Gregorio v. Geico General Insurance

815 F. Supp. 2d 1097, 2011 U.S. Dist. LEXIS 104787, 2011 WL 4104873
CourtDistrict Court, D. Arizona
DecidedSeptember 15, 2011
DocketNo. CV-10-00407-PHX-JRG
StatusPublished
Cited by3 cases

This text of 815 F. Supp. 2d 1097 (Gregorio v. Geico General Insurance) 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
Gregorio v. Geico General Insurance, 815 F. Supp. 2d 1097, 2011 U.S. Dist. LEXIS 104787, 2011 WL 4104873 (D. Ariz. 2011).

Opinion

MEMORANDUM OPINION & ORDER

JOSEPH R. GOODWIN, Chief Judge.

Pending before the court is the defendant GEICO’s Motion for Summary Judg[1099]*1099ment [Docket 52], For the reasons explained below, the Motion is GRANTED.

I. Factual Background

This case arises out of an automobile accident that occurred on February 19, 2005, in which an underinsured motorist collided with the plaintiff, Cecilia Gregorio. Prior to 2002, Ms. Gregorio carried a primary automobile insurance policy from GEICO for bodily injury liability and uninsured and underinsured motorist (“UM7UIM”) coverage, each with a $100,000 per person and $300,000 per occurrence limit (100/300). According to the plaintiff, in 2002 she contacted GEICO with a question concerning her primary policy, and the GEICO representative asked if she was interested in adding an umbrella policy. In response, Ms. Gregorio stated that she was concerned about drivers without insurance and drivers without enough insurance. When asked whether the umbrella policy would help her, Ms. Gregorio asserts that the GEICO representative said “yes, that it would not be a problem.” (Pl.’s Resp. to Def.’s Mot. Summ. J., at 2 [Docket 55].) The plaintiff does not recall how many GEICO employees she talked to in the course of obtaining an umbrella policy, and she also does not recall whether she or the GEICO representatives ever used the words “uninsured” or “underinsured” in discussing the umbrella policy. Ms. Gregorio subsequently obtained an umbrella policy, and to be eligible for that policy, she increased her primary automobile insurance policy to $300,000 per person/per occurrence for both the bodily injury liability and UM/ UIM coverage (300/300).

According to the terms of the plaintiffs “Personal Umbrella Liability Insurance Agreement,” the policy “pay[s] damages on behalf of an insured arising of out an occurrence.” “Damages” are defined as the total of “(a) damages an insured must pay: (1) legally; or (2) by agreement with [GEICO’s] written consent; because of personal injury or property damage” and “(b) reasonable expenses an insured incurs at [GEICO’s] request in the: (1) investigation; (2) defense; and (3) settlement of a claim or suit because of personal injury or property damage covered by this policy.” (Umbrella policy attached herewith to Def.’s Mot. Summ. J. [Docket 53-2].) The six-page umbrella policy contains twenty-two exclusions. Exclusion states that the policy does “not cover damages resulting from ... [personal injury or property damage resulting from an uninsured or underinsured motorist claim unless a premium is shown for the uninsured or under-insured motorist coverage in the declarations.” (Id.) It is undisputed that Ms. Gregorio’s umbrella policy did not show a premium for UM/UIM coverage in the declarations.

As a result of the February 19, 2005 accident, Ms. Gregorio sought and received: (1) $15,000 in damages irom the underinsured driver who collided with her; (2) $250,000 in damages from the State of Arizona; and (3) $300,000 in UIM coverage from GEICO under the limits of her primary policy. At that time, the plaintiff neither sought nor received anything from GEICO under her umbrella policy.

On January 26, 2009, Ms. Gregorio allegedly called GEICO to ask why she had not been paid under her umbrella policy. According to GEICO, it investigated her claim and determined that coverage was unavailable. On August 13, 2009, the plaintiffs attorney wrote GEICO a letter demanding that GEICO pay the plaintiff the $1 million limit under the umbrella policy for the UIM coverage allegedly available. GEICO again denied the plaintiffs claim.

[1100]*1100On December 11, 2009, Ms. Gregorio filed suit against GEICO in the Superior Court of the State of Arizona. She alleged breach of contract and tortious breach of the duty of good faith and fair dealing for failing to provide the plaintiff with the UIM coverage allegedly available under the umbrella policy. On February 24, 2010, GEICO removed the case to this court based on diversity jurisdiction, pursuant to 28 U.S.C. § 1332. On March 17, 2011, GEICO filed the pending Motion for Summary Judgment, arguing that the underinsured motorist claim is barred by the statute of limitations and, in the alternative, that there are no genuine issues of material fact as to the plaintiffs breach of contract claim and the breach of good faith and fair dealing claim.1 The matter has been fully briefed and is now ripe for review.

II. Legal Standard

To obtain summary judgment the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the non-moving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. See Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir.2003).

III. Discussion

The plaintiffs first argument in opposition to the summary judgment motion is that GEICO’s agent led her to “reasonably expect” that the purchase of an umbrella policy would provide UM/UIM coverage. She then points to exclusion 12 in the policy, and she claims that she read it to include rather than exclude UM7UIM coverage. Logic compels the conclusion that inclusion and exclusion cannot be true at the same time. Pure contradiction would generally end a legal argument. The plaintiff, however, persists in arguing that the doctrine of reasonable expectations applies. I disagree.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
815 F. Supp. 2d 1097, 2011 U.S. Dist. LEXIS 104787, 2011 WL 4104873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregorio-v-geico-general-insurance-azd-2011.