McClure v. State Farm Life Insurance CompanyMcClure v. State Farm Life Insurance Company
WO
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Earl L McClure, No. CV-20-01389-PHX-SMB
Plaintiff, ORDER
v.
State Farm Life Insurance Company,
Defendant.
Pеnding before the Court is Defendant State Farm Life Insurance Company’s (“State Farm’s”) Motion for Summary Judgment (the “Motion”), (Doc. 74), along with its Statement of Facts in Support of its Motion. (Doc. 75.) Plaintiff Earl McClure filed an opposition to State Farm’s Motion, (Doc. 82), and a Response to Defendant’s Statement of Facts and Statement of Additional Facts, (Doc. 83). State Farm replied. (Doc. 89.) Both parties requested oral argument, but the Court declined to hold oral argument. ( See Doc. 99.) Having reviewed the pleadings, evidence, and relevant law, the Court will now deny State Farm’s Motion in part and grant it in part.
I. BACKGROUND
Plaintiff filed this lawsuit against State Farm on behalf of himself and а proposed class of policyholders in relation to a $100,000 life insurance policy he bought from State Farm in February 1997. The Court certified Plaintiff’s proposed class on April 29, 2022. (Doc. 97.)
State Farm sold its “Universal Life” Policy—Form 94030—between 1994 and 2004 (the “Policy”). (Doc. 75 ¶ 1.) The Policy is a “Universal Life” policy, which is a permanent life insurance product providing “both a death benefit and an investment feature that allows the owner to pay premiums” into a policy account. (Doc. 83 at 6 ¶ 2.) The Policy provides a payment to the beneficiary at the time of the insured’s death if the Policy has not been terminated. (Doc. 75 ¶ 3.) The Policy includes an individual account value that accrues interest at a guaranteed rate of no less than four percent. ( Id. ¶ 4.) Under the terms of the Policy, 95% of premiums paid are allocated to the account value, and a “premium expense charge of 5% is deducted from each premium paid.” ( Id. ¶ 6.) Under the terms of the Policy, a “Monthly Deduction” is made consisting of three charges: “(1) the costs of insurance, (2) the monthly charges for any riders, and (3) the monthly expense charge.” ( ¶ 8.) The Policy states that “[t]he monthly expense charge is $5.00.” ( Id. ¶ 9.)
The Policy further states:
Monthly Cost of Insurance Rates. These rates for each policy year are based on the Insured’s age on the policy anniversary, sex, and applicable rate class. A rate class will be determined for the Initial Basic Amount and for each increase. The rates shown on page 4 are the maximum monthly cost of insurance rates for the Initial Basic Amount. Maximum monthly costs of insurance rates will be provided for each increase in the Basic Amount. We can charge rates lower than those shown. Such rates can be adjusted for projected changes in mortality but cannot exceed the maximum monthly cost of insurance rates. Such adjustments cannot be made more than once a calendar year.
( ¶ 12.) The Policy defines the term “Rate Class” as “the underwriting class of the person insured” and states “[a] rate class will be determined for the Initial Basic Amount and each increase in the Basic Amount.” ( ¶ 14.) An Insured’s “rate class” is “[t]he underwriting class of the person insured,” a reference to the underwriting process by which each Insured is evaluated for factors that might affect his or her life expectancy—e.g., “Standard Rate Class—Male Non-Tobacco.” ( Id. ¶ 32.)
Plaintiff’s Complaint contains four claims. Count I is a breach of contract claim for State Farm’s alleged overcharging related to the cost of insurance (“COI”) charge caused by unauthorized expense loads. (Doc. 1 ¶¶ 58–65.) Count II is а breach of contract claim alleging that State Farm impermissibly deducts expenses from policyholders in amounts in excess of the fixed expense charge authorized by the Policy. ( Id. ¶¶ 66–69.) Plaintiff’s Complaint also alleges a claim for a conversion (Count III), ( Id. ¶¶ 70–78), and declaratory relief (Count IV), ( Id. ¶¶ 79–82).
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A material fact is any factual issue that might affect the outcome of the case under
the governing substantive law.
Anderson v. Liberty Lobby, Inc.
,
Initially, the movant bears the burden of demonstrating to the Court the basis for the
motion and “identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” at 323. If the movant fails to carry its
initial burden, the non-movant need not produce anything.
Nissan Fire & Marine Ins. Co.
v. Fritz Cos.
, 210 F.3d 1099, 1102–03 (9th Cir. 2000). If the movant meets its initial
responsibility, the burden then shifts to the non-movant to establish the existence of a
genuine issue of material fact.
Id
. at 1103. The non-movant need not establish a material
issue of fact conclusively in its favor, but it “must do more than simply show that there is
some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith
Radio Corp.
,
III. DISCUSSION
State Farm argues that the Court should grant its Motion on all of Plaintiffs’ claims. It argues that Plaintiffs’ theory of liability misreads the Policy language. The Court will take each claim in turn.
A. Breach of Contract—Count I
State Farm argues that the COI provision in the Policy—stating that an insured’s
monthly COI rate is “based on the Insured’s age on the policy anniversary, sex, and
applicable rate class”—tells each policyholder that the assigned monthly COI rate for each
year of the Policy is held is “based on” his or her individual characteristics. (Doc. 74 at
20.) State Farm points out that a recent order in an identical lawsuit decided that the Policy
language “unambiguously permits State Farm to consider nоn-mortality factors in
calculating the ‘applicable rate class’ that State Farm later uses as one of three factors in
determining an individual policyholders’ monthly [COI] rate.” ( at 20–21 (quoting
Bally v. State Farm Life Ins. Co.
,
Plaintiff responds that “the average layman who is untrained in the law or the field
of insurance would read the Policy’s plain language as prohibiting State Farm from loading
its COI Rates with undisclosed profit and expense factors.” (Doc. 82 at 11.) Plaintiff
points to the orders in
Vogt
and
Jaunich
, which denied summary judgment in favor of State
Farm on the same claims, as additional support for his argument. (Doc. 82 at 12 (citing
Vogt v. State Farm Life Ins. Co.
, No. 2:16-CV-04170-NKL, 2018 WL 1747336, at *4
(W.D. Mo. Apr. 10, 2018),
aff’d
,
1. Contract Interpretation in Arizona
Under Arizona law, “‘[t]he interpretation of an insurance contract is a question of
law’ for the Court.”
Nat’l Fire Ins. Co. of Hartford v. James River Ins.
, 162 F. Supp. 3d
898, 903 (D. Ariz. 2016),
clarified on denial of reconsideration
, No. CV-14-00765-PHX-
JAT,
Moreover, contract provisions in Arizona are interpreted “according to their plain
and ordinary meaning.”
First American Title Ins. Co. v. Johnson Bank
,
2. Plain Wording of the Policy
The Court begins by examining the plain text of the Policy. The Monthly COI provision of the contract states: “These rates for each policy year are based on the Insured’s age on the policy anniversary, sex, and applicable rate class.” (Doc. 75 ¶ 12.) The Policy defines the term “Rаte Class” as “the underwriting class of the person insured” and states “[a] rate class will be determined for the Initial Basic Amount and each increase in the Basic Amount.” ( ¶ 14.)
State Farm argues that this language “tells each policyholder that the monthly cost of insurance rate for each year the Policy is held is ‘based on’ his or her individual characteristics.” (Doc. 74 at 20.) State Farm contends that the term “applicable rate class” confirms that the provision refers to the selection of an individual’s rate from previously established rates. ( ) This language, State Farm argues, is not a promise to policyholders about how State Farm will undergо its underlying rate-making process. ( at 22.) It is State Farm’s position that during the underlying rate-making process, they can include the additional expenses. Plaintiff argues that the COI rate provision prohibits State Farm from loading unlisted expenses into the COI rates. (Doc. 82 at 11.)
Reading the Policy as a whole, the Monthly COI provision is at best ambiguous. The “based on” language appears to permit State Farm to use only the listed factor in calculating COI rates. “[A]ge on the Policy anniversary” and “sex” are self-explanatory, but “applicable rate class” is not. While State Farm contends that the term “applicable rate class” signals to poliсyholders that individual’s rates are selected from previously established rates, nothing in the definition would signal to the average policyholder that State Farm loaded non-mortality expenses into the calculation. Indeed, State Farm could have explicitly told consumers that non-mortality factors—such as the expenses that were loaded into the calculation—were included because State Farm is the party that drafted the Policy. However, this was not done.
This Court recognizes that the
Bally
Court’s interpretation of the provision, which
is touted by State Farm, is another plausible interpretation. There, the court determined
that “[t]he Monthly COI Rates provision is not a promise to policyholders about how State
Farm will conduct its underlying rate-making process. The provision only promises
policyholders how State Farm will assign them a costs of insurance rate—by using three
factors, one of which is applicable rate class.”
Bally
,
Although this Court agrees that the Bally Court’s interpretation is plausible, it does not believe that a layperson reading the Policy would understand that State Farm was loading non-mortality-based expenses into the underwriting process, especially in light of the fact that the Policy expressly defined the Policy expenses elsewhere. ( See Doc. 75 ¶¶ 6, 9.) The court in Bally also pointed out that because the Monthly COI rate provision “points to a chart of maximum rates that itself is organized by age, sex, and already- developed rate classes, the provision can only reasonably be read to refer to the process of selecting an individual’s rates from previously established rates rather than to the process of developing rates in the first instance.” Bally , 536 F. Supp. 3d at 507 (cleaned up). However, this still would not put a layperson reading the Policy on notice that State Farm was loading non-mortality based expenses into the calculation. Furthermore, as the plaintiff in Bally pointed out, the Monthly COI provision also states that the COI rates “can be adjusted for projected changes in mortality,” suggesting that only mortality factors may be used when setting COI rates. at 508. This Court finds that language is, indeed, suggestive that State Farm would only include mortality factors when calculating the COI rates. Thus, the Court finds that the provision can plausibly be determined in more than one way. Reading the text of the Policy as a whole, the proper interpretation of the COI rate provision is, at best, ambiguous.
3. Lеgislative Goals, Social Policy, and Transaction as a Whole State Farm next argues that Plaintiff’s reading of the policy also contravenes legislative goals and social policy by “impairing State Farm’s ability to provide a financially viable insurance product.” (Doc. 74 at 22 (quoting Action Acquisitions , 187 P.3d at 1110).) State Farm contends that Plaintiff’s argument—that only “mortality expectations” can be considered in determining COI rates with no other adjustments— would not comply with actuarial and regulatory requirements. ( at 23.) Thus, State Farm argues its evidence is intended to show “not that policyholders are insurance experts, but that Plaintiff’s reading is objectively unreasonаble and would not be workable or lawful.” (Doc. 89 at 22.)
Plaintiff argues that State Farm’s reliance on the actuarial standards is misplaced because they have no bearing on how a layperson would interpret the Policy where, as here, policyholders are not furnished with or otherwise made aware of the standards or how they would apply. (Doc. 82 at 24.)
State Farms’ arguments regarding legislative goals and social policy must be
rejected. State Farm’s proffered extrinsic evidence regarding regulatory standards does
nothing to convince the Court how Plaintiff’s interpretation is unreasonable because the
plain languаge of the Policy supports Plaintiff’s reading. State Farm’s proffered evidence
regarding the legislative goals, social policy, and transaction as a whole might support State
Farm’s reading, but they cannot alter the actual text of the Policy. Plaintiff’s plausible
interpretation of the Policy language could lead a layperson to believe that State Farm was
able to cover its expenses and make a profit with its $5.00 monthly expense charge and the
5% premium expense charge. Nothing else in the Policy would lead a layperson to believe
that State Farm needed to load expenses to its COI calculation for State Farm to offer a
financially viable product or comply with actuarial and regulatory requirements. Indeed,
information about actuarial or regulatory requirements were not provided to policyholders.
Thus, policyholders would only be left to assume that State Farm could generate sufficient
margins with the expenses already listed in the Policy. State Farm’s argument that they
would be unable to earn a profit if Plaintiff’s interpretation was correct does not allow the
Court to alter the plain language of the Policy. The Court agrees that “the terms of the
insurance policy at issue are so densе, a lay person would not understand that State Farm
expected to derive a profit from the COI.”
Vogt
,
4. Cases from Other Jurisdictions
Courts have come to differing conclusions regarding the exact Policy language at
issue in this case. In
Vogt
, the court concluded that, “[g]iven the COI language in the Vogt
policy and its context in the policy as a whole, the Court believes that no reasonable lay
person would expect that State Farm was permitted to use any factor it wanted to calculate
the cost of insurance.” 2018 WL 1747336, at *4. Thus, it determined there was, at
minimum, an ambiguity under Missouri law that should be construed against the insurance
company. Accordingly, the court denied State Farm’s Motion for Summary Judgment.
at *9. Likewise, in affirming the order, the Eighth Circuit concluded that “the phrase
‘based on’ in the COI provision is at least ambiguous and thus must be construed against
State Farm.”
Vogt v. State Farm Life Ins. Co.
,
The differing interpretations of the Policy language at issue further bolster the
Court’s conclusion that the COI language in the Policy is ambiguous. “Arizona follows
the principle of construction that, where various jurisdictions reach different conclusions
as to the meaning, intent, and effect of the language of an insurance contract, a strong
indication of ambiguity is established.”
City of Glendale v. Nat’l Union Fire Ins. Co. of
Pittsburgh, PA
, No. CV-12-380-PHX-BSB,
B. Breach of Contract—Count II State Farm also argues that it is entitled to summary judgment on Plaintiff’s Count II breach of contract claim. (Doc. 74 at 24.) Count II alleges that State Farm impermissibly deducts expenses from policyholders in amounts in excess of the fixed expense charges authorized by the Policy. (Doc. 1 ¶¶ 66–69.) Plaintiff alleges that, “[b]y loading Monthly [COI] Rates with undisclosed and unauthorized expenses, Defendant impermissibly deducts expenses from the Account Values of Plaintiff and the Class in amounts in excess of the fixed expense charges expressly authorized by the Policies.” ( ¶ 67.) Plaintiff’s limits its Count II breach of contract claim to solely the $5.00 monthly expense charge. ( See Doc. 82 at 26 n. 12.)
The Policy states that “[t]he monthly expense charge is $5.00.” (Doc. 75 ¶ 9.) State Farm argues that this language cannot be read to limit how the COI charges are developed during the underlying pricing phase of the product. (Doc. 74 at 25.) State Farm also contends that, reading the Policy in context, the monthly expense provision does not limit the expenses it can charge. ( Id. at 26.) It points to language on page 9 of the Policy in the “Monthly Deduction” Section, which states that the monthly deduction will include the “Monthly Expense Charge” ($5.00) and the “Monthly Cost of Insurance.” (Doc. 1-2 at 2.) Thus, State Farm contends that the provision setting the Monthly Expense Charge at $5.00 “simply identifies the amount ($5.00) of the monthly expense charge disclosed on page 9” of the Policy. (Doc. 89 at 16–17.)
Plaintiff argues that State Farm’s arguments regarding his Count II claim for breach of contract has been rejected by every court to analyze the issue, (Doc. 82 at 26), and that State Farm’s interpretation of the Policy is contrary to the Policy’s plain language. ( at 28.)
The three courts that have examined State Farm’s arguments on Plaintiff’s Count II
breach of contract claim have rejected State Farm’s attemрts at summary judgment. In
Vogt
, the court concluded that State Farm breached the Policy by collecting the $5.00 per
month monthly expense charge in addition to “unspecified expenses that were factored into
the COI rates.” Order on Summary Judgment,
Vogt v. State Farm Life Ins. Co.
, No. 16-
cv-4170-NKL (W.D. Mo. June 2, 2018), ECF No. 335. In
Bally
, the court noted that
“[b]ecause State Farm called it a ‘monthly expense charge,’ policyholders could reasonably
understand it to cover all monthly expenses.”
Bally
,
Turning to the Policy’s plain language, the Court determines that the monthly expense charge provision is, at best, ambiguous. There is, undisputedly, no express promise to limit the monthly expense charge to $5.00 in the Policy. Furthermore, the provisiоn does not explain what the monthly expense charge is meant to cover. The Policy states that “[t]he monthly expense charge is $5.00.” (Doc. 1 ¶ 9.) The plain meaning of this provision indicates that the monthly expense charge for the Policy will be $5.00, no more, no less. It does not clearly permit State Farm to deduct more expenses each month as State Farm contends. Nonetheless, it is undisputed that State Farm also deducted undisclosed expenses through the COI charge. The language of the Policy does not explain the purpose of the “monthly expense charge,” and the purpose for the charge is not clear from the context of the Policy. The Court agrees with the reasoning in Bally that:
Had Sate Farm called it something else—something generic but unrelated to expenses, like a $5.00 “monthly fee,” or something relating to expenses but limited in scope, like a $5.00 “monthly stamp expense charge”—State Farm would be on firmer footing. Because State Farm called it a “monthly expense charge,” policyholders could reasonably understand it to cover all monthly expenses. Words matter, and State Farm is the party that chose the words.
Bally , 536 F. Supp. 3d at 509. Accordingly, the Court finds that policyholders could reasonably read this language as including all monthly еxpenses for the Policy.
State Farm’s argument that the monthly expense charge provision merely defines the term for the breakdown of deductions in the “Monthly Deduction” section, while plausible, is not the most likely meaning of the Policy language. The monthly expense charge simply states that it is $5.00, and there is no other language in the Policy to alert policyholders that there were expenses included elsewhere in the Policy besides the five percent premium expense charge. Thus, while plausible, the Court finds that a layperson would most likely read this language to mean that the $5.00 monthly expense charge encompassеd all the expenses charged by the Policy besides the five percent premium expense charge, which was expressly listed.
State Farm attempts to differentiate the result here from that in Vogt , Bally , and Jaunich by pointing out that Arizona courts are “reluctant” to read implied promises into contracts. (Doc. 74 at 28–29 (citing Farnam Companies, Inc. v. Stabar Enterprises, Inc. , No. CV 03-503-PHX-NVW, 2005 WL 3369473, at *9 *D. Ariz. Dec. 12, 2005).) However, the Court need not read an implied promise into the Policy in order to find that the language regarding the monthly expense charge is, at best, ambiguous. In fact, the monthly expense provision could plausibly be read as an express promise. Thus, the Court must reject this argument.
Likewise, the Court is unpersuaded by Statе Farm’s argument that Plaintiff cannot establish breach or damages under his reading of the Policy because his expert’s damages model lumps all expenses together and “does not establish that State Farm recouped fixed expenses through its cost of insurance charge.” (Doc. 74 at 29–30.) This argument is irrelevant to whether State Farm breached the plain language of the Policy. Under Plaintiff’s plausible reading of the Policy, if State Farm charged more than $5.00 for expenses, State Farm breached the Policy, and Plaintiff can show damages through Witt’s model. State Farm’s Motion is denied as to Count II.
C. Conversion—Count III State Farm contends that it is entitled to summary judgment on Plaintiff’s conversion claim, arguing that: (1) Plaintiff cannot recast a contract claim as a conversion claim, and (2) Plaintiff has not shown conversion of a specific chattel. (Doc. 74 at 30–31.)
In Arizona, conversion is defined as “an act of wrongful dominion or control over
personal property in denial of or inconsistent with the rights of another.”
Case Corp. v.
Gehrke
,
Plaintiff’s conversion claim is barred by the economic loss doctrine. In Arizona, “a
contracting party is
limited wholly
to its contractual remedies for purely economic loss
related to the subject of the parties’ contract.”
Cook v. Orkin Exterminating Co.
, 259 P.3d
149, 153 n. 6 (Ariz. Ct. App. 2011) (citing
Flagstaff Affordable Hous. Ltd. P’ship v. Design
All., Inc.
,
Here, Plaintiff has alleged no tortious conduct apart from a breach of the Policy language. Essentially, Plaintiff’s conversion claim is based upon exactly the same conduct as his breach of contract claims in Counts I and II: the alleged unauthorized loading of non- mortality expenses into the COI calculation. ( See Doc. 1 ¶ 72.) Plaintiff proffers no independent conduct constituting a tort for which he suffered a loss. Accordingly, Plaintiff is limited to his contractual remedies. Even if this were not the case, Plaintiff’s cоnversion claim fails because Plaintiff has failed to show that the money allegedly wrongfully converted by State Farm could not be satisfied by money generally. See Gerhke , 91 P.3d at 365. Therefore, the Court will grant State Farm’s Motion for Plaintiff’s conversion claim.
State Farm additionally argues that because Plaintiff’s conversion claim fails, his punitive damages claim likewise fails. (Doc. 74 at 31 n. 6.) State Farm is correct. Punitive damages cannot be awarded for breach of contract. Cont’l Nat. Bank v. Evans , 489 P.2d 15, 19 (Ariz. 1971). Accordingly, because Plaintiff’s conversion claim fails, he cannot recover punitive damages.
D. Declaratory Relief—Count IV
State Farm argues that Plaintiff’s claim for declaratory relief (Count IV) must fail
because Plaintiff’s breach of contract claims fail (Counts I and II). (Doc. 74 at 31.)
Moreover, State Farm contends that declaratory relief is improper because a plaintiff
seeking injunctive relief must show a “very significant possibility of future harm,” (quoting
Mont. Shooting Sports Ass’n v. Holder
,
Plaintiff argues that State Farm’s argument—that declaratory relief is duplicative of his breach of contract claims and serves no useful purpose—has been rejected before and should be rejected here. (Doc. 82 at 31.) He further argues that the declaratory judgment will serve a useful purpose in clarifying the rights, duties, and obligations of the parties. ( )
A plaintiff must demonstrate standing for each form of relief sought.
Friends of the
Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.
,
Here, Plaintiff has not shown that he has standing to pursue his declaratory relief claim. It is undisputed that Plaintiff canceled his Policy in 1999. ( See Doc. 75 ¶ 42; Doc. 83 ¶ 42.) Thus, while Plaintiff has standing to pursue claims for past injuries, he has not demonstrated an ongoing injury that would entitle him to declaratory relief. Accordingly, the Court will grant State Farm’s Motion for Summary Judgment on Count IV.
E. Statute of Limitations Lastly, State Farm contends that Plaintiff’s claims are time barred because he acquired his policy in 1997, and deductions from his account began almost immediately. (Doc. 74 at 32.) Because Plaintiff did not bring this lawsuit until 2020, State Farm argues that his claims are time-barred. ( ) State Farm argues that the discovery rule does not apply because Plaintiff was a licensed insurance agent in Arizona who had sold hundreds of policies to Arizona consumers and because he could havе learned the basis of COI charges “simply by asking.” ( at 32–33.) Moreover, State Farm argues that the COI rates “were fully disclosed to Arizona regulators and to policyholders.” ( at 32.)
In Arizona, the limitations period for a breach of contract claim is six years. Ariz.
Rev. Stat. Ann. § 12-548(A)(1). “[A] cause of action accrues, and the statute of limitations
commences, when one party is able to sue another.”
Gust, Rosenfeld & Henderson v.
Prudential Ins. Co. of Am.
,
Under the discovery rule, “a cause of action does not accrue until the plaintiff knows
or with reasonable diligence should know the facts underlying the cause.”
Doe v. Roe
, 955
P.2d 951, 960 (Ariz. 1998). In Arizona, the discovery rule can apply to a breach of contract
claim.
See Gust
,
Here, State Farm has shown that the Complaint falls оutside the statute of limitations. Thus, Plaintiff has the burden of providing evidence that the statute of limitations should be tolled by the application of the discovery rule to pass summary judgment. Plaintiff has carried that burden. State Farm did not disclose its mortality assumptions or its actual COI Rates to policyholders. (Doc. 39-6 at 8; Doc. 39-4; Doc. 1- 1; Doc. 1-2.) The rates were not disclosed in the Policy or in the annual statements. ( See Doc. 1-1; Doc. 1-2; Doc. 39-4.) State Farm proffered no other documents showing that these rates were disclosed to policyholders. ( See Doc. 39-10 at 23.) There is no dispute that State Farm does not provide its underlying pricing mortality rates to policyholders. (Doc. 82 at 31.) Thus, there is at least a dispute of fact as to whether Plaintiff could have discovered State Farm’s alleged loading of expenses into the COI calculation when his policy was active. There is also a question of fact as to when Plaintiff’s causes of action accrued. Accordingly, the Court cannot rule, as a matter of law, that this action is barred by the statute of limitations.
IV. CONCLUSION
Accordingly,
IT IS ORDERED granting in part and denying State Farm’s Motion for Summary Judgment in accordance with this Order. (Doc. 74.)
Dated this 23rd day of June, 2022.
Notes
[1] State Farm’s argument that Plaintiff cannot show breach or damages for its Count I breach 27 of contract claim is rejected. State Farm bases this argument on the contention that 28 Plaintiff’s expert, Scott Witt’s, report is inadmissible. (Doc. 74 at 24.) However, the Court previously rejected this argument. (Doc. 97 at 15–21.)