Integon Preferred Insurance Company v. Wilcox et al, No. 2:2021cv01501 - Document 168 (W.D. Wash. 2023)
Court Description: ORDER granting Defendant's 167 Motion to Enter Findings in Support of Rule 54(b) Certification. The stay entered by this Court, Dkt. 166 , is LIFTED for purposes of consideration of the Motion to Enter Findings in Support of Order Granting Mo tion for Rule 54(b) Certification, Dkt. No. 167 , and is REINSTATED, without further action of this Court, upon entry of this Order. The Clerk of the Court is directed to enter judgment forthwith as to the three orders identified in Dkt. 166 . Signed by Judge Barbara J. Rothstein. (SB)
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Integon Preferred Insurance Company v. Wilcox et al Doc. 168 Case 2:21-cv-01501-BJR Document 168 Filed 09/01/23 Page 1 of 6 HONORABLE BARBARA J. ROTHSTEIN 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 INTEGON PREFERRED INSURANCE COMPANY, a foreign corporation, NO. 2:21-cv-01501-BJR 10 Plaintiff, 11 v. 12 13 DANIEL WILCOX and ELIZABETH WILCOX, Washington residents; and ERIC HOFF; a Washington resident, ORDER GRANTING DEFENDANT/COUNTERCLAIMANTS/THIRD-PARTY DEFENDANTS WILCOXES’ MOTION TO ENTER FINDINGS IN SUPPORT OF RULE 54(b) CERTIFICATION 14 Defendants. CLERK’S ACTION REQUIRED 15 16 DANIEL WILCOX and ELIZABETH WILCOX, Washington residents, 17 Counterclaimants, 18 v. 19 20 21 INTEGON PREFERRED INSURANCE COMPANY, a foreign corporation, Counter-defendant. 22 23 24 ORDER GRANTING WILCOXES’ MOTION TO ENTER FINDINGS IN SUPPORT OF RULE 54(b) CERTIFICATION - 1 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 Dockets.Justia.com Case 2:21-cv-01501-BJR Document 168 Filed 09/01/23 Page 2 of 6 1 2 DANIEL WILCOX and ELIZABETH WILCOX, Washington residents, 3 Third-Party Plaintiffs, 4 v. 5 6 7 8 ROBERT W. WARREN, ATTORNEY AT LAW, PLLC, a Washington professional limited liability company dba WRIXTON LAW OFFICE; and SMITH FREED EBERHARD, P.C., a foreign professional services corporation, Third-Party Defendants. 9 10 Currently before the Court is Defendants, Counterclaimants, and Third-Party Plaintiffs 11 Daniel and Elizabeth Wilcoxes’ (“the Wilcoxes”) Motion to Enter Findings in Support of the Order 12 Granting the Motion for Rule 54(b) Certification [Dkt. No. 167] (“the motion”). Having reviewed 13 the motion, the record of the case, and the relevant legal authority, and no opposition to the motion 14 being filed, the Court hereby rules as follows: 15 In support of its Order Granting Joint Motion to Stay Proceedings, Dkt. 166, the Court 16 FINDS: 17 1. With respect to the Orders contained in (1) Order Granting Integon’s Motion for Partial 18 Summary Judgment on the Wilcoxes’ Extra-Contractual Claims (8/3/2023), Dkt. 159; (2) Order 19 Granting Integon’s Motion for Partial Summary Judgment, (7/6/2023), Dkt. 149; and (3) Order 20 Regarding the Wilcoxes’ Motion for Partial Summary Judgment Against Smith Freed, Smith 21 Freed’s Motion for Summary Judgment Against the Wilcoxes, and Smith Freed’s Motion to 22 Exclude the Wilcoxes’ Expert William Fuld (7/17/2023), Dkt. 153 (“dispositive orders”): The 23 dispositive orders would be final in the sense that each such order is an ultimate disposition of an 24 ORDER GRANTING WILCOXES’ MOTION TO ENTER FINDINGS IN SUPPORT OF RULE 54(b) CERTIFICATION - 2 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 Case 2:21-cv-01501-BJR Document 168 Filed 09/01/23 Page 3 of 6 1 individual claim entered in the course of a multiple claims action, were it not for the presence of 2 the claims and parties involved in the unadjudicated remaining third-party claims asserted by 3 Wilcoxes against Warren; and there is no just reason for delay to appeal the dispositive orders. 4 5 2. The reasons for Rule 54(b) certification granted in the Order Granting Joint Motion to Stay Proceedings, Dkt. 166, include: 6 a. The Wilcoxes seek to appeal the dispositive orders. Bases for appeal that 7 Wilcoxes intend to assert may include, but not be limited to: (1) that this Court engaged in 8 impermissible factfinding as a basis to dismiss the claims against Integon; for example, in 9 interpreting Elizabeth Wilcox’s use of the word “lawsuit” when speaking to Integon, (2) this Court 10 erred in construing the meaning and scope of the “tender” requirement; (3) this Court erred in 11 ignoring or misconstruing the insurance contract language that required Integon to defend the 12 “claim” against Wilcox; not merely the “lawsuit”; and (4) this Court erred in excluding opinions 13 of the Wilcoxes’ insurance claims handling expert. 14 b. No party opposes entry of this order. 15 c. The parties with live claims remaining, Daniel and Elizabeth Wilcox and Robert 16 17 18 W. Warren, Attorney at Law, PLLC, agree with this order. d. No party will be prejudiced by an appeal of the dispositive orders prior to trial of the remaining claims in this action. 19 e. Although the claims that are dismissed by the dispositive orders and the 20 unadjudicated remaining claims arise from some common facts, the legal theories asserted against 21 Integon and Warren differ. Here, the Wilcoxes’ third-party claims against Integon are premised on 22 breach of contract, common law insurance bad faith, the Insurance Fair Conduct Act, and the 23 Washington Consumer Protection Act. Dkt. 22, pp. 22-23. These are related to the circumstances 24 ORDER GRANTING WILCOXES’ MOTION TO ENTER FINDINGS IN SUPPORT OF RULE 54(b) CERTIFICATION - 3 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 Case 2:21-cv-01501-BJR Document 168 Filed 09/01/23 Page 4 of 6 1 that gave rise to the allegations of legal malpractice but are sufficiently distinct from legal 2 malpractice claims to merit appellate review under these circumstances; particularly given the 3 parties’ competing allegations of fault and causation. 4 f. Although claims that are the subject of the dispositive orders and the 5 unadjudicated remaining claims arise from some common facts and involve allegations of fault 6 and causation among the parties, see Dkt. 22, Dkt. 33 at pp. 12-13, Dkt. 30 at p. 13 & Dkt. 32 at 7 p. 9, such that all claims would best be tried together, this Court has no subject matter jurisdiction 8 over the unadjudicated remaining claims except as supplemental to the claims dismissed in the 9 dispositive orders, 28 U.S.C. § 1367. 10 g. If some or all of the dispositive orders are reversed, trial of the unadjudicated 11 claims will be significantly different than otherwise and could significantly affect the results of 12 trial of the unadjudicated claims. The parties relieved of claims by the dispositive orders, and the 13 parties to the unadjudicated remaining claims, have various claims and defenses based on the 14 conduct of other parties. At least some of those claims would need to be adjudicated if any of the 15 dispositive orders is reversed on appeal and could cause the outcome at trial to differ from that of 16 a trial solely on the unadjudicated remaining claims. Furthermore, it may be necessary for this 17 Court to apportion liability in accordance with Tegman v. Accident & Medical Investigations, 150 18 Wn.2d 102 (2003) and its progeny. 19 h. If this order were not entered, appeal of any or all dispositive motions were to 20 occur after trial of the remaining claims in this action, and the appeal were to reverse any of the 21 dispositive orders, then a significant risk exists that such a trial would become a waste of judicial 22 resources and impose an undue burden on the parties to that trial, and that the two trials would 23 24 ORDER GRANTING WILCOXES’ MOTION TO ENTER FINDINGS IN SUPPORT OF RULE 54(b) CERTIFICATION - 4 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 Case 2:21-cv-01501-BJR Document 168 Filed 09/01/23 Page 5 of 6 1 produce inconsistent results; and would thereby make the course of proceedings harsh and unjust 2 for the litigants involved in the first trial of the presently unadjudicated remaining claims. 3 4 i. The outcome of a trial on the remaining claims in this action would not likely influence appellate consideration of the dispositive orders. 5 j. The costs and risks of multiplying the number of proceedings and of 6 overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early 7 and separate judgment as to the claims and parties involved in the dispositive orders. k. The following order is in the best interests of efficient judicial administration. 8 9 The Court further FINDS that good cause exists to temporarily lift the stay imposed by this 10 Court, Dkt. 166, so that the Court may consider and decide the above-referenced motion, and that 11 to reimpose that stay upon entry of this Order is in the interests of justice. 12 ACCORDINGLY, IT IS ORDERED that: 13 14 A. The Motion to Enter Findings in Support of Order Granting Motion for Rule 54(b) 15 16 Certification, Dkt. No. 167, is GRANTED; 17 B. The stay entered by this Court, Dkt. 166, is LIFTED for purposes of consideration of 18 the Motion to Enter Findings in Support of Order Granting Motion for Rule 54(b) Certification, 19 Dkt. No. 167, and is REINSTATED, without further action of this Court, upon entry of this Order. 20 // 21 // 22 // 23 // 24 ORDER GRANTING WILCOXES’ MOTION TO ENTER FINDINGS IN SUPPORT OF RULE 54(b) CERTIFICATION - 5 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 Case 2:21-cv-01501-BJR Document 168 Filed 09/01/23 Page 6 of 6 1 The Clerk of the Court is directed to enter judgment forthwith as to the three orders 2 identified in Dkt. 166. 3 DATED this 1st day of September, 2023. 4 A 5 Barbara Jacobs Rothstein U.S. District Court Judge 6 7 8 9 10 11 12 13 14 15 Presented by: STRITMATTER KESSLER KOEHLER MOORE s/ Brad J. Moore BRAD J. MOORE, WSBA #21802 s/ Daniel R. Laurence DANIEL R. LAURENCE, WSBA #19697 s/ Shannon M. Kilpatrick SHANNON M. KILPATRICK, WSBA #41495 17 brad@stritmatter.com dan@stritmatter.com shannon@stritmatter.com 18 Attorneys for Defendants/Counterclaimants/Third-Party Plaintiffs Wilcox 16 19 20 21 22 23 24 ORDER GRANTING WILCOXES’ MOTION TO ENTER FINDINGS IN SUPPORT OF RULE 54(b) CERTIFICATION - 6 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
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