Al-Jelaihawi v. Progressive Insurance Companies ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT TACOMA 9 ALAA AREF AL-JELAIHAWI, CASE NO. 2:20-CV-1855-DWC 10 Plaintiff, ORDER ON CROSS MOTIONS FOR 11 v. SUMMARY JUDGMENT 12 PROGRESSIVE INSURANCE COMPANIES, 13 Defendant. 14 15 Currently before the Court is Plaintiff Alaa Aref Al-Jelaihawi’s Motion for Summary 16 Judgment and Defendant United Financial Casualty Company’s1 Response to Plaintiff’s Motion 17 for Summary Judgment and Cross-Motion for Summary Judgment. Dkt. 29, 30.2 18 I. Background 19 Plaintiff alleges he overpaid on an insurance policy issued to Plaintiff’s trucking 20 company by Defendant. Dkt. 1. Plaintiff states his premiums increased drastically over a span of 21 22 1 Plaintiff’s Complaint names Progressive Insurance Companies as the defendant. See Dkt. 1. “Progressive Insurance Companies is a non-existent corporation and United Financial Casualty Company (UFCC) is the proper defendant.” Dkt. 34 at fn.1. 23 2 Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties 24 have consented to have this matter heard by the undersigned Magistrate Judge. Dkt. 14. 1 three years “with virtually ze[r]o losses to account for.” Id. at 5. Plaintiff contends that, after he 2 began investigating the rate increases, his policy was cancelled and he could not continue his 3 business. Id. While unclear, Plaintiff appears to contend Defendant is liable under theories of 4 breach of contract, negligence, and bad faith. Id. 5 Plaintiff filed a Motion for Summary Judgment on January 6, 2022. Dkt. 29. Defendant 6 filed the Response to Plaintiff’s Motion for Summary Judgment and Cross-Motion for Summary 7 Judgment on January 18, 2022. Dkt. 30, 21 (supporting evidence). On February 11, 2022, 8 Defendant filed a Reply. Dkt. 34. Plaintiff filed an untimely Response to Defendant’s Cross- 9 Motion for Summary Judgment on January 15, 2022. Dkt. 35.3 The parties did not request oral 10 argument and the Court has considered the record and finds this matter can be resolved on the 11 record without oral argument. 12 II. Standard of Review 13 Summary judgment is proper only if the pleadings, discovery, and disclosure materials on 14 file, and any affidavits, show that there is no genuine dispute as to any material fact and that the 15 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is 16 entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient 17 showing on an essential element of a claim in the case on which the nonmoving party has the 18 burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of 19 fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for 20 the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 21 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some 22 23 3 Defendant did not object to Plaintiff’s Response. Therefore, the Court has considered the Response in 24 ruling on the Motions. 1 metaphysical doubt”); see also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a 2 material fact exists if there is sufficient evidence supporting the claimed factual dispute, 3 requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, 4 Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 5 626, 630 (9th Cir. 1987). 6 III. Discussion 7 Both Plaintiff and Defendant seek summary judgment on Plaintiff’s breach of contract 8 claim. Dkt. 29, 30. Defendant also argues it is entitled to summary judgment as to Plaintiff’s 9 negligence claim and any other claim asserted in the Complaint. Dkt. 30. 10 A. Evidence 11 The evidence shows S&A Transportation LLC DBA Dave’s Towing and Transport 12 (“S&A”) was owned by Plaintiff, his brother, and his mother. Dkt. 31-1 at 5 (Plaintiff Depo.). 13 Plaintiff was the individual “mostly . . . handling insurance in [the] company.” Id. at 7. S&A was 14 insured by Defendant from March 24, 2015 through March 24, 2020. See Dkt. 31-2 – Dkt. 31-52. 15 Throughout the five-year period that Defendant insured S&A, S&A made multiple changes to 16 the policy – such as adding and removing vehicles and drivers – resulting in changes to the 17 amount of the policy premium. See Dkt. 31.4 Defendant also sent several notices of cancellations 18 to S&A because S&A failed to submit timely payments. Id.5 After S&A received each 19 cancellation notification, S&A paid the premium amount due and the policy was reinstated 20 without a lapse in coverage. Id. 21 22 4 Dkt. 31-2, 31-3, 31-4, 31-6, 31-7, 31-9, 31-11, 31-12, 31-13, 31-14, 31-15, 31-17, 31-18, 31-19, 31-21, 31-22, 31-23, 31-24, 31-26, 31-27, 31-28, 31-30, 31-31, 31-32, 31-33, 31-34, 31-35, 31-36, 31-37, 31-40, 31-42, 31- 23 43, 31-44, 31-46, 31-47, 31-49, 31-50. 24 5 Dkt. 31-5, 31-8, 31-10, 31-16, 31-20, 31-38, 31-39, 31-45, 31-48. 1 On January 30, 2020, Defendant mailed S&A a Notice of Cancellation, Nonrenewal or 2 Declination of Insurance (“Notice of Cancellation”) stating that Defendant would not renew 3 S&A’s insurance policy. Dkt. 31-52. The Notice of Cancellation stated S&A did not meet 4 Defendant’s acceptability criteria because S&A’s current drivers list was not received, was 5 incomplete, or was invalid. Id. S&A’s insurance policy expired on March 24, 2020. 6 B. Breach of Contract 7 Plaintiff appears to assert a claim for breach of contract. See Dkt. 1. To establish breach 8 of contract claim, Plaintiff must allege: (1) the existence of a valid contract; (2) breach of that 9 contract; and (3) resulting damages. See Storti v. Univ. of Wash., 181 Wash.2d 28, 35 (2014). 10 Valid Contract. Plaintiff states Defendant breached a contract between Plaintiff and 11 Defendant that required Defendant to act in good faith and treat Plaintiff fairly. Dkt. 31-1 at 25 12 (Plaintiff Depo.). S&A, Plaintiff’s company, was insured by Defendant from March 2015 13 through March 2020. Plaintiff, however, does not contend a provision of the insurance policy is 14 at issue. See Dkt. 1. In fact, Plaintiff testified there is no contractual document on which he is 15 basing his claim. Dkt. 31-1 at 25 (Plaintiff Depo.). Based on the evidence before the Court, the 16 Court cannot identify a valid contract between Plaintiff and Defendant that gives rise to this 17 litigation. 18 Breach of Contract. As there is no valid contract, there is no evidence Defendant 19 breached a contract. However, assuming Plaintiff is asserting that Defendant failed to perform 20 under the insurance policy, the claim fails. A breach of contract claim must indicate which 21 provision of the contract was breached. Elliott Bay Seafoods, Inc. v. Port of Seattle, 124 Wn. 22 App. 5, 12 (2004). As stated above, Plaintiff has not identified any provision of a contractual 23 agreement between Plaintiff and Defendant that Defendant breached. Moreover, the evidence 24 1 shows Defendant insured Plaintiff’s business from March 2015 through March 2020. See Dkt. 2 31. Throughout the period of coverage, S&A made multiple changes to the policy. For example, 3 S&A added and removed drivers and added and removed vehicles from the policy. As a result of 4 the policy changes, S&A’s policy premium amounts fluctuated. In January of 2020, Defendant 5 provided the Notice of Cancellation to S&A informing S&A the insurance policy would not be 6 renewed. The evidence fails to show Defendant breached any contract by adjusting S&A’s 7 insurance premium amounts when Plaintiff made changes to the policy or by declining to renew 8 the insurance policy. Therefore, there is no evidence Defendant breached any contract between 9 Plaintiff and Defendant. 10 Damages. The evidence fails to show a valid contract between Plaintiff and Defendant 11 was breached by Defendant. Therefore, the Court declines to determine if there is sufficient 12 evidence showing damages to survive summary judgment. Regardless, the Court notes that 13 Plaintiff alleged he was forced to close his business because he lost insurance. Dkt. 1. However, 14 Plaintiff testified that his assessment of his damages is arbitrary. See Dkt. 31-1 at 26 (Plaintiff 15 Depo.). Thus, Plaintiff has not submitted sufficient evidence to show Plaintiff was actually 16 damaged as a result of any alleged breach of contract. 17 Conclusion. The evidence fails to show there was a valid contract between Plaintiff and 18 Defendant that was breached by Defendant. Therefore, Defendant is entitled to summary 19 judgment on the breach of contract claim. 20 C. Negligence 21 Plaintiff also alleges Defendant was negligent based on Plaintiff’s interactions with 22 Defendant’s employees at one of Defendant’s call centers. See Dkt. 31-1 at 23 (Plaintiff Depo.). 23 A party claiming negligence must prove (1) duty, (2) breach, (3) causation, and (4) injury. 24 1 Wellman & Zuck, Inc. v. Hartford Fire Ins. Co., 170 Wash. App. 666, 680 (2012). Plaintiff has 2 not alleged and the record does not reflect Defendant breached a duty to Plaintiff based on 3 Plaintiff’s interactions with a call center. In fact, there is no explanation of what duty Defendant 4 owed Plaintiff. Furthermore, there are no allegations or evidence showing Plaintiff suffered an 5 injury as a result of his interactions with Defendant’s employees at a call center. Therefore, there 6 is no evidence Defendant acted negligently. Accordingly, Defendant is entitled to summary 7 judgment as to Plaintiff’s negligence claim. See Dombrosky v. Farmers Ins. Co. of Washington, 8 84 Wash. App. 245, 260–61, (1996), as amended (Feb. 7, 1997) (finding the plaintiff failed to 9 provide specific evidence to establish the elements of negligence and stating “[m]ere 10 unsupported assertions will not defeat a summary judgment motion”). 11 D. Bad Faith 12 The Complaint also appears to allege Defendant is liable under theories of unethical 13 policy practice, twisting, misrepresentation, and operation in bad faith. Dkt. 1 at 5. As Plaintiff 14 has not provided any explanation as to these claims, the Court interprets the claims to be alleging 15 that Defendant acted in bad faith. 16 An insurer has a duty of good faith to its policyholder and violation of that duty may give 17 rise to a tort action for bad faith. Truck Ins. Exch. v. Vanport Homes, Inc., 147 Wash.2d 751, 765 18 (2002). Claims by insureds against their insurers for bad faith are analyzed applying the same 19 principles as any other tort: duty, breach of that duty, and damages proximately caused by any 20 breach of duty. See Safeco Ins. Co. v. Butler, 118 Wash.2d 383, 388 (1992). To succeed on a bad 21 faith claim, the policyholder must show the insurer’s breach of the insurance contract was 22 unreasonable, frivolous, or unfounded. Overton v. Consol. Ins. Co., 145 Wash.2d 417, 433 23 (2002). Here, as discussed above, there is no evidence Defendant breached the insurance contract 24 1 or breached any duty owed to Plaintiff. As there is no evidence (or allegations) showing 2 Defendant breached a duty owed to Plaintiff, Defendant is entitled to summary judgment on 3 Plaintiff’s bad faith claim. 4 IV. Conclusion 5 Based on the record before the Court, the evidence fails to create a genuine issue of 6 material fact showing Defendant is liable under the theories of breach of contract, negligence, or 7 bad faith. Therefore, Plaintiff’s Motion for Summary Judgment (Dkt. 29) is denied, Defendant’s 8 Cross-Motion for Summary Judgment (Dkt. 30) is granted, and this case is closed. 9 Dated this 22nd day of February, 2022. 10 A 11 David W. Christel United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24