United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
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.
PROCEDURAL AND FACTUAL BACKGROUND
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.
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.
October 14, 2016, the Court granted Achziger's motion for
partial summary judgment on the issue of coverage. Dkt. 109.
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.
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
March 28, 2017, Mr. Altura sent Mr. Nealey a draft settlement
agreement. In relevant part, the document included the
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
Dkt. 121, Exh. C at 3.
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.
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 ...