United States District Court, W.D. Washington, Tacoma
PATRICIA POTTER and WILLIAM H. POTTER, Plaintiffs,
AMERICAN FAMILY INSURANCE, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Defendant American Family
Insurance's (“American Family”) motion to
dismiss extra contractual claims (Dkt. 48). The Court has
considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby denies the motion for the reasons stated herein.
26, 2016, Plaintiffs Patricia and William Potter
(“Potters”) filed a complaint against American
Family asserting ten causes of action including bad faith
insurance practices and violations of Washington's
Insurance Fair Conduct Act (“IFCA”) and Consumer
Protection Act (“CPA”). Dkt. 1.
April 20, 2017, American Family filed a motion to dismiss
extra contractual claims. Dkt. 41. On May 8, 2017, the
Potters responded. Dkt. 46. On May 12, 2017, American Family
replied. Dkt. 48. On May 15, 2017, the Potters filed a
surreply. Dkt. 50.
1, 2014, Mrs. Potter was involved in an automobile accident.
On June 4, 2015, the Potters' attorney submitted a claim
to American Family. On August 31, 2015, American Family
offered $46, 701.19 to settle the claim. The Potters declined
the offer and requested arbitration. On February 29, 2016,
the arbitrator awarded the Potters $130, 259.41. This action
Motion to Strike
In one of many inaccurate statements made to the Court,
American Family asserts that “[i]n response to American
Family's motion, the Potters rely solely on the testimony
of Robert Dietz.” Dkt. 48 at 9. Contrary to American
Family's assertion, the Potters submitted over 80 pages
of exhibits only some of which was Mr. Dietz's expert
report. See Dkt. 47-1. Regardless, American Family
moves to strike Mr. Dietz's report in its entirety
because it includes improper conclusions of law. Dkt. 48 at
10-11. While American Family is correct that an expert may
not provide legal opinions, an expert may opine on the
subject of whether an insurance company's actions fell
below industry standards even if those standards are state
regulations. See Hangarter v. Provident Life & Acc.
Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004)
(“[the expert's] references to California statutory
provisions-none of which were directly at issue in the
case-were ancillary to the ultimate issue of bad
faith.”). Therefore, the Court denies American
Family's motion to strike Mr. Dietz's report.
Motion to Dismiss
initial matter on this motion, American Family fails to
provide any standard of review to assist in the Court's
evaluation of its motion. At this point of the proceeding, it
is unusual to file a motion to dismiss because most
dispositive motions are for judgment on the pleadings or for
summary judgment. Because American Family submitted evidence
in support of its motion and the Potters submitted evidence
in support of their response, the Court will convert the
motion to dismiss into a motion for summary judgment.
judgment is proper only if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party is entitled to judgment
as a matter of law when the nonmoving party fails to make a
sufficient showing on an essential element of a claim in the
case on which the nonmoving party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
There is no genuine issue of fact for trial where the record,
taken as a whole, could not lead a rational trier of fact to
find for the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(nonmoving party must present specific, significant probative
evidence, not simply “some metaphysical doubt”).
See also Fed. R. Civ. P. 56(e). Conversely, a
genuine dispute over a material fact exists if there is
sufficient evidence ...