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Young v. Progressive Casualty Insurance Co.

United States District Court, E.D. California

June 6, 2017

JOHN CORDELL YOUNG, JR., Plaintiff,
v.
PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant.

          ORDER

          DONALD W. MOLLOY, DISTRICT JUDGE, UNITED STATES DISTRICT COURT

         On February 27, 2017, Defendant Progressive Casualty Insurance Company ("Progressive") filed a motion for summary judgment (Doc. 19.) Plaintiff John Cordell Young, Jr. ("Young") has not filed any briefing in opposition to the motion, though the deadline to do so has passed. On March 31, 2017, Progressive filed a reply brief asking that its motion be granted as unopposed. (Doc. 20.) Young still has not responded.[1] While a motion for summary judgment may not be granted simply because it is unopposed, Henry v. Gill Ind., Inc., 983 F.2d 943, 950 (9th Cir. 1993), Progressive has shown it is appropriate here.

         Summary Judgment Standard

         Summary judgment is appropriate when there are no genuine issues of material fact and the moving party can demonstrate it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant "always bears the initial responsibility" of articulating the legal basis for its motion and showing no genuine issue of material fact exists. Celotex Corp. v. Catrett, 411 U.S. 317, 322-23 (1986). "If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). "If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it." Fed.R.Civ.P. 56(e)(3).

         Factual and Procedural Background

         The following facts are taken from the Scheduling Order, (Doc. 15), and Progressive's Statement of Undisputed Facts, (Doc. 19-2), which is supported by a number of exhibits, including declarations and investigation records, (Docs. 19-3 through 19-21).

         On Monday, November 10, 2014, Young provided notice to Progressive of the theft of his 1961 GMC "diesel pusher" motor home. (Doc. 15 at ¶ 3(e).) Law enforcement recovered the motor home from a canal where it had been submerged that same day. (Id. at ¶ 3(f).) The motor home was missing its license plates and its Vehicle Identification Number tag. (Doc. 19-2 at ¶ 5.) The steering wheel had been tied to keep the motor home driving straight, and a pole had been wedged against the accelerator. (Id. at ¶¶ 6-7.) The motor home was insured under a Progressive California Motor Home Policy, No. 14211507-7 (the "Policy"). (Doc. 12 at ¶ 1.) The Policy included comprehensive coverage with agreed value of $63, 000 and a zero deductible. (Id. at ¶ 3.)

         After communication with the Stanislaus County Sheriffs Office, Progressive assigned investigation of the claim to Rita Sharma, a member of Progressive's Special Investigations Unit. (Sharma Decl., Doc. 19-3 at ¶ 7.) As part of its investigation, Progressive obtained cell phone records from phones belonging to Young, his wife, Anna Young, and his son, John Young III ("Young III"). (Doc. 19-2 at ¶ 9.) These records showed that on November 10, 2014, at 4:03 a.m., the cell phone belonging to Young III used the cell phone tower that was the closest to the canal where the motor home was recovered. (Id. at ¶ 11.)

         Both Young and Young III participated in Examinations Under Oath administered by Progressive as part of its investigation into Young's theft claim. (Id. at ¶ 13.) Young stated he believed his son's cell phone was in the vicinity of the canal because it had been inadvertently left for the weekend in a truck belonging Young's customer, Ed Amaral. (Id. at ¶ 14.) However, Young III testified that he did not have any reason to believe he did not have his phone during that time, and also that he could not think of anyone else who would have made calls from his cell phone during that time. (Id. at ¶ 17.) Subsequent analysis of cell phone records revealed that John Young Ill's cell phone was being used on November 7, 8, 9, and 10 in Modesto California, and near Plaintiffs home in Ceres, California. (Id. at¶ 16.)

         On July 9, 2015, Progressive denied coverage for the claim on the grounds that Young made material misrepresentations during the investigation of the reported theft claim. (Doc. 15 at ¶ 3(n).) Young filed suit against Progressive on July 13, 2016, alleging breach of contract and of the covenant of good faith and fair dealing, and requesting declaratory relief. (Doc. 1-1.) Progressive removed the action to this Court on the basis of diversity jurisdiction on August 12, 2016. (Doc. 1.)

         Analysis

         Progressive argues summary judgment is appropriate because (1) Young made a material misrepresentation regarding the theft claim, voiding coverage under the Policy and negating Young's breach of contract claim; and (2) under California law, where there is no breach of the insurance contract there can be no claim for insurance bad faith. (Doc. 19 at 11.) Progressive's arguments succeed, and summary judgment based on the undisputed facts is appropriate, as explained below.

         A. Breach of Contract Claim

         Young claims Progressive breached the insurance contract by failing to pay him for a loss covered under the Policy. (Doc. 1-1 at ¶ 23.) Progressive now argues Young cannot prove his breach of contract claim because he knowingly misrepresented a material fact in the course of presenting his theft claim to Progressive, namely that he lied to Progressive about his son's cell ...


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