The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER REQUIRING SUPPLEMENTAL BRIEFING
Defendant Golden Eagle Insurance Corporation seeks partial summary judgment in this action for breach of insurance contract. On November 20, 2012, Plaintiff Rodney Mark Root filed a Notice of Non-Opposition, and asserted Plaintiff had an "insufficient basis for a meritorious opposition." (Doc. 23). However, in retrospect, the Court is unclear of the extent of Plaintiff's non-opposition and, indeed, if only partial summary judgment is sought, which issues remain if the motion is granted.
As the Court reads it, Plaintiff's complaint raises two claims:
1. Breach of contract for:
a.) failing to replace, rather than repair, the damaged equipment (Doc. 2 at 10-11 ¶ 6); and
b.) failing to pay the full value of lost use of the damaged equipment (Doc. 2 at 10-11 ¶ 7)
2. Breach of the covenant of good faith and fair dealing by:
a.) periodically reassigning the matter to different claims adjuster which required Plaintiff to repeat the claims process over and over (Doc. 2 at 10-11 ¶ 8); and
b.) failing to consider actual information, rather than supposition, when calculating the value of the loss of use and by failing to use generally accepted accounting methods (Doc. 2 at 10-11 ¶ 8).
Despite these issues and despite the notice of motion which indicated
that Defendant sought
only partial summary judgment, the grounds for the motion were
broadly drafted such that a 8 reasonable interpretation is that full,
not partial, summary judgment is sought.*fn1 These grounds are: 9
1. Golden Eagle did not breach its contract of insurance by failing to pay to replace, rather than repair, the damaged equipment because the policy gave it the right to elect to pay repair costs rather than to pay to replace the damaged equipment.
2. Golden Eagle is entitled to summary judgment on Plaintiffs claim of insurance bad faith because the undisputed facts establish it acted reasonably and with proper cause as a matter of law in adjusting the claim. (Doc. 19-1 at 1-2)
However, in reviewing the motion, there are undisputed facts which support all claims except the claim that the file was repeatedly reassigned to a different claims adjuster. On this topic, the Court notes that Defendant submitted the declaration of Robert Heflin which explains in summary, why the filed was reassigned. (Doc. 14-2 at 2 ¶ 2) However, there is not argument in the motion nor is there an undisputed fact which addresses this issue. Therefore, the Court cannot glean from Defendant's motion, despite its broadly written ground 2 (set forth above), whether it is seeking partial summary judgment related to the bad faith claim only as it relates to the failure to properly calculate the value of the loss of use of the damaged equipment. Likewise, when Plaintiff filed his notice of non-opposition to the motion, the Court ...