro se at said party’s last known address. 19 Dated this 29th day of June, 2021. A 20 21 ROBERT J. BRYAN 22 United States District Judge 23 24