George Morello v. Amco Ins. Co.

FILED
NOT FOR PUBLICATION
MAY 26 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE MORELLO, No. 14-16219
Plaintiff - Appellant, D.C. No. 3:11-cv-06623-WHO
v.
MEMORANDUM*
AMCO INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, III, District Judge, Presiding
Argued and Submitted May 13, 2016
San Francisco, California
Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.
George Morello appeals from the district court’s order granting summary
judgment to AMCO Insurance Company on Morello’s claims for breach of the
implied covenant of good faith and fair dealing, intentional infliction of emotional
distress, unfair business practices, and violations of the Unruh Act. Morello also
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
appeals the district court’s order denying Morello’s motion for reconsideration of
its summary judgment order. We have jurisdiction under 28 U.S.C. § 1332, and
we affirm.
Viewing the evidence in the light most favorable to Morello, the record does
not raise a genuine issue of material fact that AMCO breached the implied
covenant of good faith and fair dealing in its handling of Morello’s insurance
claim.
There is no substantial evidence that AMCO engaged in an unreasonable
investigation. AMCO undertook persistent efforts to obtain information from
Morello and others, and employed experts to review the evidence and examine
Morello, so it is inconsequential that in hindsight there may have been other
avenues to explore. See Othman v. Globe Indem. Co., 759 F.2d 1458, 1464–65
(9th Cir. 1985).
It was reasonable for AMCO to rely on Dr. Soong’s expert opinion that
Morello was not entitled to future medical care, particularly since Nurse Powell
and Dr. Strassberg reached a similar conclusion. See Fraley v. Allstate Ins. Co., 81
Cal. App. 4th 1282, 1292–93 (2000). There is no evidence in the record that Dr.
Soong acted in bad faith in reaching his conclusion or in destroying the documents
provided by AMCO after he completed his report. Because there was a genuine
2
dispute as to liability, no reasonable juror could conclude that AMCO
unreasonably withheld benefits due under Morello’s policy. See Pyramid Techs.,
Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 823 (9th Cir. 2014).
To the extent we may consider the expert reports of Thomas Corridan and
Guy Kornblum, see Fed. R. Civ. P. 56(c)(1), (c)(4), their conclusory opinions that
AMCO mishandled Morello’s claim are rebutted by the record, so they cannot
defeat summary judgment. See In re Worlds of Wonder Sec. Litig., 35 F.3d 1407,
1425–26 (9th Cir. 1994). The district court fully considered Morello’s admissible
evidence,1 and the record does not raise a genuine issue of material fact that
AMCO unreasonably delayed in making a settlement offer while engaging in
mediation and arbitration proceedings.
Because the district court did not err in granting summary judgment to
AMCO on bad faith, it likewise did not err in granting summary judgment to
AMCO on Morello’s claims for intentional infliction of emotional distress, unfair
business practices, and violation of the Unruh Act, which were premised on the
same grounds as the bad faith claim.
1
Morello’s evidence of AMCO’s communications during mediation is not
admissible for his bad faith claim. See Foxgate Homeowners’ Ass’n, Inc. v.
Bramalea Cal., Inc., 26 Cal. 4th 1, 14–15 (2001).
3
The district court did not abuse its discretion in denying Morello’s motion
for reconsideration of its summary judgment order. The court committed no “clear
error” in granting summary judgment in favor of AMCO, and our decision in
Pyramid Techs. created no “intervening change in the controlling law” warranting
reconsideration. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th
Cir. 2000).
AFFIRMED.
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