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Labertew v. Chartis Property Casualty Co.

United States District Court, D. Arizona

February 20, 2019

Marcus Labertew a/k/a Mark Labertew and Jane Doe Labertew, Husband and Wife; Joh McDermott a/k/a/ Jack McDermott and Jennifer McDermott, Husband and Wife, Plaintiff,
Chartis Property Casualty Company, Otherwise Known as AIG Casualty Company, and 21st Century North America Insurance Company f/k/a American International Insurance Company, Defendant.


          David G Campbell Senior United States District Judge.

         Plaintiffs Marcus Labertew and John and Jennifer McDermott seek to enforce a judgment against Defendant Chartis Property Casualty Company, otherwise known as AIG Casualty Company and 21st Century North America Insurance Company, formerly known as American International Insurance Company. Doc. 42. Plaintiffs have filed a partial motion for summary judgment (Doc. 96) and Defendant has filed a motion for summary judgment (Doc. 94). The motions are fully briefed (Docs. 100, 102, 108, 109), and although Defendant requests oral argument, the Court concludes that such argument will not aid its decision. See Fed. R. Civ. P. 78(b); LRCiv 7.2(f). For reasons stated below, the Court will deny Plaintiffs' motion and grant Defendant's motion.

         I. Background.

         The following facts are undisputed unless otherwise noted.

         Plaintiffs Marcus Labertew and John McDermott were former employees and officers of BioNovix, Inc., a business engaged in the distribution and sale of health products. Doc. 95-3 at 3 ¶¶ 2, 6. Loral Langemeier was a BioNovix investor and director. Id. ¶ 2. Ms. Langemeier held a homeowner's insurance policy and an excess insurance policy issued by Defendant for the period from June 26, 2009 to June 26, 2010, both of which included personal liability coverage. Doc. 95 ¶ 1.

         Plaintiffs sued Ms. Langemeier and Fred Auzenne in state court, asserting breach of contract, defamation, fraud, and other claims arising out of their employment with BioNovix. Doc. 95-3; see Labertew v. Auzenne, No. CV2010-051209 (Ariz. Super. Ct. Mar. 11, 2010). This lawsuit will be referred to in this order as the “underlying lawsuit.” Plaintiffs alleged that Ms. Langemeier and Mr. Auzenne committed the wrongful acts in their personal capacity and not on behalf of BioNovix. Id. at 3 ¶ 3. After more than two years of litigation, Ms. Langemeier tendered the defense of the underlying lawsuit to Defendant. Her tender letter cited Arizona case law and included a copy of Plaintiffs' first amended complaint, eight pages of deposition from Mr. McDermott, and seven pages of an oral argument transcript. Doc. 95 ¶ 6. In a letter dated February 4, 2013, Defendant informed Ms. Langemeier that the claims in the underlying lawsuit were excluded by the director's errors or omission exclusion and the business pursuits exclusion of her insurance policies. Doc. 48 at 11-15. The letter stated that if Ms. Langemeier disagreed, she should provide additional materials including transcripts of all depositions, pleadings, summary judgment motions, pleadings for other related cases, and any other documents that may be helpful. Id.

         The underlying lawsuit went to trial in state court, and, on the third day of trial, Plaintiffs and Ms. Langemeier entered into a stipulated judgment against Ms. Langemeier for $1.5 million. Doc. 1-16 at 27-28. The judgment was part of what is commonly called a “Damron agreement” under Arizona law. It included a covenant not to execute on the judgment against Ms. Langemeier and an assignment to Plaintiffs of Ms. Langemeier's insurance coverage and bad faith claims against Defendant. See Doc. 103-1; see also Damron v. Sledge, 460 P.2d 997 (Ariz. 1969).

         Rather than filing a new action against Defendant asserting the claims assigned by Ms. Langemeier, Plaintiffs chose to attempt to collect the stipulated judgment through a garnishment action against Defendant. Doc. 1-16 at 41-45. Plaintiffs initiated the garnishment action in state court, and Defendant removed it to this Court and answered the writs of garnishment, denying that it owed any funds to Plaintiffs. Docs. 6, 7. Plaintiffs did not file timely objections to the answers, and Defendant requested that the Court enter judgment in its favor. Doc. 9. The Court did so, finding that under Federal Rule of Civil Procedure 69(a), Arizona procedures governed the removed garnishment proceeding and Plaintiffs had failed to comply with Arizona's ten-day objection requirement. Docs. 26; 27. On appeal, the Ninth Circuit reversed, holding that Rule 69 did not apply to this case because there was no federal judgment. Doc. 38. The court of appeals remanded the case with instructions to allow re-pleading. Doc. 38.

         After remand, Plaintiffs filed an amended complaint asserting the insurance coverage and bad faith claims assigned to them by Ms. Langemeier and seeking to recover the $1.5 million stipulated judgment, as well as damages for insurance bad faith. Doc. 42 at 3-4. Plaintiffs now move for summary judgment on the choice of law in this case, arguing that California law should apply. Doc. 96. Defendant moves for summary judgment on Plaintiffs' claims. Doc. 94.

         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 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).

         III. Discussion.

         A. Plaintiff's Motion for Partial Summary Judgment.

         1. Choice of Law for Contracts.

         In diversity cases, “the district court must apply the choice-of-law rules of the state in which it sits.” Abogados v. AT & T, Inc., 223 F.3d 932, 934 (9th Cir. 2000). Arizona follows the Restatement's “most significant relationship” test. See Bates v. Super. Ct., 749 P.2d 1367, 1369 (Ariz. 1988); Magellan Real Estate Inv. Tr. v. Losch, 109 F.Supp.2d 1144, 1155 (D. Ariz. 2000). The Restatement contains general principles to be applied to all conflicts, general principles to apply to contracts, and specific principles to apply to insurance contracts. Restatement (Second) of Conflict of Laws §§ 6, 188, 193.

         Section 193 provides that the rights created by a contract of fire, surety, or casualty insurance “are determined by the local law of the state which the parties understood was to be the principal location of the insured risk during the term of the policy.” That is “unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.” Restatement (Second) of Conflicts § 193; see also Beckler v. State Farm Mut. Auto Ins., 987 P.2d 768, 772 (Ariz.Ct.App. 1999). Courts should consider the choice-of-law principles in § 6 when considering if another state has a more significant relationship to the insurance contract and the parties. The Court may also look to § 188 to inform the § 6 analysis. Id. cmt. c.

         Plaintiffs argue that California law applies because one of Ms. Langemeier's insured risks is located there, and it has the most significant relationship to the transaction and the parties. Doc. 96 at 3-4. Defendant asserts that Arizona law applies because it governs the underlying Damron agreement, the insured risk is located in Arizona, and Arizona has the most significant relationship to the parties. Doc. 100 at 7-12.

         a. The Insured Risk.

         The insured risk is the object or activity that is the subject matter of the insurance policy, and its principal location is in the “state where it will be during at least the major portion of the insurance period.” Restatement (Second) of Conflicts § 193 cmt. b. Under § 193, the location of the insured risk should be given the greatest weight when determining which state's law applies, so long as the risk can be located, at least principally, in a single state. Id. But the importance of the location of the insured risk varies from case to case. Id. Plaintiffs argue that the insured risks in this case are located in Nevada and California because those are the locations of the properties covered by Ms. Langemeier's homeowner's and excess liability insurance policies. Doc. 96 at 3.

         Courts are split on whether an “insured risk” under a homeowner's policy would continue to be the home when the suit is filed under the policy's personal liability coverage. Compare Metropolitan Prop & Cas. Ins. v. Gilson, No. CV-09-01874-PHX-GMS, 2010 WL 2721906, at *2 (D. Ariz. July 7, 2010) (location of the home is the location of the insured risk), with AIG Prop. Casualty Ins. v. Green, 217 F.Supp.3d 415, 425 n.11 (D. Mass. Nov. 8, 2016) (noting that the insured's personal liability is the insured risk, so the proper location should be the insured's domicile).

         In Beckler v. State Farm Mut. Auto. Ins., 987 P.2d 768 (Ariz.Ct.App. 1999), the plaintiffs sought payment from an underinsured motorist policy when their son was injured as a pedestrian by a hit-and-run driver. Id. Plaintiffs resided in Nebraska, but their son and their insured car were in Arizona. Id. In its choice-of-law analysis, the Arizona Court of Appeals determined that the location of plaintiffs' Arizona vehicle was dispositive because the automobile was the policy's insured risk. Id. Even though underinsured motorist policies will cover the insured individual around the world, the policy coverage would not exist but for the plaintiffs' car. Id. n.4.

         Ms. Langemeier's personal liability coverage applies to actions she personally takes that give rise to liability, not conditions in her homes, and therefore logically could attach to her, not her homes. But the liability insurance would not exist without her homes, and, under Beckler, the homes therefore are the “insured risks” for purposes of construing her insurance contracts. Ms. Langemeier's homeowners' insurance policy covers three homes in Nevada. See Doc. 103-3 at 3-40. And her excess liability policy covers three homes in Nevada and one in California. Doc. 103-3 at 80. The locations of the insured risks are therefore Nevada for the homeowner's policy and California and Nevada for the excess liability policy. See Doc. 97 ¶ 9.

         Defendant argues that the insured risk is the defense of the suit in Arizona (Doc. 100), but this argument is not consistent with the definition of “insured risk.” The insured risk was the liability arising from Ms. Langemeier's actions, not the lawsuit itself. Defendant also argues that the place of insured risk is less important because this is a multiple risk policy, considered under comment f to § 193. Doc. 100 at 7-8. A multiple risk insurance policy is one in which a single policy insures risks in several states. Restatement (Second) of Conflicts § 193 cmt. f. A multiple risk policy usually incorporates any special local laws of the location of the insured risk. Id. While Ms. Langemeier's excess liability policy does appear to be a multiple risk policy, Defendant does not explain why that fact would affect the Court's analysis because none of the insured risks were located in Arizona.

         b. Section 6 and 188 Factors.

         After determining the location of the insured risk, the Court must consider whether another state has a more significant relationship to the contract and the parties. See Restatement (Second) of Conflicts § 193. To determine if there is another state with a more significant relationship, the Court must examine the principles in § 6, as well as the factors in § 188. Id. The significant relationship test is qualitative not quantitative. See Bates, 749 P.2d at 1370.

         Section 6 identifies several underlying principles to aid in evaluating all conflicts: (1) the needs of the interstate and international systems; (2) the relevant policies of the forum; (3) the relevant policies of other interested states and the relative interests of those states in determination of the particular issue; (4) the protection of justified expectations; (5) the basic policies underlying the particular field of law; (6) certainty, predictability, and uniformity of result; and (7) ease in the determination and application of the law to be applied. Restatement (Second) of Conflict of Laws § 6.

         Section 188 provides additional contract-specific factors, including the (1) place of contracting; (2) place of negotiation of the contract; (3) place of performance; (4) location of the subject matter of the contract; and (5) domicile, residence, nationality, place of incorporation, and place of business of the parties. Restatement (Second) of Conflict of Laws § 188(2).

         Considering the relevant factors, Arizona is the state with the most significant relationship. The parties are all residents of Maricopa County, Arizona, and BioNovix's principal place of business is Arizona. See 95-3 ¶ 2. The relevant underlying events, including all BioNovix business interactions, phone calls, and employment contracts occurred in Arizona. See id. ¶¶ 6-26. The only event that did not occur in Arizona was the arrest Plaintiffs alleged to support their false imprisonment claim. Id. ¶¶ 38-42. The arrest occurred in South Korea when Mr. McDermott was traveling on BioNovix business, and Ms. Langemeier called the Korean distributor from Arizona to report Mr. McDermott for withholding funds from their Korean distributor. See id. When Ms. Langemeier tendered her defense, she cited Arizona law, and Defendant sought Arizona coverage analysis to determine if Ms. Langemeier's claims were covered. See Doc. 103-2 at 1-3, 13-14. Further, the underlying lawsuit was filed in Arizona and under Arizona law, and no party discussed California law before this motion. The weight of the evidence shows that the parties expected Arizona law to apply. Plaintiffs cite no evidence to the contrary.[1]

         Plaintiffs argue that California law should govern because it is the location where performance and breach of the insurance contract occurred. Doc. 96 at 4. The claims handling was in California and the denial of defense and indemnification occurred in California and was later approved in New Jersey. Id. But as noted above, Defendant applied Arizona law in analyzing its duty to defend, and the alleged breach of contract is the failure to defend, which occurred in Arizona. See cf. Landi v. Arkules, 835 P.2d 458, 462-63 (Ariz.Ct.App. 1992) (finding Arizona law applied where the only connection to Illinois was the location of the private investigator's office, but the investigation and all of the parties were in Arizona). Under Plaintiffs' reading, every insured would be subject to the law of the state where their claims were processed, giving insurers the choice of law based on where they send the claim. See cf. Bates, 749 P.2d at 1372 (as a national coverage provider the insured could not reasonably expect that every aspect of its conduct would be governed by the law of the state in which the contract originated). This is not a logical application of § 6 or § 188.

         Plaintiffs also note that California law has a public policy prohibiting insurance carriers from refusing a defense without having all the facts before it. Doc. 109 at 9 (citing Mullen v. Glens Falls Ins., 73 Cal.App.3d 163, 173-74 (Ct. App. 1977). Plaintiffs misrepresent the holding of Mullen, which states that the duty to defend arises whenever the insurer “ascertains facts which give rise to the potential of liability under the policy.” 73 Cal.App. at 169. In these circumstances under California law, the crucial question is whether the insurer is in possession of factual information giving rise to potential liability. Id. at 170. If an insurer has such information, then the insurer cannot refuse to defend the lawsuit without further investigation. Id. at 173 (“[A]n insurance company, without making an investigation of any kind, [cannot] deny an insured a defense at a time when it has reason to believe that there is potential liability under the insurance policy.”). This is substantially similar to Arizona law, which requires an insurer to investigate if “the insured makes some factual showing that the suit is actually one for damages resulting from events that fall under policy terms.” Lennar Corp. v. Auto-Owners Ins., 151 P.3d 538, 547 (Ariz.Ct.App. 2007). No. strong policy difference warrants applying California law.

         The Court finds Arizona is the state with the most significant relationship and that Arizona law ...

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