United States District Court, D. Arizona
Murray Enow, Chief United States District Judge.
before the Court is Defendant American Family Mutual
Insurance Company (“Defendant”)'s Motion for
Summary Judgment (Doc. 16). For the following reasons, the
motion is denied.
October 12, 2017, Plaintiff Victoria Nez's adult sister,
Jovita Baldwin, was fatally injured while crossing Camelback
Road. The deceased was hit by a vehicle driven by non-party
Ledrius Franklin. Plaintiff is now a legal guardian to the
deceased's thirteen-year-old son and personal
representative of the deceased's estate.
maintains an uninsured motorist policy with Defendant. The
policy provides uninsured motorist coverage for all family
members that are in the same household as Plaintiff. Upon the
death of her sister, Plaintiff filed a claim for the
uninsured motorist coverage. Defendant denied Plaintiff's
claim for failure to provide evidence that the deceased was
Plaintiff's relative and a member of Plaintiff's
household. Plaintiff claims to have provided sufficient
evidence. As a result, Plaintiff brought this action against
Defendant alleging breach of contract. Defendant now moves
for summary judgment.
purpose of summary judgment is “to isolate and dispose
of factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment
is appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, shows “that there is
no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). Only disputes over facts that might
affect the outcome of the suit will preclude the entry of
summary judgment, and the disputed evidence must be
“such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323.
Parties opposing summary judgment are required to
“cit[e] to particular parts of materials in the
record” establishing a genuine dispute or “show[
] that the materials cited do not establish the absence . . .
of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). A
district court has no independent duty “to scour the
record in search of a genuine issue of triable fact[.]”
Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996).
dispute arose because it is unclear in what capacity
Plaintiff is bringing this action. The Arizona statute
governing wrongful death actions provides:
An action for wrongful death shall be brought by and in the
name of the surviving husband or wife, child, parent or
guardian, or personal representative of the deceased
person for and on behalf of the surviving husband or
wife, children or parents, or if none of these
survive, on behalf of the decedent's estate.
A.R.S. § 12-612 (emphasis added). It is undisputed that
Plaintiff may not bring a wrongful death action in her
individual capacity or on behalf of the estate. It is
similarly undisputed that Plaintiff may bring a wrongful
death action in her capacity as personal representative of
the estate on behalf of the decedent's surviving son.
moved for summary judgment because it understood Plaintiff to
be improperly bringing a wrongful death action either in her
individual capacity or on behalf of the estate. Plaintiff
asserts in her Response, for the first time, that she is
bringing this action on behalf of the decedent's son.
Because Plaintiff may bring a wrongful death action on behalf
of a statutory beneficiary, summary judgment for Defendant on
the grounds that Plaintiff is an improper ...