Bhattacharya v. HISCOX Insurance Company

CourtDistrict Court, D. Arizona
DecidedOctober 29, 2020
Docket2:19-cv-02780
StatusUnknown

This text of Bhattacharya v. HISCOX Insurance Company (Bhattacharya v. HISCOX Insurance Company) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bhattacharya v. HISCOX Insurance Company, (D. Ariz. 2020).

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Sourav Sam Bhattacharya, No. CV-19-02780-PHX-ESW

10 Plaintiff, ORDER

11 v.

12 HISCOX Insurance Company, et. al.,

13 Defendants. 14 15 16 This action concerns insurance policy number UDC-1846291-CGL-16 (the 17 “Policy”) issued by Defendant HISCOX Insurance Company (“HISCOX”) to Networks 18 and Security Research LLC (“NSR”). (Doc. 55-1 at 3-50). Plaintiff is the only manager 19 and member of NSR.1 (Doc. 55-3 at 3). The Policy was in effect from October 31, 2016 20 to October 31, 2017. (Doc. 55-1 at 7). 21 In March 2019, Plaintiff filed an Amended Complaint in the Superior Court of 22 Arizona in and for Maricopa County that raised nine counts against Defendant HISCOX. 23 (Doc. 1-3 at 16-53). Defendant then removed the action to this Court. (Doc. 1). The 24 Amended Complaint presents nine counts. 25 Pending before the Court are Plaintiff’s Motion for Partial Summary Judgment

26 1 NSR recorded a “Resolution” with the Maricopa County Recorder’s Office that 27 states: “All loss incurred to NSR LLC is assigned to Sourav Bhattacharya (as an individual).” (Doc. 55-3 at 3). For purposes of its Motion for Summary Judgment, 28 Defendant does not challenge this purported assignment or Plaintiff’s status as an insured under the Policy. (Doc. 54 at 2 n.2). 1 (Doc. 53) and Defendant HISCOX’s Motion for Summary Judgment (Doc. 54). For the 2 reasons explained below, the Court will enter summary judgment in favor of Defendant 3 on all counts.2 4 I. LEGAL STANDARDS 5 A. Summary Judgment 6 Summary judgment is appropriate if the evidence, when reviewed in a light most 7 favorable to the non-moving party, demonstrates “that there is no genuine dispute as to 8 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 9 P. 56(a). Substantive law determines which facts are material in a case and “only 10 disputes over facts that might affect the outcome of the suit under governing law will 11 properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 12 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable 13 jury could return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, 14 Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the 15 nonmoving party must show that the genuine factual issues “can be resolved only by a 16 finder of fact because they may reasonably be resolved in favor of either party.” Cal. 17 Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th 18 Cir. 1987) (quoting Anderson, 477 U.S. at 250). 19 Because “[c]redibility determinations, the weighing of the evidence, and the 20 drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . 21 [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be 22 drawn in his favor” at the summary judgment stage. Anderson, 477 U.S. at 255 (citing 23 Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); Harris v. Itzhaki, 183 F.3d 24 1043, 1051 (9th Cir. 1999) (“Issues of credibility, including questions of intent, should be 25 left to the jury.”) (citations omitted). 26 27 2 The parties have consented to proceeding before a Magistrate Judge pursuant to Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). (Doc. 15). 28 1 When moving for summary judgment, the burden of proof initially rests with the 2 movant to present the basis for his motion and to identify those portions of the record and 3 affidavits that he believes demonstrate the absence of a genuine issue of material fact. 4 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant fails to carry his 5 initial burden of production, the non-movant need not produce anything further. The 6 motion for summary judgment would then fail. However, if the movant meets his initial 7 burden of production, then the burden shifts to the non-moving party to show that a 8 genuine issue of material fact exists and that the movant is not entitled to judgment as a 9 matter of law. Anderson, 477 U.S. at 248, 250; Triton Energy Corp. v. Square D. Co., 68 10 F.3d 1216, 1221 (9th Cir. 1995). The non-movant need not establish a material issue of 11 fact conclusively in his favor. First Nat’l Bank of Ariz. v. Cities Serv.Co., 391 U.S. 253, 12 288-89 (1968). However, he must “come forward with specific facts showing that there 13 is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 14 U.S. 574, 587 (1986) (internal citation and emphasis omitted); see Fed. R. Civ. P. 15 56(c)(1). 16 Finally, conclusory allegations unsupported by factual material are insufficient to 17 defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 18 1989); see also Soremekun v. Thrifty Payless, Inc., 502 F.3d 978, 984 (9th Cir. 2007) 19 (“[c]onclusory, speculative testimony in affidavits and moving papers is insufficient to 20 raise genuine issues of fact and defeat summary judgment”). Nor can such allegations be 21 the basis for a motion for summary judgment. 22 B. Insurance Policy Interpretation 23 Jurisdiction in this matter is based on diversity of citizenship. (Doc. 1). The Court 24 thus applies the substantive law of Arizona to resolve the insurance coverage issues. 25 See Erie v. Tompkins, 304 U.S. 64, 78 (1938) (federal courts sitting in diversity apply 26 state substantive law and federal procedural law). 27 In Arizona, an insurance policy is interpreted “according to its plain and ordinary 28 meaning, examining it from the viewpoint of an individual untrained in law or business.” 1 Desert Mountain Props. Ltd. P’ship v. Liberty Mut. Fire Ins. Co., 236 P.3d 421, 427 2 (Ariz. Ct. App. 2010). An insurance policy “must be read as a whole, so as to give a 3 reasonable and harmonious effect to all of its provisions.” Charbonneau v. Blue Cross, 4 634 P.2d 972, 975 (Ariz. Ct. App. 1981) (citation omitted). Ambiguity in an insurance 5 policy will be construed against the insurer. California Cas. Ins. Co. v. Am. Family Mut. 6 Ins. Co., 94 P.3d 616, 618 (Ariz. Ct. App. 2004) 7 “Generally, the insured bears the burden to establish coverage under an insuring 8 clause, and the insurer bears the burden to establish the applicability of any exclusion.” 9 Keggi v. Northbrook Prop. and Cas. Ins. Co., 13 P.3d 785, 788 (Ariz. Ct. App. 2000). 10 “In order to establish a prima facie case, he must prove the insurance policy, the 11 happening of the insured event, and the giving of notice as provided in the policy.” Pac.

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