Barker v. Ameriprise Auto & Home Insurance Co., et al, No. 3:2012cv05141 - Document 20 (W.D. Wash. 2012)
Court Description: ORDER denying 9 Defendant IDS Property's Motion for Summary Judgment, signed by Judge Ronald B. Leighton.(DN)
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Barker v. Ameriprise Auto & Home Insurance Co., et al 1 Doc. 20 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 MARK BARKER, CASE NO. 3:12-cv-05141-RBL 9 Plaintiff, 10 v. ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 AMERIPRISE AUTO & HOME INSURANCE AGENCY, INC., and IDS PROPERTY CASUALTY INSURANCE CO., Defendant. 15 Before the Court is Defendant IDS Property Casualty Insurance Company’s Motion for 16 Summary Judgment (Dkt. #12). On January 22, 2011, firefighters responded to a fire at the 17 residence of Mr. Barker, the plaintiff. Mr. Barker, who was on vacation at the time of the fire, 18 arrived home to discover that in addition to the fire damage, some of his personal property was 19 missing. Mr. Barker filed an insurance claim with IDS for the loss caused by the fire and the 20 theft. Almost 6 months after the fire, IDS denied Mr. Barker’s insurance claim and voided his 21 policy based on IDS’s own findings and on criminal charges filed against Mr. Barker for filing a 22 false insurance claim. Specifically, IDS determined that Mr. Barker had made material 23 24 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 misrepresentations about the location of Mr. Barker’s cell phone while he was on vacation, the 2 amount of rent paid after the fire, and the ownership of a Nikon camera. 3 I. FACTUAL BACKGROUND 4 A. 5 During the early morning of January 22, 2011, a fire ignited at Mr. Barker’s home. (Def. The Fire and Insurance Claim 6 Mot. for Summ. J. at 2; Pl. Resp. at 1.) The Tacoma police department determined that someone 7 intentionally started the fire; however the identity of the perpetrator remains unknown. (First 8 Am. Compl. at 3.) At the time of the fire, Mr. Barker was vacationing in the San Juan Islands 9 with his girlfriend, Ms. Peters. (First Amend. Compl. at 3.) Upon his return, Mr. Barker stated 10 he inspected the damaged house and noticed that several pieces of personal property were 11 missing. (Id.) 12 On February 6, 2011, Mr. Barker filed a claim with his insurer, IDS Property Casualty 13 Insurance Co., for $11,633.99—the replacement cost of the items he believed were stolen. 14 (Answer at 2.) A little over a week later, IDS demanded Mr. Barker submit to an examination 15 under oath and requested Mr. Barker’s girlfriend, Ms. Peters, also submit to one. (Def.’s Mot. 16 for Summ. J. at 3; Pl.’s Resp. at 2.) Four months after the claim was filed, on June 6th, Arson 17 Detective Jason Brooks informed IDS that the Tacoma police had taken Mr. Barker into custody 18 for Providing a False Proof (Wash. Rev. Code § 48.30.230) in relation to the IDS insurance 19 claim. (Def.’s Mot. for. Summ. J. at 4). 20 At the beginning of July, IDS denied Mr. Barker’s insurance claim and voided his policy 21 for making material misrepresentations during the claim’s process and engaging in fraud. (Id. at 22 4; Pl. Resp. at 2.) In early January of 2012, Mr. Barker initiated an action against IDS for a 23 Declaratory Judgment for his loss. (Compl. at 1.) In late March, Mr. Barker entered an Alford 24 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 plea in relation to the charges for a False Claim of Proof against him, stating, “I maintain my 2 innocence, but am entering this guilty plea to take advantage of the state’s recommendations are 3 [sic] that a trier of fact could find me guilty beyond a reasonable doubt . . . .” (Pl.’s Resp. at 3; 4 Def.’s Mot. for Summ. J., Ex. 20 at 4.) 5 IDS claims that Mr. Barker’s Alford plea entitles it to summary judgment. IDS also 6 claims that even without the Alford plea, Mr. Barker made false assertions during the insurance 7 investigation process which voided Mr. Barker’s policy. (Def.’s Mot. for Summ. J. at 11). 8 B. 9 Although IDS appears to question the truth of all of Mr. Barker’s statements, its main The Disputed Representations 10 argument boils down to three of Mr. Barker’s assertions: (1) the location of Mr. Barker’s work 11 cell phone at the time of the fire; (2) the amount of Mr. Barker’s rent after the fire; and (3) the 12 ownership of a Nikon camera (or lack thereof). 13 First, IDS argues that Mr. Barker made a material misrepresentation regarding the 14 location of his work cell phone at the time of the fire. According to IDS, Mr. Barker claimed 15 that he turned in his work cell phone prior to leaving for the vacation that occurred during the 16 fire. (Def.’s Mot. for Summ. J. at 3.) When the interviewer asked Mr. Barker why he no longer 17 had his work phone, Mr. Barker stated, “Because they were—I was going on vacation—I had 18 this time off, and so they wanted that so that we don’t use it. We are not allowed to use them for 19 personal use.” (Rumbaugh Decl., Ex. 1, at 11; Thenell Decl., Ex. 4 at 5.) After the interviewer 20 asked Mr. Barker if he turned the phone in before he left, Mr. Barker answered, “Correct.” (Id.) 21 In a later interview, Mr. Barker stated that he turned his work phone in before going on unpaid 22 leave but had the phone during the fire. (Pl.’s Resp. at 3; Def.’s Mot. for Summ. J. at 4.) Mr. 23 Barker did not seek reimbursement for the phone (because, of course, it was not his). 24 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 Additionally, IDS argues that Mr. Barker sought reimbursement for extra living expenses 2 that he did not incur. (Def.’s Mot. for Summ. J. at 3.) Despite not receiving rent from Mr. 3 Barker, Ms. Peters wrote a letter to IDS stating that Mr. Barker was renting a room at her 4 apartment for $600.00. (Thenell Decl., Ex. 5 at 2; Rumbaugh Decl., Ex. 3 at 16.) During the 5 IDS conducted examination, Ms. Peters clarified that she wrote the letter because Mr. Baker told 6 her it was required in order for reimbursement. (Thenell Decl., Ex. 5 at 2; Rumbaugh Decl., Ex. 7 3 at 16) Both Ms. Peters and Mr. Barker stated that an IDS agent was working with Mr. Barker 8 to figure out how to pay for extra living expenses. (Thenell Decl., Ex. 4 at 9.) Although Mr. 9 Barker stated he had given Ms. Peters money for groceries as a form of rent, Ms. Peters stated 10 she had not received any money from Mr. Barker. (Thenell Declaration, at 4; Rumbaugh 11 Declaration, Ex. 3 at 16.) Mr. Barker conceded that at the time of the IDS investigation he had 12 not given her any money for rent, but stated, “[t]hat’s what I’m going to help her out with.” 13 (Thenell Decl., Ex. 5 at 7; Rumbaugh Decl., Ex. 1 at 12.) At some point, Mr. Barker did give 14 Ms. Peters two $500.00 checks for living expenses. (Pl.’s Resp. at 4; Thenell Decl., Ex. 17 at 3.) 15 Finally, IDS seems to dispute whether Mr. Barker ever owned a Nikon camera he 16 claimed was stolen the night of the fire. (Defs.’ Mot. for Summ. J. at 12.) Almost $800.00 of 17 Mr. Barker’s $11,633.99 missing property claim came from a Nikon camera. (Def.’s Mot. for 18 Summ. J. at 12; Pl.’s Resp. at 2.) Mr. Barker testified that he purchased the Nikon camera at 19 Costco in December of 2010—shortly before the fire. (Rumbaugh Decl., Ex. 1 at 32.) But 20 according to the Declaration of Probable Cause, Mr. Barker’s Costco membership, going all the 21 way back to 2006, shows no purchase of a Nikon camera. (Thenell Decl., Ex. 17 at 2.) 22 Similarly, the Declaration of Probable Cause states that Mr. Barker’s bank account contains no 23 evidence of a withdrawal sufficient to support the purchase. (Id.) 24 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 Several months after the fire, Mr. Barker’s girlfriend, Diana Peters, purchased the same 2 camera from Costco as a replacement for Mr. Barker. (Pl. Resp. at 2.) Mr. Barker wrote Ms. 3 Peters a check for $850, but then returned the camera and received cash. (Def. Mot. for Summ. 4 J., Ex. 17 at 4.) After returning the camera, Mr. Barker submitted his check to Ms. Peters for the 5 camera to IDS for reimbursement. (Id.) 6 C. 7 All parties agree on the language of the IDS insurance policy. The policy protected The IDS Insurance Policy 8 against “fire or lightening” and “theft or attempted theft, including loss of property from a known 9 place if it is likely that a theft has occurred.” (First Am. Compl., Ex. 1 at 4.) IDS does not insure 10 against a theft “committed by an insured person.” (Id. at 5.) According to the terms of the 11 Insurance Policy, if the replacement cost of personal property is over $500, IDS will not pay for 12 the full cost until “actual repair or replacement is completed.” (Id. at 7). Most importantly, the 13 policy allows IDS to void coverage if “an insured person has [(1)] Intentionally concealed or 14 misrepresented any material fact or circumstances; or [(2)] Engaged in fraudulent conduct.” (Id. 15 at 18.) 16 II. ANALYSIS 17 A. 18 Summary judgment is appropriate when, viewing the facts in the light most favorable to Summary Judgment Standard 19 the nonmoving party, there is no genuine issue of material fact which would preclude summary 20 judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to 21 summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to 22 interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for 23 trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of 24 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 evidence in support of the non-moving party’s position is not sufficient.” Triton Energy Corp. v. 2 Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not 3 affect the outcome of the suit are irrelevant to the consideration of a motion for summary 4 judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, 5 “summary judgment should be granted where the nonmoving party fails to offer evidence from 6 which a reasonable [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 7 1220. 8 B. 9 The rules and principles governing the court’s interpretation of an insurance contract are The Insurance Policy 10 the same as with any contract. The court’s primary goal is to ascertain the parties’ intent. The 11 interpretation of an insurance policy is a question of law, and the policy is construed as a whole 12 with the court giving force and effect to each clause in the policy. Queen City Farms v. Central 13 National Ins. Co., 126 Wash. 2d 50, 59–60 (1994); see also American Star Ins. Co. v. Grice, 121 14 Wash. 2d 869, 874 (1993). The language of an insurance policy is interpreted in accordance 15 with the way it would be understood by the average person, rather than in a technical sense. Id. 16 Under the insurance policy at issue here, the language is clear; if Mr. Barker knowingly 17 made material misrepresentations regarding his insurance claim, the policy is void. In order for 18 this Court to grant IDS’s summary judgment motion, IDS must establish that no reasonable trier19 of-fact could find that Mr. Barker’s statements were made without an intent to deceive or that the 20 statements were immaterial. 21 In Washington, an intent to deceive is presumed if the insurer establishes that the insured 22 knowingly made a false statement. See Ki Sin Kim v. Allstate Ins. Co., Inc., 153 Wash. App. 23 339, 356 (2009). If the insurer establishes a knowingly false statement, the burden shifts to the 24 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 insured to establish an honest motive or good faith. Id. But a “bare affirmation that there was no 2 intent to deceive is not credible evidence of good faith.” Kay v. Occidental Life Ins. Co., 28 3 Wash. 2d 300, 302 (1947). 4 Additionally, a misrepresentation is material if “when made, it could have affected the 5 insurer’s investigation.” Allstate Ins. Co. v. Huston, 123 Wash. App. 530, 539 (2004) (citing 6 Tran. v. State Farm Fire & Cas. Co., 136 Wash. 2d 214, 224 (1998)) (emphasis removed). 7 Unless no reasonable minds could differ on the question of whether a statement was material, it 8 is a question for the trier-of-fact. See Ki Sin Kim, 153 Wash. App. at 355. 9 10 C. The Alford Plea IDS argues that Mr. Barker’s Alford plea establishes that there is no genuine issue of 11 material fact. An Alford plea allows the defendant to plead guilty for sentencing purposes, while 12 simultaneously maintaining his innocence. Under Washington Law, an Alford plea is not given a 13 preclusive effect in a subsequent civil action. Clark v. Baines, 150 Wash. 2d 905, 917 (2004); 14 see also Safeco Ins. Co. of America v. McGrath, 42 Wash. App. 58, 62 (1985) (“A criminal 15 defendant must contend with powerful, coercive forces when presented with a choice of either 16 (a) certain, prolonged incarceration if he exercises his right to proceed to trial and is found guilty 17 of the crimes charged in the information . . . or (b) a strong probability of a deferred or 18 suspended sentence if he pleads guilty to a reduced charge.”). 19 If the Alford plea was accepted as an admission of false statements, it would give 20 preclusive effect to the plea—contrary to Washington law. IDS attempts to circumvent the 21 Washington rule by arguing that Mr. Barker admitted there was enough evidence for a trier-of22 fact to convict beyond a reasonable doubt, so there must be enough evidence to convict by a 23 preponderance of the evidence. But Mr. Barker’s acknowledgement of the existence of evidence 24 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 is not an admission as to the truth of that evidence. Indeed, that distinction is the very point of 2 an Alford plea. Nor was Mr. Barker’s Alford plea an acknowledgment that no reasonable trier3 of-fact could find him innocent. Throughout the plea, Mr. Barker specifically maintained his 4 innocence and stated that he entered the plea deal “to take advantage of the state’s 5 recommendations . . . .” Because all evidence must be taken in the light most favorable to the 6 non-moving party, even assuming that the Alford plea is admissible evidence (a decision not 7 made here), it is not enough to establish that there is no genuine issue of material fact as to 8 whether Mr. Barker knowingly made material misrepresentations. 9 Thus, IDS Motion for Summary Judgment based on the Alford plea is DENIED. 10 D. 11 First, IDS argues that Mr. Barker knowingly made misrepresentations regarding the The Claimed Misrepresentations 12 location of Mr. Barker’s work cell phone and that the misrepresentations were material. 13 Although IDS argues that Mr. Barker stated he turned his work cell phone in prior to leaving for 14 vacation, Mr. Barker actually stated he no longer had his cell phone “[b]ecause they were—I was 15 going on vacation—I had this time off, and so they wanted that so that we don’t use it. We are 16 not allowed to use them for personal use.” He did not specify which vacation; he only specified 17 that he did not currently have the work phone. In fact, Mr. Barker latter clarified that he took 18 unpaid leave before his termination—he turned in the cell phone prior to the unpaid leave. 19 Assuming the facts in the light most favorable to Mr. Barker, a reasonable jury could conclude 20 that Mr. Barker was referring to the fact that he turned in his cell phone prior to his “unpaid 21 leave,” not vacation. Whether Mr. Barker intended to deceive IDS about the location of his work 22 cell phone is a question for the jury. 23 24 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 In any event, a rational trier-of-fact could find that the location of the cell phone was 2 immaterial. Contrary to IDS’s claim, Mr. Barker’s statement did not deny it the opportunity to 3 look at Mr. Barker’s phone records. And, IDS offers no evidence that Mr. Barker used the phone 4 to perpetrate a fraud or lied about the phone’s location. Indeed, IDS fails to explain the 5 relevance of the phone at all. 6 Next, IDS argues that Mr. Barker knowingly misrepresented the amount of rent paid to 7 Ms. Peters. Mr. Barker has testified that he began living with Ms. Peters after the fire. The 8 parties agree that the two did not draw up an official rental agreement. Assuming the facts in the 9 light most favorable to Mr. Barker, an IDS agent advised Mr. Barker as to a reasonable rate of 10 reimbursement for rent, and Mr. Barker listed that amount so that he could eventually begin 11 paying Ms. Peters. It appears that navigating the insurance-claim process was confusing at best 12 for Mr. Barker, and he did not understand the instructions of the IDS agent he spoke with. 13 At the time of his interview, Mr. Barker testified that he had not yet begun paying Ms. 14 Peters. Ms. Peters’ testimony reflects the same. However, Ms. Peters and Mr. Barker disagree 15 over whether Mr. Barker helped with rent by paying for groceries or helping out around the 16 house. At some point, Mr. Barker did write two $500.00 checks to Ms. Peters. Who is telling 17 the truth about how much money Mr. Barker paid, or what Mr. Barker meant by his statements, 18 is a question for the jury. 19 Finally, IDS argues that Mr. Barker knowingly misrepresented material facts about the 20 Nikon camera because IDS could not find any record of the purchase and because of the 21 circumstances surrounding Mr. Barker’s claim for reimbursement. Mr. Barker testified that he 22 purchased his Nikon camera in December of 2010 at the Puyallup Costco. According to IDS, its 23 follow up investigation revealed that Mr. Barker had never purchased a camera at Costco using 24 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 his Costco membership. Although IDS has produced evidence showing that Mr. Barker’s 2 testimony is possibly incorrect, it did not produce evidence to show that Mr. Barker knew the 3 testimony was false. Importantly, it did not produce evidence that all purchases made by a 4 customer at Costco are recorded on his or her account. Thus, the absence of a record at Costco 5 does not necessarily compel the conclusion that an item was never purchased. The evidence of 6 falsity presented by IDS is therefore insufficient to shift the burden to Mr. Barker. 7 Assuming the evidence in the light most favorable to Mr. Barker, Mr. Barker may have 8 simply made a mistake of fact about the location of his purchase. Whether Mr. Barker knew his 9 testimony about the purchase place of the camera was false is a question for the jury. 10 IDS also asserts that Mr. Barker knowingly misrepresented the purchase of the new 11 camera because at the time Mr. Barker filed for reimbursement, he had already returned the 12 camera. Both parties agree that Mr. Barker no longer had the camera in his possession at the 13 time he filed for reimbursement. But IDS argues that because he knowingly filed an incorrect 14 claim, IDS is entitled to the presumption that Mr. Barker intended to deceive. Although a bare 15 assertion that there was no intent to deceive is not enough to overcome the presumption, Mr. 16 Barker has done more than merely assert his good faith. Mr. Barker persuasively argued that he 17 purchased the Nikon camera as a replacement in order to “perfect his claim” because the policy 18 required the actual replacement of an item that cost over $500.00. In other words, IDS instructed 19 Mr. Barker to go out and purchase a replacement before it could reimburse him. But, Mr. Barker 20 may very well have decided that he would prefer the cash value of the camera given that his 21 house and possessions had burned, and his life seems to have been in general disarray. Further, 22 the policy did not require Mr. Barker to keep the replacement in his possession until he was 23 24 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 reimbursed. Whether Mr. Barker knowingly made a material misrepresentation about the 2 replacement camera is a question for the jury. 3 Thus, IDS’s Motion for Summary Judgment must be DENIED. 4 5 III. CONCLUSION For the reasons stated above, IDS’s Motion for Summary Judgment [Dkt. # 9] is 6 DENIED. 7 8 Dated this 29th day of August, 2012. 10 A 11 Ronald B. Leighton United States District Judge 9 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11
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