United States District Court, E.D. Washington
ORDER DENYING PLAINTIFF'S MOTION FOR
ROSANNA MALOUF PETERSON United States District Judge
THE COURT, without oral argument, is Plaintiff Diane
Young's Motion for Reconsideration and Certification to
the Washington State Supreme Court, ECF No. 113. Having
considered the parties' submissions regarding the motion,
ECF Nos. 113, 114, and 116, the remaining record, and the
relevant law, the Court is fully informed.
Court incorporates by reference the detailed summary of the
factual and procedural background of this case set forth in
the Court's September 30, 2019 Order Denying
Cross-Motions for Partial Summary Judgment, Granting
Defendant's Motion to Dismiss Class Allegations, and
Denying as Moot Plaintiff's Motion for Pre-Certification
Discovery, ECF No. 111 (“September 30 Order”). In
that Order, the Court found that Plaintiff had not
established that merely withholding payment of Young's
medical bills pending an independent medical examination
(“IME”), and having claims handling policies that
authorized adjusters to do so, violated Washington
Administrative Code (“WAC”) § 284-30-395 and
constituted bad faith as a matter of law. Rather, the Court
found that the caselaw upon which Plaintiff relied supports
that the determination of whether suspending personal injury
protection (“PIP”) benefits was reasonable and in
good faith is fact dependent. ECF No. 111 at 12.
the Court found that neither Plaintiff nor Defendant was
entitled to partial summary judgment because questions of
material fact persist regarding whether Defendant's
investigation of Plaintiff's claim was reasonable and
whether Defendant unreasonably delayed requesting an IME or
took other actions amounting to bad faith. Id. at
14. As a result, Plaintiff's class allegations were
deficient because she had not alleged with specificity how
her claims were representative of the putative class. In
addition, Plaintiff's theory of predominance was based on
the unsupported assertion that withholding payment of PIP
benefits pending an IME was a per se violation of Washington
insurance law. Id. at 17.
now seeks to certify the following questions to the
Washington State Supreme Court:
1. Does an insurer's “suspension” of Personal
Injury Protection (“PIP”) benefits constitute a
“denial, limitation, or termination” of medical
and hospital services under WAC 284-30- 395?
2. When a PIP insurer desires to deny, limit, or terminate
PIP benefits by consulting a medical or health care
professional to dispute the reasonableness, necessity, or
relatedness of medical and hospital services, does WAC
284-30-395(2) require the PIP insurer continue paying
properly submitted claims until the date that the PIP insurer
provides the insured with a notice that states, in clear and
simple language, the true and actual reasons for nonpayment
as provided to the insurer by the medical or health care
professional with whom the insurer consulted?
3. Does a PIP insurer breach its duty of good faith as a
matter of law when it suspends payment of PIP benefits
pending its future consultation with a medical or health care
ECF No. 113 at 2.
is appropriate if the district court (1) is presented with
newly discovered evidence, (2) committed clear error or the
initial decision was manifestly unjust, or (3) if there is an
intervening change in controlling law.” Sch. Dist.
No. 1J, Multnomah Cnty., Or. V. ACandS Inc., 5
F.3d 1255, 1263 (9th Cir. 1993); see also Marlyn
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
F.3d 873, 880 (9th Cir. 2009). Legitimate purposes for a
motion for reconsideration do not include raising evidence or
argument for the first time that “could reasonably have
been raised earlier in the litigation.”
Marlyn, 571 F.3d at 880. A motion for
reconsideration “should not be granted, absent highly
unusual circumstances.” McDowell v. Calderon,
197 F.3d 1253, 1255 (9th Cir. 1999) (internal quotation
is appropriate in Washington when, “in the opinion of
any federal court before whom a proceeding is pending, it is
necessary to ascertain the local law of [Washington] in order
to dispose of such proceeding and the local law has not been
clearly determined.”” Revised Code of Washington
(“RCW”) § 2.60.020. Therefore, the Ninth
Circuit has “certified a question to the Washington
Supreme Court where a question of law has not been clearly
determined by the Washington Courts, and the answer to the
question is outcome determinative.” Centurion
Props. III, LLC v. Chi. Title Ins. Co., 793 F.3d 1087,
1090 (9th Cir. 2015) (internal quotations omitted).
is intended to save “time, energy and resources”
and promote “a cooperative judicial federalism.”
Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).
The district court may exercise its “sound
discretion” over the decision to certify a question to
a state supreme court. Eckard Brandes, Inc. v.
Riley, 338 F.3d 1082, 1087 (9th Cir. 2003).
argues that the Court incorrectly ruled against Plaintiff
even though the state law was unsettled. See ECF No.
113 at 2-3. Therefore, Plaintiff's argument for
reconsideration rests on the appropriateness of certification
of the above-recited questions to the Washington Supreme
Court. However, Plaintiff has not shown that the questions
turn on a legal ambiguity, rather than on a fact-based
inquiry into the context of the denial of an insured's
benefits. As the Court found, the law upon which Plaintiff
relied supported that the relevant inquiry is fact dependent.
See ECF No. 111 at 14.
Plaintiff offers no reason for failing to request
certification prior to or during the two extensive oral
argument hearings that the Court held in this matter
regarding the dispositive motions on December 18, 2018, and
August 8, 2019. In the Ninth Circuit, motions seeking
certification that are filed “after the moving party
has failed to avail itself of a prior opportunity to seek
certification” are disfavored. Hinojos v.
Kohl's Corp., 718 F.3d 1098, 1108 (9th Cir. 2013)
(citing Thompson v. Paul, 547 F.3d 1055, 1065 (9th
Cir. 2008)). Motions for certification after an adverse
summary judgment decision are “generally inappropriate
. . . ...