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Achziger v. IDS Property Casualty Insurance Co.

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

November 9, 2017

GENE ACHZIGER, Plaintiff,
v.
IDS PROPERTY CASUALTY INSURANCE COMPANY, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant IDS Property Casualty Insurance Company's (“IDS”) motion for summary judgment (Dkt. 118). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         On April 4, 2014, Plaintiff Gene Achziger (“Achziger”) filed a class action complaint against IDS in Pierce County Superior Court asserting claims against IDS for breach of contract and violations of the Washington Consumer Protection Act (“CPA”), RCW 19.86 et seq. Dkt. 1-1, ¶¶ 1.12, 5.1-5.15.

         On March 18, 2015, Achziger moved for class certification. Dkt. 26. On April 1, 2016, the Court denied Achziger's motion. Dkt. 91. On June 10, 2016, the Ninth Circuit declined discretionary review of the Court's denial. Dkt. 100.

         On October 14, 2016, the Court granted Achziger's motion for partial summary judgment on the issue of coverage. Dkt. 109.

         In January 2017, the parties began to discuss settlement. On January 24, 2017, Achziger's counsel, Scott Nealey, wrote IDS's counsel, Jordan Altura, stating that “Mr. Achziger is willing to resolve his personal breach of contract claim . . . provided it is structured to allow an appeal.” Dkt. 119, Exh. A; Dkt. 122, Declaration of Scott Nealey, ¶ 6. IDS did not respond to this settlement offer, and Mr. Nealey withdrew the offer on February 15, 2017. Dkt. 119, Exh. A.

         On March 22, 2016, Mr. Altura sent a settlement offer to Mr. Nealey. Dkt. 119, Exh. B. The next day, Mr. Nealey sent a counteroffer for a sum certain that would be conditioned on:

1. The settlement amount being confidential, with neither party to discuss, nor mention its amount, unless required to by Court Order, in this or any other proceeding.
2. An agreement that neither party will contest jurisdiction in the Court of Appeal for any appeal.
3. The settlement agreement will state that:
“the settlement payment received is solely in consideration for release of Achziger individual claims, not those related to Achziger class action allegations and claims, in which he retains a personal financial stake, including but not limited to any award enhancement fee were the Court to approve a class settlement or there be a class action judgement, and recovery of costs and attorney's fees from any such Class recovery or judgement, nor does the settlement payment relate to, or release the claims of any absent class member that Achziger sought to represent and is not in derogation of any other claim, defense, or right that either party or any putative class member might have in respect of this litigation, including Plaintiff's class claim” 4. Entry of a final judgement which dismisses Mr. Achziger's individual and his other Class Action claims with prejudice.

Id. Mr. Altura accepted the offer the next day. Specifically, Mr. Altura stated that “IDS accepts plaintiff's [money demand]. The parties will work together over the next few days to formalize the terms of our agreement, which will include the conditions you identify below, subject to some clarification that we discussed today.” Id.

         On March 28, 2017, Mr. Altura sent Mr. Nealey a draft settlement agreement. In relevant part, the document included the following provisions:

Notwithstanding the foregoing, the settlement payment identified in Paragraph 2.1 is solely in consideration for the release of Achziger's individual claims, not those related to Achziger's class action allegations and purported claims, in which he retains a personal financial stake, including but not limited to any incentive award were the District Court to approve a class settlement or there be a class action judgment, and recovery of costs and attorney's fees from any such class recovery or judgment, nor does the settlement payment relate to, or release the claims of any absent class member that Achziger sought to represent and is not in derogation of any other claim, defense, or right that any other person might have in respect of this litigation.
The Parties agree that neither Party will contest jurisdiction in the Ninth Circuit Court of Appeals for any appeal.

Dkt. 121, Exh. C at 3.

         Later that day, Mr. Nealey sent revisions. Specifically, Mr. Nealey added an additional sentence to the provision regarding either party contesting jurisdiction. The proposed sentence was as follows:

To that end, IDS agrees that Achziger's execution of this Release shall not operate as a defense or to otherwise preclude Achziger's appeal of any ruling of the District Court, nor shall it operate as a defense to any claims not released by Achizger [sic] herein in the event of a remand by the appellate court to the District Court.

Id., Exh. D at 4.

         On April 18, 2017, Mr. Altura emailed Achziger's lawyers stating that he was addressing his client's concerns and hoped to have another draft “within the next couple of days.” Id., Exh. G. Mr. Altura also proposed notifying the Court of the “settlement in principle” and requesting the ...


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