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Heather v. Allstate Property and Casualty Insurance Co.

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

January 2, 2020

FREDERICK HEATHER and DAWN WASELL-HEATHER, a married couple, Plaintiffs,



         This matter comes before the Court on Plaintiffs' motion for partial summary judgment (Dkt. No. 39) and Defendant's motion for clarification (Dkt. No. 49). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part Plaintiff's motion for partial summary judgment (Dkt. No. 39) and GRANTS Defendant's motion for clarification (Dkt. No. 49) for the reasons explained herein.

         I. BACKGROUND

         Plaintiffs had a homeowner's insurance policy with Defendant, which was in effect during the events at issue. (Dkt. No. 40 at 9-13.) Under the policy, Defendant is required to “settle within 30 days after the amount of loss is finally determined, ” whether “by an agreement between [Defendant] and [Plaintiffs], an appraisal award or a court judgment.” (Id. at 13.) On August 23, 2016, Plaintiffs' home and belongings were destroyed in a fire. (Dkt. No. 1-1 at 2-3.) Plaintiffs retained a public adjuster to handle interactions with Defendant. (Dkt. No. 22 at 2.) On January 13, 2017, almost five months after the fire, Defendant issued a payment for damage to the structure. (Dkt. No. 40 at 98.)

         The public adjuster submitted an inventory of Plaintiffs' lost belongings on March 15, 2017. (Id. at 37.) Plaintiffs submitted an executed proof of loss with the inventory. (Dkt. No. 25 at 11.) On May 16, 2017, Defendant provided Plaintiffs an actual cash value (“ACV”) estimate of $151, 998.90, approximately $60, 000 less than Plaintiffs' proof of loss. (See Id. at 11, 26-27; Dkt. No. 40 at 32.) In September 2017, Plaintiffs provided Defendant additional pricing information related to their inventory and proof of loss. (See Dkt. No. 40 at 45.)

         Internally, Defendant's representatives noted that they must identify the items in Plaintiffs' inventory that Defendants did not adjust and inform Plaintiffs why those items were rejected. (Id. at 25.) On October 3, 2017, Plaintiffs' public adjuster requested Defendant provide an explanation for why its estimate was lower than Plaintiffs' inventory and proof of loss. (See Dkt. No. 40 at 35.) Defendant instead instructed Plaintiffs to review Defendant's inventory and identify any issues with the items or pricing. (Id. at 128.) Plaintiff's adjuster insisted that it was Defendant's obligation to provide a reasonable explanation, but Defendants responded that “[o]ur estimate is our explanation.” (Id. at 40-42.) On November 9, 2017, and December 22, 2017, Plaintiffs' public adjustor repeated his request that Defendant provide an explanation of the estimate. (Id. at 36-38.) Again, Defendant stated that its estimate would serve as its explanation. (Id. at 130.)

         On February 21, 2018, Plaintiffs' counsel requested that Defendant identify any items for which it had denied benefits or disputed the value submitted by Plaintiffs. (Id. at 44-45.) Defendant did not substantively respond. (Id. at 47.) On March 28, 2018, Plaintiffs' counsel reiterated the request for a detailed explanation. (Id. at 49.) Defendant again stated that its estimate would serve as its explanation. (Id. at 51.) Defendant once again suggested that if Plaintiffs disagreed with the estimate, they should “indicate any items where [they] feel our valuation is incorrect” or where they “feel payment was denied.” (Id.) On April 12, 2018, Plaintiffs' counsel made a final request for explanation, to which Defendant did not respond. (Id. at 53.) On June 4, 2018, Plaintiffs filed an Insurance Fair Conduct Act (“IFCA”) notice. (Dkt. No. 25 at 52.)

         Plaintiffs' insurance policy provides for an appraisal process to resolve disagreements as to the amount of a loss. (See Dkt. No. 23-1 at 1.) On June 6, 2018, Plaintiffs requested an appraisal of the contents of their home that were destroyed in the fire. (Dkt. No. 22 at 2.) In December 2018, the appraisal panel rendered a unanimous decision, finding that ACV for the contents of the home was $191, 862.15. (Dkt. No. 23-2 at 1.) In January 2019, Defendant made a payment of $18, 386.15, apparently deducting a prior payment from the amount due. (Dkt. No. 40 at 119.) This left a shortfall of $19, 043.11. (Id. at 76.) On August 14, 2019, Plaintiffs deposed Alisha Jensen, Defendant's contents adjuster, and questioned her about Defendant's failure to pay the full amount of the contents appraisal award. (Id. at 21-22.) On August 20, 2019, Jensen sent a letter on behalf of Defendant apologizing for “an error in calculation” and enclosing an additional payment of $19, 043.11. (Id. at 76.)

         Plaintiffs move for summary judgment on Defendant's liability for three alleged instances of misconduct, reserving issues of causation and damages for trial. (Dkt. No. 39.) Defendant moves for clarification of the Court's order for production of a privilege log. (Dkt. No. 49.)


         A. Legal Standard

         “The court shall grant summary judgment if 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). In making such a determination, the Court must view the facts and justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made and supported, the opposing party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). Material facts are those that may affect the outcome of the case, and a dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49. Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not be “presumed.” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990). Ultimately, summary judgment is appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

         B. Failure to Pay Appraisal Award

         1. Breac ...

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