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Hm Hotel Properties v. Peerless Indemnity Insurance Co.

United States District Court, Ninth Circuit

August 23, 2013

HM Hotel Properties, an Arizona Limited Liability Company, Plaintiff,
Peerless Indemnity Insurance Company; and Does 1-50, inclusive, Defendants.


DAVID G. CAMPBELL, District Judge.

Defendant Peerless Indemnity Insurance Company has filed a motion for summary judgment on Claims 1 and 2 of Plaintiff HM Hotel Properties' complaint. Doc. 56. The motion has been fully briefed. Docs. 60, 63. For the reasons that follow, the Court will grant the motion and enter summary judgment in favor of Defendant.[1]

I. Background.

The parties agree on the following relevant facts: Plaintiff entered into an insurance contract with Defendant. Doc. 1-1, ¶ 7. Plaintiff paid Defendant an annual premium in exchange for coverage of its properties against damage caused by storms, including damage caused by hail. Id., ¶ 8. At all relevant times, Plaintiff's insurance policy was in effect. Id., ¶ 12. On October 5, 2010, a large hail storm occurred near Plaintiff's property. Id., ¶¶ 14-15. Several months later, a guest at the hotel with roofing expertise informed management of possible hail damage to the roof caused by the October storm. Doc. 57, ¶ 20. Based on the guest's informal inspection of the roof, Plaintiff filed a claim for storm-related damage to the roof on May 11, 2011. Doc. 1-1, ¶ 16. On May 24, 2011, Defendant retained Pinnacle Restoration ("Pinnacle") to inspect the roof for evidence of hail damage. Id., ¶ 17. Pinnacle reported no hail damage. Id. On June 7, 2011, Defendant retained an engineer from Project, Time & Cost Forensic Consultants ("PT&C") to re-inspect the roof and provide a second opinion. Doc. 57, ¶ 30. The PT&C engineer reported that any damage to the roof was not caused by hail. Id., ¶ 33. Accordingly, on June 16, 2011, Defendant denied Plaintiff's claim for hail-related roof damage. Id., ¶¶ 35, 36.

Plaintiff disagreed with the findings of Defendant's experts and, on October 13, 2011, advised Defendant that it had retained counsel. Id., ¶ 39. Plaintiff then retained an independent adjuster from Austin Insurance who inspected the property and reported hail damage to the roof and other parts of the property. Defendant re-opened the case and retained Absolute Adjusting to inspect the other parts of the property. Id., ¶¶ 42-43. Absolute did not inspect the roof because it did not have access to the roof and because Defendant said it was not necessary in light of the two previous inspections. Id., ¶ 49. Based on Absolute's damage report, Defendant sent a check to Plaintiff for $39, 587.41 for post-depreciation damage to the other parts of the property. Doc. 1-1, ¶ 19.

Plaintiff's original complaint alleged seven counts including breach of contract, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, negligent infliction of emotional distress, fraud, negligent misrepresentation, and declaratory relief. Doc. 1-1. The Court granted Defendant's motion to dismiss on five of the seven claims. Doc. 15. The remaining counts allege breach of contract and breach of the implied covenant of good faith and fair dealing.

II. Legal Standard.

A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, 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). Summary judgment is also 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, 477 U.S. at 322. Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed.R.Civ.P. 56(c). The judge's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.

III. Analysis.

A. Breach of Contract.

To prevail on breach of contract, Plaintiff must prove the existence of a contract between Plaintiff and Defendant, a breach of the contract by Defendant, and resulting damage to Plaintiff. See Coleman v. Watts, 87 F.Supp.2d 944, 955 (D. Ariz. 1998) (citing Clark v. Compania Ganadera de Cananea, S.A., 387 P.2d 235, 237 (Ariz. 1963)).

1. Delay.

Plaintiff asserts that Defendant breached the contract by "delaying Plaintiff's claim." Doc. 1 at ¶ 30. Defendant argues that there are no issues for trial because Plaintiff fails to specify which clause of the contract was violated by any alleged delay, and fails to identify any damages caused by any breach. The Court agrees. The record simply contains a litany of facts and dates, with no references to any specific contractual provisions. In the absence of any evidence that Defendant's alleged delay breached a ...

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