United States District Court, W.D. Washington, Seattle
PATRICIA S. HAWTHORNE, individually and as assignee of Oklahoma Court Services, Inc., Plaintiff,
MID-CONTINENT CASUALTY COMPANY, OKLAHOMA SURETY COMPANY, an Oklahoma Insurance Company, Defendant.
ORDER DENYING IN PART AND GRANTING IN PART
CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT, AND GRANTING
PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT
Robert S. Lasnik United States District Judge
matter comes before the Court on defendant Oklahoma Surety
Company's “Motion for Partial Summary Judgment on
Choice of Law and Claims Brought in Plaintiff's
Individual Capacity, ” Dkt. # 54, on plaintiff Patricia
S. Hawthorne's “Renewed Motion for Partial Summary
Judgment Re: The Duty to Defend, ” Dkt. # 58, and on
plaintiff's “Motion for Leave to File Second
Amended Complaint, ” Dkt. # 44. Having considered the
parties' briefing and the remainder of the record, the
Court denies in part and grants in part the parties'
cross-motions for partial summary judgment, and grants
plaintiff's motion for leave to amend.
November 2016, acting in her individual capacity and as
assignee of various insurance claims by Oklahoma Court
Services, Inc. (“OCS”), plaintiff filed this
action in King County Superior Court against OCS's
insurer, Oklahoma Surety Company (“Oklahoma
Surety”), for bad faith, violation of Washington's
Consumer Protection Act, and breach of the contractual duties
to defend, settle, and indemnify. Dkt. # 1-1. On December 21,
2016, Oklahoma Surety removed this case to federal court,
Dkt. # 1, and shortly thereafter moved to dismiss the case
for lack of personal jurisdiction, Dkt. # 9. The Court denied
that motion on April 4, 2017. Dkt. # 39.
April 20, 2017, plaintiff moved for leave to file a second
amended complaint, specifically to add a claim under
Washington's Insurance Fair Conduct Act (IFCA) because
the required 20 days had elapsed since plaintiff submitted
notices to the Washington Insurance Commissioner and to
Oklahoma Surety and Mid-Continent Casualty Company, as
required by RCW 48.030.015(8)(a). Dkt. # 44. Oklahoma Surety
opposed plaintiff's motion, arguing that Oklahoma law
applies in this case rather than Washington law, but that an
IFCA claim would be futile in any event. Dkt. # 52.
4, 2017, just three days after filing its response to
plaintiff's motion for leave to amend, Oklahoma Surety
moved for partial summary judgment on the question of choice
of law. Dkt. # 54. As in its opposition to plaintiff's
motion for leave to amend, Oklahoma Surety argues that
Oklahoma rather than Washington law applies to all of
plaintiff's claims. Oklahoma Surety also asks the Court
to dismiss the claims that plaintiff has brought
“individually, ” as opposed to as assignee of
OCS. A week later, plaintiff renewed her motion for partial
summary judgment, which seeks resolution both of the
choice-of-law issue and of the merits question whether
Oklahoma Surety breached its duties under the applicable law.
Dkt. # 58.
the choice-of-law issue bears on plaintiff's motion for
leave to add a Washington IFCA claim, this order addresses
the parties' cross-motions for partial summary judgment
first, before turning to plaintiff's motion for leave to
file a second amended complaint.
The Parties' Cross-Motions for Partial Summary
Oklahoma Surety and plaintiff seek partial summary judgment
on the question whether Washington or Oklahoma law applies in
this case. Oklahoma Surety also seeks dismissal of
plaintiff's claims to the extent she brings them in her
individual capacity rather than as assignee of OCS's
claims arising from its insurance contract with Oklahoma
judgment is appropriate if, viewing the evidence in the light
most favorable to the nonmoving party, “the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); L.A. Printex Indus., Inc.
v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012).
The moving party “bears the initial responsibility of
informing the district court of the basis for its
motion.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has satisfied its
burden, it is entitled to summary judgment if the non-moving
party fails to designate “specific facts showing that
there is a genuine issue for trial.” Id.
“The mere existence of a scintilla of evidence in
support of the non-moving party's position is not
sufficient”; the opposing party must present probative
evidence in support of its claim or defense. Arpin v.
Santa Clara Valley Transp. Agency, 261 F.3d 912, 919
(9th Cir. 2001); Intel Corp. v. Hartford Accident &
Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
“An issue is ‘genuine' only if there is a
sufficient evidentiary basis on which a reasonable fact
finder could find for the nonmoving party.” In re
Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (internal
Plaintiff's Claims in Her Individual Capacity
Surety asks the Court to dismiss plaintiff's claims to
the extent she brings them in her individual capacity rather
than as assignee of OCS. The Court agrees that because
plaintiff is not insured by Oklahoma Surety, she lacks
standing to bring individual claims for breach of the
contractual duties to defend, settle, and indemnify. And as a
third party, plaintiff also lacks standing to bring a bad
faith claim in her individual capacity against Oklahoma
Surety for its failure to defend OCS against
plaintiff's lawsuit. See Tank v. State Farm
& Cas. Co., 105 Wn.2d 381, 391-94 (1986) (“We
hold that third party claimants may not sue an insurance
company directly for alleged breach of duty of good faith
under a liability policy.”). Neither party addresses
plaintiff's standing to bring a claim under
Washington's Consumer Protection Act, RCW 19.86.010
et seq., but plaintiff does not appear to dispute
that she lacks standing to bring any of her claims in her
individual capacity. Dkt. # 69 at 36. Accordingly, she may
litigate this suit only as assignee of OCS's claims
against Oklahoma Surety. Oklahoma Surety's motion for
partial summary judgment on this point is GRANTED.