In October of 2006, National Athletic Sportswear Company (“NAS”) filed a complaint against Westfield Insurance Company in Indiana state court, alleging that Westfield breached an insurance contract by refusing to pay NAS’s losses resulting from a burglary of its premises. Additionally, NAS complained that Westfield’s efforts to settle the claim were in bad faith. Westfield removed the case to federal court, and filed an answer, as well as a counterclaim seeking a declaratory judgment that NAS failed to comply with the terms of the Examination Under Oath (“EUO”) provision in the policy, because NAS refused to submit to Westfield’s request for a second EUO. Subsequently, Westfield moved for summary judgment. The district court granted the motion, con-eluding that it was not unreasonable for Westfield to require a second EUO, therefore NAS breached the contract by failing to comply with the terms and conditions of the policy, and that Westfield did not breach its good faith duty.
NAS objеcts to the district court’s findings and further argues that material issues of fact existed as to both claims. 1 Because the district court issued a thorough and well-reasoned opinion and order that does not contain any error, we adopt the district court’s opinion and order dated November 5, 2007, as our own and Affirm the judgment of the lower court on all counts. A copy of the district court’s November 5, 2007 opinion and order is attached and incorporated herein.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION
NATIONAL ATHLETIC SPORTSWEAR, INC., Plaintiff, v. WESTFIELD INSURANCE COMPANY, Defendant.
CAUSE NO.: l:06-CV-354-TS
OPINION AND ORDER
This insurance contract action is before the Court on Defendant’s Motion for Summary Judgment (DE 14). The heart of this case, and the key to resolution of the parties’ accusations of breach of contract, is the legal effect of a provision in the insurance contract requiring the insured to participate in an Examination Under Oath (“EUO”) at the request of the insurance
BACKGROUND
On October 4, 2006, National Athletic Sportswear, Inc., the Plaintiff in this action, filed a lawsuit against Westfield Insurance Company, the Defendant in this action, in Allen County Superior Court. The Complaint has two counts. Count One is for breach of contract and accuses the Defendant of breaching its contractual obligation by not paying the Plaintiffs claimed losses, amounting to $386,299.38. Count Two is for bad faith claim settlement practices, or what Indiana law would call the breach of the duty of good faith. The allegations underlying this claim are that the Defendant: failed to acknowledge the Plaintiffs communications and act promptly on them; failed to affirm or deny coverage of the claims in a reasonable amount of time after the Plaintiff submitted proof of loss statements; did not attemрt in good faith to effectuate prompt, fair, and equitable settlement of the Plaintiffs claim; compelled the Plaintiff to file suit to recover money due under the insurance policy by offering substantially less than the amount the Plaintiff is entitled to; required an employee of the Plaintiff to submit to an EUO for eight hours and then requested more time to continue the EUO; ignored information from its own expert about the value of the Plaintiffs claim; and, harassed the Plaintiffs employees with numerous requests for documents and statements under oath and then, after the Plaintiff complied, failed to acknowledge or respond to the Plaintiffs claim in a prompt manner. This claim of bad faith seeks punitive damages.
The Defendant removed the case to this Court on November 1, 2006, under 28 U.S.C. § 1441(a). On January 10, 2007, the Defendant filed an Answer to the Complaint (DE 12) raising several defenses. On the same date, the Defendant filed a Counterclaim (DE 12) alleging the Plaintiff failed to comply with terms of the contract, including the EUO provision. The Counterclaim sought declaratory judgment that the Plaintiffs recovery under the contract was limited or barred. On February 10, 2007, the Defendant filed a Motion for Summary Judgment (DE 14) on the Plaintiffs two claims. The Motion has two main arguments: first, that the Defendant was relieved of its duty to pay the Plaintiff because the Plaintiff violated the insurance contract by not submitting to the second EUO, or the rest of the EUO; and second, that the Defendant did not act in bad faith as a matter of law because it merely exercised its contractual rights under the policy. The Motion did not seek summary judgment on the Defendant’s Counterclaim. The Plaintiff filed a Response on March 15, 2007 (DE 17). The Defendant filed a Reply (DE 21) on April 2, 2007.
JURISDICTION AND LEGAL STANDARD
The Court has subject matter jurisdiction over this diversity action under 28 U.S.C. § 1332(a), (c)(1). 1
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party.
NLFC, Inc. v. Devcom Mid-Am., Inc.,
In deciding to what insurance coverage, if any, the Plaintiff is entitled, the Court must apply Indiana law for contract interpretation.
Allstate Ins. Co. v. Keca,
MATERIAL FACTS
Construing all facts in a light most favorable to the Plaintiff, and drawing all legitimate inferences in favor of the Plaintiff, the following facts are assumed true for the purposes of summary judgment.
A. Chronology of Events
The Plaintiff, National Athletic Sportswear, Inc., (“NAS”), is an Indiana corporation with its principal place of business in Allen County. It is engaged in the business of making designs and embroidering them onto apparel for universities, colleges, stores, and manufacturers of clothing. On August 11 or 12, 2005, someone broke into the Plaintiffs premises through the rear door and stole computer equipment and other items, including a computerized embroidery designs library.
The Plaintiff had an insurance contract, effective from February 19, 2005, to February 19, 2006, with the Defendant, West-field Insurance Company (“Westfield”), an Ohio corporation that is doing business in Indiana and has its principal place of business in Ohio. ■ The Defendant provided $777,500 in coverage for losses to the Plaintiffs “Business Personal Property” under the contract’s “Businessowners Special Property Coverage Form.” The insurance also provided coverage for other areas, such as building damage and business liability. Importantly for this case, the insurance contract also contained a provision that required the insured to submit to an examination under oath (“EUO”) by the Defendant regarding a claim. The provision is on page 14 under E. Property Loss Conditions, 3. Duties In The Event of Loss or Damage, b. It states:
We may examine any insured under oath, while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured’s books and records.
(DE 16-3, 3; Def. Desig. of Mat. Evid., Ex A-2, 3.) Under E.4., Legal Action Against Us, the contract states: “No one may bring a legal action against us under this insurance unless: a. There has been full compliance with all of the terms of this insurance!)]” (DE 16-3, 4; Def. Desig. of Mat. Evid., Ex. A-2, 4.)
The Plaintiff reported the theft and loss of property to Defendant on a timely basis, filing several “sworn statements in proof of loss.” A statement of -loss from the Plaintiff, dated September 12, 2005, stated the Plaintiffs loss was $128,698.92. The most expensive item submitted for loss was the “Embroidery Designs library,” valued by the Plaintiff at $95,970.00 on an attachment to the statement of loss. A letter from the Defendant dated September- 27, 2005, stated that it was paying the Plaintiff $28,916.43 for business personal property. The letter stated that the Defendant had already paid $69,500.00 for business personal property loss. The letter also noted there was disagreement between the Plaintiff and Defendant over the value “of the design cost,” presumably a reference to the embroidery design library. The Defendant’s letter requested that the Plaintiff provide more information and documents about the library and for a claim for loss of business income. Another of the Plaintiffs statements of proof of loss, dated October 24, 2005, listed its loss at $223,258.90, with the figure for the embroidery design library at $200,166.75.
On April 21, 2006, the Defendant, through its attorney Bruce P. Clark, conducted an EUO of Todd W. Snyder, owner and president of Plaintiff NAS. Snyder was represented by attorney Michael D. Harmeyer at the EUO. The EUO lasted about seven or eight hours that day, and its transcript runs to 361 lined pages, or 68 regular pages. The discussion covered documents already provided by the Plaintiff to the Defendаnt and information concerning the value of stolen items, including the embroidery design library. The last recorded comment was by Clark: “All right. I think that’s enough for today. Thanks.” (DE 16-12, 23; Def. Desig. Of Mat. Evid. Ex. E-4, 361:12-13.)
The Defendant did not immediately request more information or documents of the Plaintiff after the EUO. On May 3, 2006, Harmeyer, counsel for the Plaintiff, sent a letter to the Defendant’s counsel, Clark, demanding an appraisal of the loss the Plaintiff was claiming. Clark responded with a letter, dated May 30, 2006, that listed documents “which were requested of Mr. Snyder during the EUO[.]” (DE 18-2, 27; PI. Desig. of Evid. in Opp. to Def. Mot. for Summ. J., Ex. 8, 1.) Most of the requested documents related to the embroidery design library. The letter also stated that before the Defendant would engage in the appraisal process, it needed to finish the EUO and obtain the requested documents.
During the summer months of 2006, relations between the Plaintiff and the Defendant began to break down. According to Snyder, in July and August 2006, the Plaintiff provided more than 1,000 pages of documents to thе Defendant. (DE 18-2, 5; PI. Desig. of Evid. in Opp. to Def. Mot. for Summ. J., Snyder Aff., 5.) But a July 10, 2006, letter from Clark to Harmeyer indicated the Defendant did not believe it was receiving the information it sought. The letter inquired about the documents requested in Clark’s May 30, 2006, letter “as well as the continuation of Todd Snyder’s Examination Under Oath (EUO).” (DE 16-8, 1; Def. Desig. Of Mat. Evid., Ex. D., 1.) It went on to state that the EUO would be scheduled after the requested documents were received, and that the appraisal process, requested by the Plaintiff, could not begin until the EUO was finished.
At some point in this period, the Plaintiff retained new counsel, Mark W. Bae-verstad, who addressed the standing request for a second EUO in a letter dated August 31, 2006. Baeverstad stated in his letter that Snyder (or the Plaintiff) had submitted 3,500 pages' of documents to the Defendant, spent eight hours undergoing the EUO, and spent eighty hours of his time handling the Defendant’s requests. The letter also stated that a revised proof of loss statement for $516,864.38 in business property loss, along with a loss of incomе claim for $130,973.78, was being submitted. The letter further stated that the Plaintiff was willing to accept a pay
B. Agreement Regarding a Planned Second EUO
Of material relevance to this case, the parties do not dispute that the mutual understanding upon ending the EUO on April 21, 2006, was that another EUO would be scheduled with Snyder after additional documents were requested and provided. Snyder testified in an affidavit: “During the course of the EUO, Mr. Clark requested additional documents from NAS. Either during or after the EUO, he stated that he would promptly send a letter to NAS following the EUO itemizing the additional documents that he would like to review.”. (DE 18-2, 4; Pl. Desig. of Evid. in Opp. To Def. Mot. for Summ. J., Snyder Aff., 4, ¶24.) Snyder also testified that: “At the conclusion of the EUO, I recall that Mr. Clark stated that he was completed with, his questioning of me other than any additional questions that he may have after reviewing the -additional documentation that he wоuld be requesting.” (DE 18-2, 4; Pl. Desig. of Evid. in Opp. To Def. Mot. for Summ. J., Snyder Aff., 4, ¶ 25.) Snyder also acknowledged that the Defendant’s attorney, Clark, “requested that I appear for a second EUO.” (DE 18-2, 4; Pl. Desig. of Evid. in Opp. To Def. Mot. for Summ. J., Snyder Aff., 5, ¶ 30.) The Plaintiffs attorney at the time, Harmeyer, testified in an affidavit that Clark needed to review more documents and then would have more questions for Snyder:
There were a number of documents and categories of documents which Mr. Clark had identified throughout the several hours which would need, to still be produced which he had not yet obtained. And at the time of conclusion, he expressed a need to essentially pickup where he left off once the additional records were produced.
(DE 16-13, 4; Def. Desig. of Mat. Evid., Ex. F, Harmeyer Dep., 3:2-8.) Harmeyer further testified that Clark “did express almost in an apologetic tone that we would need to come back once the additional records were produced.... [H]e led me to thе impression that he wanted to first see the records, which would then tell him what follow-up, if any, needed to occur.” (DE 16-13, 5; Def. Desig. of Mat. Evid., Ex. F, Harmeyer Dep., 4:13-21.) Additionally, Harmeyer testified: “The whole point of rescheduling was to explore, to examine; the new records which would be produced forthwith.” (DE 16-13, 6; Def.
Even though both parties agreed on holding a second EUO, the Plaintiff later objected to it and refused to partiсipate. The Plaintiffs owner, Snyder, disputed that he refused to undergo another EUO. “Further, I have never refused to appear for a second EUO.” (DE 18-2, 7; Pl. De-sig. of Evid. in Opp. to Def. Mot. for Summ. J., Snyder Aff., 7.) However, the next sentence in his affidavit makes clear that his participation in the second EUO was indeed conditional, and that he would not agree to the EUO unless those conditions were met: “I only request that reasonable limitations on the scope and length of the second EUO be agreed upon by the parties or ordered by the Court.” (DE 18-2, 7; Pl. Desig. of Evid. in Opp. to Def. Mot. for Summ. J., Snyder Aff., 7.) Baever-stad’s August 31, 2006, letter, quoted supra, also made clear that Snyder would not undergo the second EUO unless the Defendant met certain conditions. Snyder stated in his affidavit that after thirty days went by with no response to the Plaintiffs requested limits on the EUO, “I instructed Mr. Baeverstad to initiate this litigation.” (DE 18-2, 6; Pl. Desig. of Evid. in Opp. to Def. Mot. for Summ. J., Snyder Aff., 6.)
ANALYSIS
The crux of this case is which party, if any, is in breach of the insurance contract. The Plaintiff in the complaint accuses the Defendant of breaching the contract by, inter alia, not paying the Plaintiffs insurance claim for losses resulting from the break-in. The Defendant in its counterclaim accuses the Plaintiff of materially breaching the contract by failing to comply with terms and conditions in the policy, mainly and most importantly the EUO requirement. Each party states that the other party’s breach of contract entitles it to judgment from the Court. The Plaintiffs claim of bad faith dealing against the Defendant is a separate but related issue and will be examined below. This bad faith claim includes allegations of failing to acknowledge and act promptly upon communications from the Plaintiff; failing to either affirm or deny coverage of claims on a timely basis; “not attempting in good faith to effectuate prompt, fair[,] and equitable settlement” of the Plaintiffs claim; “compelling” the Plaintiff to file suit to recover what it is owed under the policy; requiring Snyder to undergo the EUO for eight hours and then requesting another EUO; ignoring information from the Defendant’s own expert about the Plaintiffs claim; and “harassing” the Plaintiffs employees with requests for documents and statements under oath. (Pl. Compl, 3; DE 1, 3).
A. Breach of Contract 1. Legal Standard
The breach of contract issue here, a dispute over contract requirements, particularly EUOs, is similar to what occurred in the recent Indiana Supreme Court case,
Morris v. Economy Fire and Casualty Co.;
The court in Morris found that the plaintiffs-insureds “breached the contract as a matter of law when they refused to provide an examination under oath” to the defendant insurance company. Id. at 666-67. The court discounted that the plaintiffs would have submitted tó an EUO if they had been provided copies of previous statements to the insurance company. Participating in the EUO and submitting requested documents “was a contractual obligation.” Id. at 667. “Compliance was not optional or subject to a trial court determination of reasonableness.” Id. The contract’s reasonableness requirement, the court said, “describes how often the insurer can make requests, not the nаture and extent of the information or statement sought.” Id. The court declined to delve into whether other actions of the insurance company were unreasonable in light of the plaintiffs-insureds’ refusal to submit to even one EUO. Id.
The Seventh Circuit, in
Employers Mutual Casualty Co. v. Skoutaris,
The Indiana Court of Appeals applied the
Morris
approach in
Knowledge A-Z, Inc. v. Sentry Insurance,
2. Application to “Reasonableness” Claims
The present action also boils down to a dispute over compliance, or lack thereof, with the EUO clause in the insurance contract. The contract clearly states that the insured must submit to an EUO if requested by the insurance company. The parties conducted one day-long EUO. Both parties left that EUO with the expectation that another EUO would resume once the Defendant requested, and the Plaintiff provided, additional documents relating to the Plaintiffs claims. The Plaintiff later objected to the second EUO and refused to participate because he became frustrated and concerned the Defendant was harass
As a general matter, it should also be noted that
Morris
and
Skoutaris
make clear that the insureds cannot put conditions on their existing contractual duties. The court in
Morris
stated that the insureds’ demand that they receive copies of the previous statements before submitting to an EUO was unfounded. “[T]he contract does not provide that an insured can impose this prerequisite upon the insurer before complying with agreed duties.”
Morris,
More specifically in regard to this case, demanding that an EUO have “reasonable limitations” lacks legal support. The Indiana Supreme Court rejected such an argument in Morris, where the insurance contract at issue had similar language to the contract hеre. The quoted phrase in that case was “[A]s often as we reasonably required.” Id. at 667 (alteration in original). “This reference ... describes how often the insurer can make requests, not the nature and extend of the. information or statement sought.” Id. The court also noted that the insureds “do not contend that the frequence of [the insurance company’s] requests were unreasonable.” Id.
The operative language of the contract in this case is: “We may examine any insured under oath ... as may be reasonably required.” (DE 16-3, 3; Def. Desig. of Mat. Evid., Ex A-2, 3.). The Plaintiff argues that such language means that “[a]ny request for additional [EUOs] must be reasonable.” (DE 17, 2; PI. Memo, of Law in Opp. to Summ. J, 2.) The Plaintiffs arguments for “reasonableness” in reference to the EUO refer to both the subject matter or scope of the EUOs as well as the frequency or number of EUOs: “No rehashing of the same topics discussed in the seven-hour EUO ought to be conducted and some agreement on the length of the sworn statement should be reached.” (DE 17, 7; PI. Memo, of Law in Opp. to Sum. J. at 7.) Because the Plaintiff here did undergo one EUO — unlike in Morris, Skoutaris, and Knowledge A-Z where the insureds never submitted to any EUO — the issue of the frequency or length of the EUO must be addressed. However, as explained below, the fact that the Plaintiff submitted to one EUO, or the start of the EUO, before refusing to participate in the second, or in the continuation of the EUO, is a distinction without a legal difference. The Plaintiff at some points in its legal argument combines the issues of reasonable scope or subject matter on the one hand, and reasonable time, length, or frequency on the other hand, and at other points the Plaintiff treats them separately. The Court will address each reasonableness objection in turn.
(a) Reasonableness as to Scope or Subject Matter of the EUO
The Plaintiff argues that there is a reasonableness limit on the subject matter or scope of a second EUO. The Plaintiffs position is that:
a reasonablеness limitation be placed on any further questioning of Mr. Snyder. Mr. Clark ought' not to be allowed .to rehash the same subject matter that was thoroughly covered in the first EUO. The subject matter ought to be limited to the new documents that were produced by NAS after the initial EUO.
In Morris, the Indiana Supreme Court said the similar contract provision:
describes how often the insurer can make requests, not the nature and extent of the information or statement sought. The policy contract does not itself impose an explicit general “reasonableness” requirement on the insurer regarding what documentation the insurer might demand of the insured or in what context the insurer might ask for an examination under oath.
Morris,
The Plaintiffs legal authority for a claim that the EUO’s subject matter or scope be reasonable or limited is confined to three district court cases cited in its Memorandum of Law in Opposition to Summary Judgment:
Kamin v. Central States Fire Ins. Co.,
Jones
has more conceivable applicability, and the Plaintiff puts stock in the holding. That case involved the plaintiff-insured’s motion to quash the deposition the defendant-insurer sought to conduct on the grounds that the insured had already given a recorded statement and an EUO about his claim.
Jones,
Even if it were true under the legal authority governing this case that a reasonableness principle applies to the subject matter, topic, оr scope of the EUO, there are no material facts to support a claim a second EUO would be unreasonable in this context. There is no factual indication that the Defendant’s purpose in holding the second EUO was meant to harass the Plaintiff. In fact, the record indicates that the Defendant’s purpose in conducting a second EUO was to inquire into documents that were either requested of and received from the Plaintiff after the first EUO or not discussed during the first EUO. The record also is clear that this was the understanding of both Plaintiff and Defendant at the end of the first EUO. The Defendant indicated in Clark’s October 4, 2006, letter that its focus would be on new material or material not covered in the first EUO, though it reserved the possibility that other matters, including those discussed in the first EUO, might be addressed too. The mere possibility that matters discussed in the first EUO might be addressed again in a second EUO cannot create a basis for claiming the second EUO is presumptively unreasonable. The Plaintiffs evidence does not include any allegation that the Defendant during the second EUO intended or planned to cover the same information as the first EUO, only that the Plaintiff feared this. The Plaintiffs belief that the EUO was meant to harass, a belief not articulated until August 2006, does not create a triable issue of fact for a jury to determine. The Plaintiff only accuses the Defendant of refusing to set reasonableness limits on the scope or subject matter. While it might be courteous of the Defendant to do so, it was not required by contract or law, as enunciated in Monis and applied in Skou-taris and Knowledge A-Z. In sum, the Court cannot agree with the Plaintiffs argument that in this case the scope or subject matter of the EUO must be “reasonable,” as set by a court or agreed upon by the parties.
(b) Reasonableness as to Time, Length, or Frequency of the EUO
The Plaintiff also argues that the insurance “policy contains a limitation as to how often Westfield mаy require Mr. Snyder to sit for” EUOs. (DE 17, 2; PL Memo, of Law in Opp. to Summ. J. 2) (emphasis removed). This is a different argument than what the courts addressed in
Morris, Skoutaris,
or
Knowledge A-Z.
The contract in this case states that insureds must undergo an EUO “at such times as may be reasonably required.” (DE 16-3, 3; Def. Desig. of Mat. Evid., Ex A-2, Contract, 3.) As noted earlier, this means the number or frequency of EUOs must be reasonable.
See Morris,
The Plaintiff in this case, however, does not state exactly what that reasonableness limit is or how often the Defendant may require an EUO other than claiming that “Mr. Snyder should not be required to sit for a second EUO unless some reasonable understanding can be reached with West-field as to the length and scope of the second EUO/deposition.” (DE 17, 2-3; Pl. Memo, of Law in Opp. to Summ. J. 2-3.) But this mixes the prior argument regarding the scope or subject matter of the EUO with the issue of a reasonable frequency or number of EUOs. Because the Plaintiff made the argumеnt about the frequency or length of the EUO after undergoing a seven or eight hour EUO, the
As authority for the claim that it is unreasonable to hold an EUO after seven or eight hours, Plaintiff cites the Federal Rules of Civil Procedure. Plaintiff also rests its argument on references to Defendant’s many requests for documents, suggesting that the cumulative amount of information sought from the Plaintiff became unreasonable.
Plaintiffs reliance on the Federal Rules of Civil Procedure comes from its incorporation and quotation оf Baeverstad’s August 31, 2006, letter to Clark. That letter states that “the Federal Rules of Civil Procedure limit depositions to seven (7) hours.” (DE 18-2, 32; PI. Desig. of Evid. in Opp. to Def. Mot. for Summ. J., Ex. 9, 3) (quoted in DE 17, 4; PI. Memo, of Law in Opp. to Summ. J., 4.) Plaintiff presumably is referring to Fed.R.Civ.P. 30(d)(2), which states:
Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours. The court must allow additional time consistent with Rule 26(b)(2) if needed for a fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays the examination.
Fed.R.Civ.P. 30(d)(2). First and most importantly, the Federal Rules of Civil Procedure are not authoritative or dispositive regarding the contractual obligations at issue here. No party has cited any portion of the contract incorporating the Rules as the guidelines for interpretation or disputes, including how often EUOs “may be reasonably required.” (DE 16-3, 3; Def. Desig. of Mat. Evid., Ex A-2, Contrаct, 3.) The Federal Rules in this context are at best only persuasive or analogous.
See Morris,
Plaintiff also couches its claim in the context of Defendant’s many requests for documents and information. The implication is that after the Plaintiff provided thousands of pages of documents, spent many hours dealing with Defendant’s document requests, and submitted to the first EUO, it was unreasonable to make Plaintiff submit to another EUO. While it is clear that the Plaintiff provided a great amount of cooperation with the Defendant’s requests, one problem with this argument is that the Plaintiff left the first EUO with the understanding that the Defendant would request, and the Plaintiff would provide, more documents, and that another EUO would be held to discuss them. The second EUO was not a surprise or an unreasonable ambush. But the Plaintiffs argument creates the impression that the request for the second EUO was
A reasonable jury could not find that holding a second EUO, оr continuing the first EUO, is unreasonable in this case. In other words’, requiring the EUO in this casé, in light of all the circumstances and events, was reasonable as a matter of law. Much more would be needed in this case to make this a triable issue of fact. Perhaps if repeated EUOs were conducted many times, it could become clear that the frequency of EUOs was becoming unreasonable and was meant to harass, as the Plaintiff had suggested in this case. This ruling does not lead to the “logical conclusion” that the Defendant “could take an infinite number of [EUOs] lasting days, weeks or months on end without any limitation.” (DE 18-2, 26; PI. Desig. of Evid. in Opp. to Def. Mot. for Summ. J., Ex. 11, 1) (quoted in DE 17, 5; PI. Memo, of Law in Opp. to Summ. J. 5.) It is also possible that the second EUO could have become unreasonable, but it never occurred. The first EUO — and the prospect of having to sit. through a second EUO — may have been trying for the Plaintiff and not particularly enjoyable, but that does not amount to unreasonableness. No material facts are presented for such a showing of unreasonableness or harassment here. Insofar as the Plaintiff claims that it is unreasonable and in violation of the contract policy to hold a second EUO after the. first one was seven or eight hours, or that it is unreasonable to continue an EUO for more than eight hours on another date, the Plaintiffs claim fails.
In conclusion, it was not unreasonable as a matter of law — in terms of either scope or subject matter on the one hand, or length, frequency, or time on the other hand. — to require a second or continued EUO of the Plaintiff. Because the Plaintiff refused to submit to the requested EUO as required by the contract, this Court has no choice but to find that the Plaintiff breached that provision and thus the contract.
Moms,
B. Bad Faith
The Plaintiffs other claim against the Defendant is for bad faith in handling Plaintiffs insurance claim. The Plaintiff lists seven categories of allegations: failing to acknowledge and act promptly upon communications from the Plaintiff; failing to either affirm or deny coverage of claims on a timely basis; “not attempting in good faith to effectuate prompt, fair[,] and equitable settlement” of the Plaintiffs claim; “compelling” the Plaintiff to file suit to recover what it is owed under the policy; requiring Snyder to undergo the EUO for eight hours and then requesting another EUO; ignoring information from the Defendant’s own expert about the Plaintiffs claim; and “harassing” Plaintiffs employees with requests for documents and statements under oath. (PL Compl, 3; DE 1).
The Plaintiff also argues that the Defendant’s conduct is “unfounded” and that this raises an issue of fact for a jury to consider regarding whether: the Defendant’s refusal to pay the claim is unfounded; the delay in payment is unfounded; and, the Defendant has exercised unfounded advantage-to pressure the Plaintiff into settlement. The Plaintiff also argues that the Defendant has misrepresented thе EUO provision, conduct suggesting it has acted in bad faith.
Insurers have a duty to deal with the insured in good faith, and a violation of that duty is a tort giving rise to a cause of action.
Erie Ins. Co. v. Hickman,
One way “to prove bad faith ... [is to] establish that the insurer had knowledge that there was no legitimate basis for denying liability,”
Monroe Guar. Ins. Co. v. Magwerks Corp.,
The Seventh Circuit in
Skoutañs
applied Indiana law to the plaintiffs bad faith claim and found that the insurance company had not breached its duty of good faith because it evaluated the claim based on the information it had and it sought more information through the EUO.
Skoutañs,
2. Application
The Defendant on numerous occasions requested that the Plaintiff, through its owner, Snyder, undergo a second EUO. The second EUO was not a surprise, but rather was in accord with the understanding of both parties at the completion of the first EUO because of the need to get more information. The Plaintiff at first turned over requested information and did not immediately object to the second EUO when the Defendant raised the issue. It was not until August 2006 that the Plaintiff changed its mind about conducting the EUO. The Defendant repeatedly warned the Plaintiff of its obligation to comply with the EUO provision in the contract, but the Plaintiff refused to participate in the EUO unless there was an agreement about “reasonableness.” The sequence was similar to what happened in
Skoutaris,
where the court found that the insurеr did not breach the duty of good faith: “Over several months, Hamilton Mutual continually asked for documents necessary for an EUO, as well as the EUO itself, and
Also, the Defendant did not deny all liability and refuse outright to make any payments. Rather, it made several payments to the Plaintiff based on the Plaintiffs claims under the insurance policy. The dispute centered on the value of the embroidery design library and the loss of business income, the issues that the Defendant was seeking more information about. The Defendant’s questions about the value of the design library and requests for information about that and other matters before making more payments had a rational, factual basis and cannot be said to be in bad faith.
See Erie Ins. Co. v. Hickman,
Other factual allegations supporting the bad faith unfounded delay claim that the Court must address are the allegations that the Defendant did not return the Plaintiffs phone calls and ignored the Plaintiffs letters and e-mails, and that the Defendant delayed response for several months after the Plaintiff submitted documents. Assuming these are true for purposes of summary judgment, this conduct by the Defendant does not rise to the level of bad faith. Being slow or unresponsive is not the equivalent of “dishonest purpose, moral obliquity, furtive design, or ill will.”
Monroe Guar. Ins. Co. v. Magwerks Corp.,
The Plaintiff has raised no triable issue of fact for a jury to decide if the Defendant’s conduct in handling the claim, conducting an EUO, and requesting information and another EUO was in bad faith. Accordingly, the Defendant’s motion for summary judgment on the claim of bad faith is granted.
CONCLUSION
For the reasons stated above, the Court GRANTS the Defendant’s Motion for Summary Judgment (DE 14). The matter is set for a telephone conference on November 13, 2007, at 12 PM regarding the disposition of the Defendant’s pending counterclaim.
SO ORDERED on November 5, 2007
s/ Theresa L. Springmann
THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
Notes
. NAS requests that we certify to the Indiana Supreme Court the question of whether a party breaches an EUO provision in a policy when it insists on reasonable parameters to a second EUO. We decline to do so.
. At first blush, it might appear that diversity jurisdiction is lacking in this case. 28 U.S.C. § 1332(c)(1) states that:
a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall bedeemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal plаce of business [.]
28 U.S.C. § 1332(c)(1) (emphasis added). The altered text can add a third type of citizenship to defendant insurers: citizenship in the state where the insured is a citizen. In this case, the Plaintiff is a citizen of Indiana, while the Defendant has its incorporation and its principal place of business citizenship in Ohio. One might construe the altered text quoted above as saying that the Defendant also has citizenship in Indiana, where the Plaintiff-insured is a citizen. This of course would defeat diversity jurisdiction and require remand to the state court.
Courts generally have declined to take that approach, which would keep many insurance cases out of the federal courts.
See
Andrew M. Campbell,
Construction and Application of 28 U.S.C.A. § 1332(c)(1), Establishing Citizenship of Insurer in Diversity Action Against Such Insurer Where Insured Is Not Joined as Party Defendant,