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Trofimovich v. Progressive Direct Insurance Co.

United States District Court, W.D. Washington, Seattle

August 8, 2017

DANIIL TROFIMOVICH and BRITTANY TROFIMOVICH, husband and wife, and their marital community, Plaintiffs,
v.
PROGRESSIVE DIRECT INSURANCE COMPANY, a foreign insurance company, Defendant.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          John C. Coughenour UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the cross-motions for summary judgment by Daniil Trofimovich and Brittany Trofimovich (Dkt. No. 19) and Defendant Progressive Direct Insurance Company (Dkt. No. 15). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and GRANTS Defendant's motion (Dkt. No. 15) and DENIES Plaintiffs' motion (Dkt. No. 19) for the reasons explained herein.

         I. BACKGROUND

         Plaintiff Daniil Trofimovich[1] is a Lyft driver. (Dkt. No. 20-1 at 4.) At the time relevant to these motions, Trofimovich had “Platinum” status with Lyft, meaning he was entitled to certain benefits, including roadside assistance. (Id. at 188, 190.) Trofimovich also had automobile insurance coverage from Defendant Progressive Direct Insurance Company. (Id. at 193.) His plan excluded damages arising out of the use of the vehicle while “carry[ing] persons or property for compensation or a fee.” (Id. at 215.)

         On the morning of June 17, 2016, Trofimovich received a fare request from non-party Taelor Dinson. (Id. at 8.) During the ride, Dinson told Trofimovich that she was in a tough financial situation and was worried about how to get home. (Id.) Trofimovich testified that he offered to drive her home for free and gave her his cell phone number. (Id.) That afternoon, Dinson texted Trofimovich and asked for a ride home. (Id. at 13.) According to Trofimovich, he logged off Lyft at that time, around 2:18 p.m. (Id.) Trofimovich picked Dinson up and, about five or ten minutes into the trip, collided with another car at an intersection. (Id. at 129-30.)

         About an hour after the accident, Trofimovich called Progressive to report it and make a claim. (Id. at 110.) He told the customer service representative that the police report said the accident occurred at 2:43 p.m. (Id. at 111.) He also stated, “I was working and I was driving for, uh, what's it called, Lift [sic], ” and he responded in the affirmative when asked if he was “working at the time.” (Id. at 113.) When asked if he had a passenger, he responded, “I did have a passenger.” (Id.) Trofimovich also turned down the representative's offer to call him a tow, saying, “I'm trying to get Lift [sic] to do it ‘cuz they're supposed to pay for it, like, or pay for a big chunk of it.” (Id. at 124.) The representative's initial notes read: “IMMEDIATE CONCERNS: INSURED WAS DRIVING FOR LYFT AT THE TIME OF THE ACCIDENT. [GUEST PASSENGER] WAS A CUSTOMER.” (Id. at 232.)

         The next day, when speaking with Progressive claims adjuster Amber Sandbergen, Trofimovich stated that Dinson was not a paying customer, but a passenger whom he had transported for free. (Dkt. No. 20-1 at 129.) Trofimovich said, “We had used [Lyft] earlier in the day . . . because I was working . . . and then I was just giving her a ride back home afterwards. . . . [H]er mom's got cancer or something.” (Id.) Trofimovich further stated that he was “trying to do a favor.” (Id.) He told Sandbergen that he clocked off an hour before he drove Dinson home. (Id.) According to Trofimovich, he also provided Progressive a screenshot of his ride history that day; however, the evidence he submitted to the Court shows only a portion of the day's rides and contains no information about the afternoon hours. (See Id. at 270.)

         On June 30, 2016, Progressive sent a letter to Trofimovich advising him that “there is no coverage for this loss because [he was] driving for Lyft at the time of the loss and coverage for this is excluded under [his] policy.” (Dkt. No. 17-4 at 2.)

         On July 20, 2016, Trofimovich sent Progressive an Insurance Fair Conduct Act (IFCA) notice, indicating his intent to sue Progressive. (Dkt. No. 17-5 at 2.) Progressive contacted Trofimovich's counsel regarding the basis for the notice. (See Dkt. No. 17-6 at 3.) On July 27, 2016, Counsel responded that Trofimovich had no fare in his car at the time of the accident and that, because Progressive ignored the supporting evidence he offered, he would bring claims under IFCA, the Washington Consumer Protection Act (WCPA), and common law. (Id. at 3-4.)

         On July 29, 2016, Progressive extended coverage for Trofimovich's loss. (Dkt. No. 17 at 3.) On September 30, 2016, Progressive issued Trofimovich payments for the full amount of the damage to his vehicle. (See Dkt. No. 17-7 at 2-3.)

         Meanwhile, on August 26, 2016, Trofimovich and his wife, Brittany Trofimovich, filed suit against Progressive, alleging that it “refused and continues to refuse to pay for the full damages it caused Plaintiffs due to its wrongful denial.” (Dkt. No. 1-2 at 5.) Plaintiffs alleged breach of contract, common law bad faith, WCPA violations, and IFCA violations. (Id. at 6-8.)

         Progressive now moves for summary judgment dismissal of all claims, arguing that it accepted coverage and paid for all damage to Trofimovich's vehicle and that its previous denial of coverage was reasonable based on Trofimovich's initial statements. (Dkt. No. 15 at 2.)

         Plaintiffs bring a cross-motion for summary judgment, arguing that they are entitled to consequential damages, including lost wages and attorney fees, arising out of Progressive's initial denial of coverage. (Dkt. No. 19 at 3.)

         II. ...


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