Ray v. LM General Insurance Co.

          ORDER

          HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant LM General Insurance Company's^[1] Motion for Summary Judgment (Doc. 48) and Plaintiff Bradley Ray's Motion to Strike Defendant's Response to Plaintiff's Separate Statement of Facts in Support of Response to Motion for Summary Judgment (Doc. 56). For the reasons explained below, the Court will grant both motions.^[2]

         I. Motion to Strike

         On February 15, 2019, Defendant filed a Motion for Summary Judgment (Doc. 48) and an accompanying Statement of Facts (Doc. 49). Plaintiff filed his Response in Opposition to Defendant's Motion for Summary Judgment (Doc. 52), along with a Response to Defendant's Separate Statement of Facts and his own Separate Statement of Facts (Doc. 53). Defendant then filed a Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment. (Doc. 54.) Along with its Reply, Defendant also filed a “Response to Plaintiff's Separate Statement of Facts” (Doc. 55), responding paragraph by paragraph to Plaintiff's Separate Statement of Facts (Doc. 53).

         Plaintiff has filed a Motion to Strike Defendant's Response to Plaintiff's Separate Statement of Facts. (Doc. 56.) Plaintiff asserts that Defendant's filing (Doc. 55) was procedurally improper and should be stricken. Defendant argues that it merely “asserted its response and objections to those facts in Plaintiff's Statement of Facts that Defendant disputed.” (Doc. 57 at 2.) The Court agrees that Defendant's filing (Doc. 55) was not authorized by the rules.

         A party may move to strike “any part of a filing or submission on the ground that it is prohibited (or not authorized) by a statute, rule, or court order.” LRCiv. 7.2(m). Local Rule of Civil Procedure 56.1(a) and (b) provides that parties moving and responding to a motion for summary judgment must submit separate statements of material fact. Rule 56.1(b) further specifies that, “[n]o reply statement of facts may be filed.” The moving party may not file “a separate responsive memorandum to any additional facts in the non-moving party's separate statement of facts.” Marceau v. Int'l Broth. of Elec. Workers, 618 F.Supp.2d 1127, 1141 (D. Ariz. 2009).

         Defendant asserts that Federal Rule of Civil Procedure 56(c)(2) and 56(e) compel the contrary result. Federal Rule of Civil Procedure 56(c)(2) provides that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). Defendant argues that it follows that a moving party must also “have the opportunity to dispute and object to the [non-moving party's] stated facts in support of their position.” (Doc. 57 at 2-3.) While it is true that Federal Rule of Civil Procedure 56(c)(2) authorizes a moving party to dispute the admissibility of the non-moving party's evidence, such objections “must be included in the responding party's reply memorandum for the underlying motion and may not be presented in a separate responsive memorandum.” E.E.O.C. v. AutoZone, Inc., No. 06-cv-0926-PHX-SMM, 2008 WL 2509302, at *1 (D. Ariz. June 18, 2008). Defendant, the moving party, did not include its objections in its Reply (Doc. 54) but instead filed a separate unauthorized pleading (Doc. 55).

         Defendant's reliance on Federal Rule of Civil Procedure 56(e) also misses the mark. That rule provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . . the court may . . . consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e). Defendant therefore argues that it is “obligated” to submit a separate filing responding to each fact in Plaintiff's separate statement of facts “to prevent a finding from the Court that those facts are undisputed.” (Doc. 57.) This Court has previously explained that this argument “reflects a misunderstanding of the summary judgment standard.” Hunton v. Am. Zurich Ins. Co., No. CV-16-00539-PHX-DLR, 2018 WL 1182552, at *5 (D. Ariz. Mar. 7, 2018). A party moving for summary judgment bears a burden of demonstrating 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). A moving party does not need to “prevent a finding from the Court that [the non-moving party's] facts are undisputed” (Doc. 57), rather, the undisputed nature of material facts is precisely what a party must demonstrate to prevail on a motion for summary judgment.

         The Court finds that Defendant's “Response to Plaintiff's Separate Statement of Facts” (Doc. 55) is not authorized by either the Local Rules of Civil Procedure or the Federal Rules of Civil Procedure. Plaintiff's Motion to Strike (Doc. 56) will be granted and Defendant's unauthorized filing (Doc. 55) will not be considered in the Court's resolution of the pending Motion for Summary Judgment (Doc. 48).

         II. Motion for Summary Judgment

         Defendant argues for summary judgment on all three claims raised by Plaintiff. (Doc. 48.) First, Defendant argues that Plaintiff's breach of contract claim fails as a matter of law because Plaintiff has not presented the “corroborating evidence” required by A.R.S. § 20-259.01(M) and by Plaintiff's insurance policy. Second, Defendant argues that summary judgment must be granted on Plaintiff's bad-faith claim because Plaintiff has failed to produce any evidence of bad faith. Finally, Defendant argues that Plaintiff's negligence claim is not recognized under Arizona law, and that summary judgment must therefore be granted on the negligence claim.

         A. Factual Background^[3]

         This action arises from Defendant's refusal to pay on Plaintiff's automobile insurance claim. Plaintiff alleges that an accident occurred because a “phantom vehicle” cut him off, forcing him to swerve and crash. (Doc. 1-3 ¶ 7.) Plaintiff filed suit in Pima County Superior Court on July 31, 2017, and Defendant removed the case to this Court. (Doc. 1.) Plaintiff did not object to removal and stipulated that this Court has jurisdiction. (Doc. 5.) This Court has proper diversity jurisdiction because Plaintiff is a resident of Arizona, Defendant is organized under the laws of the State of Illinois and has its principal place of business in Massachusetts, and Plaintiff seeks the full $100, 000 coverage provided by the insurance policy. (Doc. 1 ¶ 9.)

         1. The Accident

         On December 3, 2015, Plaintiff crashed his 2006 Harley Davidson motorcycle as he was driving northbound on Oracle Road near the town of Oro Valley. (Doc. 49 at ¶ 1; Doc. 53 at ¶ 1.) At the time of the accident, Oracle Road was under construction. (Doc. 49 at ¶ 3; Doc. 53 at ¶ 3.) The inner (or left) northbound lane was closed for construction and blocked off by traffic control barricades. (Doc. 49 at ¶ 3; Doc. 53 at ¶ 3.) The outer (or right) northbound lane was in normal use, and what normally served as the right shoulder had been converted into a temporary second lane of travel. (Doc. 49 at ¶ 3; Doc. 53 at ¶ 3.) Plaintiff was travelling in what was normally the outer (or right) northbound lane, but which at the time served as the inner (or left) northbound lane because traffic was also traveling on the shoulder to the right. (See Doc. 49 at ¶¶ 3, 5; Doc. 53 at ¶¶ 3, 5.) The accident occurred as the construction zone was ending and traffic barricades were shifting traffic back into the normal lanes of traffic. (Doc. 49 at ¶ 3; Doc. 53 at ¶ 3.) Plaintiff alleges that the accident occurred when a car in the outside lane-normally the right shoulder-began merging into Plaintiff's lane. (Doc. 49 at ¶ 5; Doc. 53 at ¶ 5.) He alleges that when he perceived this vehicle entering his lane, he was forced to brake, shift his bike to the left, and crash. (Doc. 49 at ¶ 6; Doc. 53 at ¶ 6.) The other vehicle did not physically touch Plaintiff's motorcycle. (Doc. 49 at ¶ 2; Doc. 53 at ¶ 2.)

         2. Officer Horetski's Report

         Oro Valley Police Officer Dan Horetski reported to the scene of the accident to find Plaintiff lying on the ground but alert, conscious, and able to answer questions. (Doc. 49-1 at 117.)^[4] Plaintiff told Officer Horetski that a vehicle travelling in the lane to his right began merging into his lane, and that Plaintiff swerved to avoid the vehicle and struck a construction barricade. (Id.) Officer Horetski noted that the “collision occurred as the barricade[s] were shifting traffic back into the normal lanes of traffic.” (Id.) He determined that Plaintiff's motorcycle “left 36 feet of skid and struck the last barricade dividing the two lanes as they merged back into the normal traffic lanes.” (Id.) Officer Horetski also noted that “[w]hen looking at the barricade set up there could have been some confusion as to which lane the motorcycle was to merge into as the barricades did not merge traffic completely back into the appropriate lane of travel.” (Id.) No citation was issued and Plaintiff was transported to University Medical Center Hospital. (Id.)

         Officer Horetski's report included a diagram of the accident scene, which provides context for his observation that there may have been “confusion as to which lane the motorcycle was to merge into” due to the barricade design. (Id. at 118.) The diagram represents traffic barricades with grey dots and the skidline of Plaintiff's motorcycle with a dark black line. (Id.) It shows that, at the spot of Plaintiff's accident, barricades were shifting both lanes of traffic leftward back into their normal position. (Id.) The line of barricades to the right of Plaintiff's lane of travel, i.e. the line of barricades between what is normally the right lane and the shoulder, do not fully cross Plaintiff's lane, and so would have allowed Plaintiff's motorcycle to continue forward. (Id.)

         Officer Horetski's Diagram

         (Image Omitted)

         As Officer Horetski later explained during his deposition:

[T]raffic from the shoulder should be merging into the number 2 lane. Traffic from the number 2 lane should be merging back into the number 1 lane. But when you look at the construction setup, a motorcyclist could very easily go, I'm supposed to go straight, and it could very easily look like a car is merging into me.

(Id. at 172:3-8). In other words, because the lane-tapering barriers did not extend fully to the left across the lane that Plaintiff was traveling in, Plaintiff may have believed he could continue forward even though he was supposed to shift to the left.

         3. Report of ...