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Miller v. Pacific Indemnity Co.

United States District Court, D. Arizona

May 31, 2019

Carley Anne Miller, Plaintiff,
Pacific Indemnity Co., et al., Defendants.



         Pending 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.


         On June 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.)


         On July 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.

         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.[2] On August 23, 2016, Cadwell reported that Ehle stole the UTV sometime prior to the accident.[3] 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.

         The 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.”

         The 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.


         Motion for Partial Summary Judgment

         Standard of Review

         A court 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.

         If the 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).

         At 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 ...

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