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Right at Home Glass LLC v. Liberty Mutual Group Inc.

United States District Court, D. Arizona

September 23, 2019

Right At Home Glass LLC, Plaintiff,
Liberty Mutual Group Incorporated, et al., Defendants.



         At issue is Defendant Liberty Mutual’s Motion to Dismiss and Motion to Compel Appraisal (Doc. 5, Mot.). Plaintiff Right At Home Glass has filed a Response (Doc. 18, Resp.), and Defendant a Reply (Doc. 22, Reply). The Court finds these matters appropriate for decision without oral argument. See LRCiv 7.2(f).

         I. BACKGROUND

         Plaintiff Right at Home Glass alleges that from November 2, 2017 through May 7, 2018, it replaced and installed glass for 139 customers who had automobile insurance through Defendant. (Doc. 1-3, Complaint (Compl.) ¶ 15.) When Plaintiff submitted invoices to Defendant for its work, Defendant paid only a portion of each invoice instead of paying the entire amount owed. (Compl. ¶ 18.) In total, Plaintiff asked for $128, 986.46, but Defendant paid only $55, 183.25-leaving an outstanding balance of $73, 803.21 on the 139 invoices. (Compl. ¶ 19.) Plaintiff alleges that it attempted to collect the outstanding balance, but Defendant refused to pay it. (Compl. ¶ 22.)

         For each glass replacement and installation service, Plaintiff alleges that the customer assigned his or her rights to collect payment from Defendant under the customer’s insurance policy in consideration for Plaintiff’s work. Plaintiff issued two documents for each customer-a work order and an invoice-that purportedly contained assignment language. The assignment language on the work orders provided to the Court is illegible. (Doc. 18-1, Ex. B.) The assignment language on the invoices states as follows:

Assignment of Proceeds, Benefits and Authorization to Pay: TERM NET 30 I hereby authorize the glass repairs and assign to RIGHT AT HOME GLASS (hereinafter “Assignee”) any and all Benefits from the insurer providing coverage for the repaired vehicle. This assignment of benefits is given in consideration for the glass repairs performed by Assignee. This acts as an assignment of rights and benefits to the extent of the services provided by Assignee. If the insurer refuses to make payments in full upon demand by me or Assignee, I hereby assign and transfer to Assignee any and all causes of action and all proceeds therefrom, and further authorize Assignee to prosecute said causes of action either in my name or Assignee’s name. I further authorize Assignee to compromise, settle or otherwise resolve claims and/or cause of actions as it may see fit. If my insurer sends payment to me, I will immediately forward payment to Assignee.

(Doc. 18-1, Ex. B.)

         During the spring and summer of 2018, April Nasic, a representative for Plaintiff, and Leah Cannon, a representative for Defendant, communicated about Plaintiff’s invoices that had outstanding balances.[1] On March 29, 2018, Ms. Nasic emailed Ms. Cannon “the next set of invoices totaling 164 claims[] that we are invoking appraisal for” under the insurance policies, with the name and phone number of Plaintiff’s appraiser. (Doc. 18, Ex. D-F, Nasic/Cannon Emails at 6.) Ms. Nasic followed up with emails to Ms. Cannon on March 30 and April 3 to ask if Ms. Cannon had received the appraisal claims. (Nasic/Cannon Emails at 7.) Ms. Cannon responded on April 3: “I did receive your email and the 164 claims you are invoking appraisal on. We will get these processed and sent over to [the appraiser] just as soon as possible!” (Nasic/Cannon Emails at 8.) On June 26, Ms. Nasic emailed Ms. Cannon asking, “When will the next set of claims be released? I am working on an offer letter for you as discussed and should have that over to you this week. Please keep me posted on the 450 PLUS claims I resent over for appraisal beginning of this month.” (Nasic/Cannon Emails at 12.) Ms. Nasic sent follow up emails on June 28 and July 2 asking if Ms. Cannon had any updates. (Nasic/Cannon Emails at 12-13.)

         Ms. Nasic and Ms. Cannon communicated by phone and email in July 2018-but the parties disagree as to exactly what was said. Each party blames the other for frustrating the appraisal process. Ms. Nasic refers to two phone calls in which Ms. Cannon “would not commit to releasing the claims for appraisal” and “indicated that [] the Defendant [] did not believe they had to honor [Plaintiff’s] request for appraisal.” (Nasic Decl. ¶¶ 23-25.) On the other hand, Ms. Cannon avers that on July 6, Ms. Nasic sent her an email with “an ultimatum that [Defendant] could either accept the national pricing agreement or the alternative would be that [Plaintiff] would not move forward with their appraisal request and would rather pursue the claims through litigation[.]” (Doc. 22, Ex. A, Declaration of Leah Cannon (Cannon Decl.) ¶ 19). Ms. Cannon states that subsequent phone calls with Ms. Nasic “confirmed []that she was only interested in either securing a national pricing agreement or litigating.” (Cannon Decl. ¶ 22.) In addition, Ms. Cannon avers that Defendant never denied Plaintiff’s right to appraisal in Arizona. (Cannon Decl. ¶ 25.)

         On October 22, 2018, Plaintiff filed this lawsuit alleging claims for breach of contract (Count One), breach of the duty of good faith and fair dealing (Count Two), and unjust enrichment (Count Three). (Compl. at 6-8.) Defendant has now moved to dismiss Plaintiffs Complaint in its entirety or compel appraisal.


         “A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may attack either the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction, or the existence of subject matter jurisdiction in fact.” Renteria v. United States, 452 F.Supp.2d 910, 919 (D. Ariz. 2006) (citing Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). “Where the jurisdictional issue is separable from the merits of the case, the [court] may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving factual disputes if necessary.” Thornhill, 594 F.2d at 733; see also Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (“With a 12(b)(1) motion, a court may weigh the evidence to determine whether it has jurisdiction.”). The burden of proof is on the party asserting jurisdiction to show that the court has subject matter jurisdiction. See Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990).

         “[B]ecause it involves a court’s power to hear a case, ” subject matter jurisdiction “can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). Courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 513-14 (2006).

         When analyzing a complaint for failure to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6), the well-pled factual allegations are taken as true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer,568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to ...

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