Nez v. American Family Mutual Insurance Company

• Court: District Court, D. Arizona
• Decided: January 2, 2020
• Docket: 3:19-cv-08200
• Status: Unknown

Opinion

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

9 Victoria Nez, No. CV-19-08200-PCT-GMS

10 Plaintiff, ORDER

11 v.

12 American Family Mutual Insurance Company, 13 Defendant. 14 15 16 Pending before the Court is Defendant American Family Mutual Insurance 17 Company (“Defendant”)’s Motion for Summary Judgment (Doc. 16). For the following 18 reasons, the motion is denied. 19 BACKGROUND 20 On October 12, 2017, Plaintiff Victoria Nez’s adult sister, Jovita Baldwin, was 21 fatally injured while crossing Camelback Road. The deceased was hit by a vehicle driven 22 by non-party Ledrius Franklin. Plaintiff is now a legal guardian to the deceased’s thirteen- 23 year-old son and personal representative of the deceased’s estate. 24 Plaintiff maintains an uninsured motorist policy with Defendant. The policy 25 provides uninsured motorist coverage for all family members that are in the same 26 household as Plaintiff. Upon the death of her sister, Plaintiff filed a claim for the uninsured 27 motorist coverage. Defendant denied Plaintiff’s claim for failure to provide evidence that 28 the deceased was Plaintiff’s relative and a member of Plaintiff’s household. Plaintiff claims 1 to have provided sufficient evidence. As a result, Plaintiff brought this action against 2 Defendant alleging breach of contract. Defendant now moves for summary judgment. 3 DISCUSSION 4 I. Legal Standard 5 The purpose of summary judgment is “to isolate and dispose of factually 6 unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary 7 judgment is appropriate if the evidence, viewed in the light most favorable to the 8 nonmoving party, shows “that there is no genuine issue as to any material fact and that the 9 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Only disputes 10 over facts that might affect the outcome of the suit will preclude the entry of summary 11 judgment, and the disputed evidence must be “such that a reasonable jury could return a 12 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 13 (1986). 14 “[A] party seeking summary judgment always bears the initial responsibility of 15 informing the district court of the basis for its motion and identifying those portions of [the 16 record] which it believes demonstrate the absence of a genuine issue of material fact.” 17 Celotex, 477 U.S. at 323. Parties opposing summary judgment are required to “cit[e] to 18 particular parts of materials in the record” establishing a genuine dispute or “show[ ] that 19 the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 20 56(c)(1). A district court has no independent duty “to scour the record in search of a 21 genuine issue of triable fact[.]” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 22 II. Analysis 23 This dispute arose because it is unclear in what capacity Plaintiff is bringing this 24 action.1 The Arizona statute governing wrongful death actions provides: 25 An action for wrongful death shall be brought by and in the name of the surviving husband or wife, child, parent or guardian, or personal 26 representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of 27 the decedent’s estate.

28 1 Because Plaintiff does not contest Defendant’s characterization of this action as a wrongful death action, the Court will treat it as such. 1] A.R.S. § 12-612 (emphasis added). It is undisputed that Plaintiff may not bring a wrongful 2|| death action in her individual capacity or on behalf of the estate. It is similarly undisputed || that Plaintiff may bring a wrongful death action in her capacity as personal representative of the estate on behalf of the decedent’s surviving son. 5 Defendant moved for summary judgment because it understood Plaintiff to be || improperly bringing a wrongful death action either in her individual capacity or on behalf 7\| of the estate. Plaintiff asserts in her Response, for the first time, that she is bringing this 8 || action on behalf of the decedent’s son. Because Plaintiff may bring a wrongful death action on behalf of a statutory beneficiary, summary judgment for Defendant on the grounds that 10 || Plaintiff is an improper plaintiff is not appropriate. However, the caption in this action must 11 || be amended to reflect Plaintiff's representative capacity. 12 CONCLUSION 13 IT IS THEREFORE ORDERED that Defendant American Family Mutual Insurance Company’s Motion for Summary Judgment (Doc. 16) is DENIED. 15 IT IS FURTHER ORDERED directing the Clerk of Court to amend the caption 16]| in this action to “Victoria Nez, as personal representative of the Estate of Jovita Baldwin 17 || on behalf of the statutory beneficiary of Jovita Baldwin.” 18 Dated this 31st day of December, 2019. 19 Wi, 20 A Whacrsay Sooo) Chief United States District Judge 22 23 24 25 26 27 28

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