United States District Court, D. Arizona
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 ...