United States District Court, D. Arizona
HONORABLE JAMES A. SOTO, UNITED STATES DISTRICT
before the Court are Plaintiff's Motion for Partial
Summary Judgment on Count One [Breach of Contract] (Doc. 48),
Defendant's Motion to Bifurcate Case and Motion to Stay
Discovery (Doc. 52), Plaintiff's Motion for Leave to Take
Depositions of: Leah Lewandowski, Sue Broeker, Tamra Tank,
and Heather Lindsay (Doc. 94), and Defendant's Motion for
Protective Order prohibiting the previously requested
depositions (Doc. 99). These motions are either fully briefed
or the time to respond has expired.
15, 2018, Plaintiff filed this action in the Superior Court
of the State of Arizona in and for the County of Maricopa.
(Doc. 1-3.) On July 25, 2018, Defendant removed the action to
the United States District Court for the District of Arizona.
(Doc. 1.) On September 5, 2018, Plaintiff filed the First
Amended Complaint. (Doc. 16.) On October 12, 2018, Plaintiff
filed a Motion for Partial Summary Judgment (Doc. 29), and
this action was transferred to the Honorable James A. Soto.
(Doc. 31.) On October 16, 2018, Plaintiff moved for leave to
file a Second Amended Complaint. (Doc. 33.) On October 19,
2018, Defendant filed the first motion to bifurcate. (Doc.
35.) On November 1, 2018, the parties filed a stipulation to
allow Plaintiff to amend the First Amended Complaint. (Doc.
41.) On November 2, 2018, the Court granted the parties'
stipulation and denied the previous motions as moot as the
First Amended Complaint would now be treated as nonexistent.
(Doc. 42.) The parties filed the present motions addressing
the Second Amended Complaint. (Docs. 48, 52.)
23, 2016, Plaintiff was involved in a utility task vehicle
(“UTV”) accident. She was a passenger on a UTV
owned by Ira Cadwell and driven by Brandon Kolsky.
Cadwell's employee, Travis Ehle, had taken the UTV to
Happy Jack, Arizona, approximately two hours away from
Cadwell's property, where others drove the UTV.
in question was insured under Cadwell's policy with
Defendant at the relevant times. On July 28, 2016,
Cadwell's insurance agent spoke with the insurance
company. The company informed the agent that if the UTV was
reported stolen the company would pay for damages and the
driver would be responsible for the damages and the claim
would not be charged against his policy. On August 23,
2016, Cadwell reported that Ehle stole the UTV sometime prior
to the accident. He informed the police that he possessed a
recording of Ehle admitting that Ehle did not have permission
to take the UTV. On September 15, 2016, Phoenix Police
Department filed a supplemental report noting that the case
may be a civil matter and that Cadwell had been unable to
produce the recording of Ehle.
policy excluded coverage for nonpermissive use, stating
“We do not cover any person who uses a covered vehicle
without permission from you or a family member.”
insurance company denied that Cadwell was liable for
Plaintiff's injuries as the UTV was stolen at the time in
question. In February 2017, Plaintiff sued Kolsky and the
driver of the other UTV involved in the accident in Arizona
state court. Kolsky tendered his defense to Defendant.
Defendant denied responsibility for coverage or defense. In
an email to Defendant, Kolsky's counsel expressed that
the facts indicated that the UTV was not stolen, but instead
that the vehicle was used with implied permission, and that
Defendant's actions may result in a bad faith suit.
Kolsky entered into an agreement with Plaintiff, in which he
assigned his rights, claims, and causes of actions against
Defendant to Plaintiff.
for Partial Summary Judgment
must 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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The movant bears
the initial responsibility of presenting the basis for its
motion and identifying those portions of the record, together
with affidavits, if any, that it believes demonstrate the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323.
movant meets its initial responsibility, the burden shifts to
the nonmovant to demonstrate the existence of a factual
dispute and that the fact in contention is material, i.e., a
fact that might affect the outcome of the suit under the
governing law, and that the dispute is genuine, i.e., the
evidence is such that a reasonable jury could return a
verdict for the nonmovant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 250 (1986); see Triton
Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th
Cir. 1995). The nonmovant need not establish a material issue
of fact conclusively in its favor, First Nat'l Bank
of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89
(1968); however, it must “come forward with specific
facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (internal citation
omitted); see Fed. R. Civ. P. 56(c)(1).
summary judgment, 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. In its analysis, the
court must believe the nonmovant's evidence and draw all
inferences in the nonmovant's favor. Id. at 255.
The court need consider only ...