Progressive Direct Insurance Company v. Rueger

• Court: District Court, W.D. Washington
• Decided: June 10, 2020
• Docket: 2:19-cv-01201
• Status: Unknown

Opinion

1 2

3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 PROGRESSIVE DIRECT CASE NO. C19-1201JLR INSURANCE COMPANY, 11 ORDER GRANTING Plaintiff, PLAINTIFF’S MOTION FOR 12 v. DEFAULT JUDGMENT, OR IN THE ALTERNATIVE,

13 SUMMARY JUDGMENT MICHAEL RUEGER, et al., 14 Defendants. 15 16 I. INTRODUCTION 17 Before the court is Plaintiff Progressive Direct Insurance Company’s 18 (“Progressive”) motion for default judgment, or in the alternative, summary judgment 19 against Defendants Michael Rueger and Patricia Rueger. (Mot. (Dkt. # 12).) The motion 20 is unopposed. (See generally Dkt.) The court has considered the motion, the record, and 21 the applicable law. Being fully advised, the court GRANTS Progressive’s motion. 22 // 1 II. BACKGROUND 2 On August 1, 2019, Progressive filed a complaint seeking a declaration that it does

3 not owe Uninsured Motorist Bodily Injury (“UMBI”) coverage to Mr. Rueger under 4 Automobile Policy No. 71505242 (“the Policy”), which was in effect from December 24, 5 2016, to June 24, 2017. (Compl. (Dkt. # 1) ¶¶ 3.30, 5.3-5.4, 6.2-6.3.) Progressive 6 maintains that it does not owe UMBI coverage to Mr. Rueger because Mr. Rueger 7 breached his duties under the Policy in the case of an accident or loss and because he was 8 solely at fault for the accident and failed to provide sufficient evidence under the Policy

9 that another driver was involved. (See generally Mancuso Decl. (Dkt. # 14) ¶ 6, Ex. 51 10 (“Policy”).) 11 Progressive was unable to personally serve its complaint on Mr. Rueger or Ms. 12 Rueger due to “the hostile nature of Defendants and their residence.” (See 10/15/19 Neal 13 Decl. (Dkt. # 5) ¶¶ 3-9.) Progressive sought and received the court’s permission to serve

14 Mr. Rueger and Ms. Rueger with copies of the summons and complaint by mail. (See 15 10/25/19 Order (Dkt. # 6).) Although Progressive served Mr. Rueger and Ms. Rueger by 16 mail (see Aff. (Dkt. # 8) ¶ 3), they have not responded to the complaint (see generally 17 Dkt.). On January 30, 2020, the Clerk of the Court entered default against Mr. Rueger 18 and Ms. Rueger. (Dflt. Order. (Dkt. # 11) at 2.) Nothing on the docket suggests that Mr.

19 Rueger and Ms. Rueger intend to contest Progressive’s complaint or appear before the 20 court. (See generally Dkt.) 21 //

22 1 This exhibit is a copy of the Policy mentioned above. 1 On January 20, 2017, Mr. Rueger was driving on a highway in Maple Valley, 2 Washington, when his 1999 Jeep Grand Cherokee hit a guardrail (Mancuso Decl. ¶ 4, Ex.

3 3 at 4-5),2 causing an accident that sent him to the hospital (2/19/20 Neal Decl. (Dkt. 4 # 13) ¶ 1, Ex. 1 (“Police Report”) at 3). Mr. Rueger suffered serious injuries and 5 underwent several surgeries because of the accident. (Mancuso Decl. ¶ 12, Ex. 11 6 (“Rueger Dep.”) at 36:6-20.) Mr. Rueger was intoxicated during the accident and, on 7 November 13, 2017, he pleaded guilty to driving under the influence with a blood alcohol 8 concentration of .16. (2/19/20 Neal Decl. ¶ 3, Ex. 2 (“Plea”).)

9 Progressive informed Mr. Rueger in May 2018 of a premium increase due to his 10 fault in the accident. (Mot. at 8; see Mancuso Decl. ¶ 7, Ex. 6.) Mr. Rueger then told 11 Progressive for the first time that another car had caused the accident. (Compl. ¶ 3.11; 12 Mancuso Decl. ¶ 15.) In response, Progressive opened a UMBI claim to investigate a 13 phantom car or hit-and-run incident. (Compl. ¶ 3.12; Mancuso Decl. ¶ 16.) Mr. Rueger

14 sent photos of his Jeep to Progressive (Mancuso Decl. ¶ 8, Ex. 7) and stated under oath 15 that another car had hit the side of his Jeep, causing him to swerve into the guardrail 16 (Rueger Dep. at 20:3-6, 23:7-14). However, Progressive was unable to identify any 17 damage to the Jeep that another driver could have caused. (Compl. ¶ 3.13; Mancuso 18 Decl. ¶ 17.) Progressive sent several letters to Mr. Rueger asking for objective

19 documentation to support his narrative and informing him that his lack of cooperation 20 //

21 2 This citation refers to the page numbers provided by the court’s electronic filing system (“ECF”). Unless stated otherwise, this order cites to the page numbers provided by ECF. 22 1 was impeding Progressive’s investigation. (Compl. ¶¶ 3.14-3.19, 3.24-3.25, 3.27-3.29; 2 Mancuso Decl. ¶ 9, Ex. 8 (“Letters”).) Mr. Rueger refused to allow Progressive’s experts

3 to examine his Jeep in person (Compl. ¶ 3.23; Mancuso Decl. ¶ 20) and told Progressive 4 on May 24, 2019, that he no longer possessed any part of the Jeep (Compl. ¶ 3.26). 5 The Policy provides up to $500,000.00 in UMBI coverage for injuries caused by 6 an “underinsured motor vehicle” (Compl. ¶ 3.32; Policy at 3), including a phantom 7 vehicle “when the facts of the accident can be corroborated by competent evidence other 8 than the named insured’s testimony” (Compl. ¶ 4.5; Policy at 17). The Policy also

9 contains a cooperation clause, which states that a person seeking coverage must 10 “[c]ooperate with [Progressive] in any matter concerning a claim or lawsuit,” including 11 by allowing Progressive to inspect damaged vehicles and take sworn statements from 12 policyholders. (Compl. ¶ 3.34; Policy at 31.) 13 In its present motion for a default judgment, or in the alternative, for summary

14 judgment, Progressive seeks a declaration that it does not owe Mr. Rueger any UMBI 15 coverage for his injuries because he failed to cooperate with its investigation and was 16 solely at fault for the accident. (See Mot. at 14-19; see also Compl. ¶¶ 3.2, 4.4-4.7, 17 6.2-6.3.) The court now considers Progressive’s motion. 18 III. ANALYSIS

19 As discussed below, the court grants Progressive’s motion for default judgment 20 and also concludes, in the alternative, that Progressive is entitled to the declaration it 21 seeks on summary judgment. 22 // 1 A. Motion for Default Judgment 2 The court first considers whether Progressive is entitled to the declaration it seeks

3 on default judgment. 4 1. Standards for Default Judgment 5 Obtaining a default judgment is a two-step process. First, if a party fails to appear, 6 the clerk must enter that party’s default. Fed. R. Civ. P. 55(a). Second, upon a party’s 7 request or motion, the court may grant default judgment. Fed. R. Civ. P. 55(b)(2); see 8 Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Default judgment is only

9 appropriate if the well-pleaded factual allegations of the complaint are “sufficient to 10 establish [a] plaintiff’s entitlement to a judgment under the applicable law.” 11 TransAmerica Life Ins. Co. v. Young, No. 2:14-cv-2314 MCE AC, 2015 U.S. Dist. 12 LEXIS 139320, at *4 (E.D. Cal. Oct. 13, 2015) (citing DIRECTV, Inc. v. Hoa Huynh, 503 13 F.3d 847, 855 (9th Cir. 2007)); see also UN4 Prods., Inc. v. Primozich, 372 F. Supp. 3d

14 1129, 1133 (W.D. Wash. 2019). To determine the plaintiff’s entitlement to judgment, 15 “[t]he court must accept all well-pled allegations of the complaint as established fact, 16 except allegations related to the amount of damages.” UN4, 372 F. Supp. 3d at 1133 17 (citing TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987)). 18 If the complaint is sufficient, the court decides whether to grant default judgment

19 by considering the seven factors set forth in Eitel v. McCool, 782 F.2d 1470, 1471-72 20 (9th Cir. 1986). They are: 21 (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of money 22 at stake in the action; (5) the possibility of a dispute concerning material 1 facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on 2 the merits.

3 Id. 4 In this case, Progressive asserts that it is entitled to a declaratory judgment that it 5 owes no UMBI coverage to Mr. Rueger on two grounds: (1) that Mr. Rueger breached 6 his duty to cooperate with Progressive’s investigation; and (2) that Mr. Rueger was solely 7 at fault for the accident and failed to provide sufficient evidence under the Policy that 8 another driver was involved. (Mot. at 2.) The court first considers whether Progressive 9 is entitled to the declaratory judgment it seeks based on the well-pleaded allegations of its 10 complaint. See infra §§ III.A.2-3. If the well-pleaded allegations establish Progressive’s 11 entitlement to a declaratory judgment, the court next considers the seven Eitel factors to 12 determine whether to grant default judgment. See infra § III.A.4. 13 2. Whether Mr. Rueger Failed to Cooperate with Progressive’s Investigation

14 In Washington, “[a]n insured’s breach of a cooperation clause releases the insurer 15 from its responsibilities if the insurer was actually prejudiced by the insured’s breach.” 16 Tran v. State Farm Fire & Cas. Co., 961 P.2d 358, 365 (Wash. 1998). “Interference with 17 the insurer’s ability to evaluate and investigate a claim may cause actual prejudice.” Id. 18 However, “the insurer’s requests for information must be material to the circumstances

19 giving rise to liability on its part.” Id. at 363 (citing Pilgrim v. State Farm Fire & Cas. 20 Ins. Co., 950 P.2d 479, 483 (Wash. Ct. App. 1997)). In Tran, an electronics repairman 21 breached his duty to cooperate with his insurer after his business was allegedly 22 burglarized because he refused to provide evidence of his financial records, which were 1 “relevant and material” to the insurer’s investigation into potential fraud. 961 P.2d at 2 367. The Tran court concluded that “[b]ecause, in the final analysis, it is uncontroverted

3 that [the insured’s] intransigence prevented [the insurer] from completing a legitimate 4 investigation in order to determine whether or not coverage should be provided, it follows 5 that [the insurer] suffered prejudice.” Id. at 366. 6 Progressive’s complaint alleges that Mr. Rueger failed to cooperate with requests 7 to inspect the Jeep (Compl. ¶¶ 3.23, 3.26, 3.29) and for documentation supporting a 8 phantom vehicle or hit-and-run incident since his deposition on January 22, 2019 (id.

9 ¶¶ 3.27-3.28, 4.6). Progressive was “unable to identify any damage caused by the alleged 10 hit-and-run vehicle” based on the photos Mr. Rueger took in 2017 (id. ¶ 3.13) and has no 11 way of inspecting the Jeep now that Mr. Rueger has discarded it (see id. ¶¶ 3.21, 3.26). 12 The Policy requires persons seeking coverage to cooperate in “any matter concerning a 13 claim or lawsuit.” (Id. ¶ 3.34; Policy at 31.) Progressive’s requests to inspect Mr.

14 Rueger’s Jeep and for evidence supporting his claim are material and relevant because 15 Progressive opened the UMBI claim to investigate an alleged phantom car or hit-and-run 16 incident. (See Compl. ¶ 3.12.) 17 Progressive’s allegations establish that the company has been prejudiced by Mr. 18 Rueger’s lack of cooperation because he discarded the Jeep before Progressive could

19 inspect it and failed to provide any evidence that another car caused the accident, 20 preventing Progressive from adequately investigating the UMBI claim. See Tran, 961 21 P.2d at 366-67 (concluding that an insured’s failure to cooperate prejudiced the insurer 22 when the insured’s failure prevented the insurer from completing its coverage 1 investigation). Thus, the court concludes based on the well-pleaded allegations of the 2 complaint that Progressive is entitled to a declaration that it does not owe Mr. Rueger

3 UMBI coverage. 4 3. Whether There Is Sufficient Evidence Another Car Caused the Accident 5 Progressive opened the UMBI claim because Mr. Rueger told the company 6 another car caused the accident. (Compl. ¶ 3.12.) Under the Policy, Progressive owes 7 coverage for injuries caused by an “underinsured motor vehicle,” including a phantom 8 vehicle “when the facts of the accident can be corroborated by competent evidence other

9 than the named insured’s testimony.” (Id. ¶ 4.5; Policy at 17.) If there is no additional 10 evidence that another car caused the accident, then Progressive does not owe Mr. Rueger 11 UMBI coverage. (See Compl. ¶¶ 4.4-4.6; see generally Policy.) 12 Progressive’s complaint alleges that “[t]here is no evidence that another car was 13 involved in the subject accident.” (Compl. ¶ 3.2.) Although Mr. Rueger testified that

14 another car caused the accident (id. ¶ 3.22; Rueger Dep. at 20:3-6, 23:7-14), a witness 15 saw Mr. Rueger driving with his lights off before colliding with the guardrail (Compl. 16 ¶ 3.4; see Mancuso Decl. ¶ 2, Ex. 1 (“Witness Statement”)), and Mr. Rueger was arrested 17 for driving while intoxicated after the accident and pleaded guilty to this offense (Compl. 18 ¶¶ 3.7-3.8; see also Plea). Moreover, except for Mr. Rueger’s own testimony, nothing in

19 the record indicates that there is any evidence that another car caused the accident (see 20 Compl. ¶¶ 3.27-3.28, 4.6, 4.9; see generally Dkt.), and Mr. Rueger did not allow 21 Progressive to inspect his Jeep before discarding it (id. ¶¶ 3.21, 3.23, 3.26, 3.29). 22 // 1 Thus, based on the well-pleaded allegations of the complaint, the court concludes 2 that Progressive is entitled to a declaration that it does not owe Mr. Rueger UMBI

3 coverage because there is no evidence aside from his own testimony that another car 4 caused the accident, which is insufficient to establish a UMBI claim under the Policy. 5 4. Whether the Eitel Factors Weigh in Favor of Default Judgment 6 Having concluded that the well-pleaded allegations in the complaint establish 7 Progressive’s entitlement to a declaration that it is not liable to Mr. Rueger under the 8 Policy on two separate grounds, see supra § III.A.2-3, the court now considers the Eitel

9 factors to decide whether to exercise its discretion to grant default judgment for 10 Progressive. See Eitel, 782 F.2d at 1471-72. 11 a. Factor One: Possibility of Prejudice 12 Given Mr. Rueger’s apparent disinterest in resolving the UMBI claim, Progressive 13 has “no other recourse to secure a ruling regarding its liability” absent a default

14 judgment. Colony Ins. Co. v. Thomas, No. CV 10-04218 MMM (SHx), 2011 U.S. Dist. 15 LEXIS 162730, at *9 (C.D. Cal. Jan. 24, 2011). Specifically, Progressive “will be unable 16 to determine its obligations” to Mr. Rueger under the Policy without a grant of default 17 judgment. Id. Thus, the first Eitel factor favors default judgment. 18 b. Factors Two and Three: Merits and Sufficiency of the Complaint

19 The second and third Eitel factors are often considered together. See Curtis v. 20 Illumination Arts, Inc., 33 F. Supp. 3d 1200, 1211 (W.D. Wash. 2014); Colony, 2011 21 U.S. Dist. LEXIS 162730, at *10. These factors “require that a plaintiff state a claim on 22 which [it] may recover.” Colony, 2011 U.S. Dist. LEXIS 162730, at *10 (quoting 1 PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1175 (C.D. Cal. 2002)); see also 2 Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978). The well-pleaded allegations in

3 the complaint establish that Progressive does not owe Mr. Rueger UMBI coverage 4 because Progressive has been prejudiced by Mr. Rueger’s lack of cooperation and 5 because there is no evidence aside from Mr. Rueger’s self-serving testimony that another 6 car caused the accident. See supra §§ III.A.2-3. Thus, the second and third Eitel factors 7 favor default judgment because Progressive’s complaint sufficiently establishes that it 8 does not owe Mr. Rueger UMBI coverage.

9 c. Factor Four: Sum of Money at Stake 10 Although Progressive is not seeking damages, it is requesting a declaration that it 11 is not liable to Mr. Rueger for up to $500,000.00 due to injuries he suffered from the 12 accident. The exact amount of Mr. Rueger’s medical bills is unknown, and he has made 13 no effort to introduce evidence of his losses. (See generally Dkt.) Even if Mr. Rueger’s

14 medical bills are large, Progressive has established that it does not owe Mr. Rueger 15 UMBI coverage. Thus, this factor is neutral and does not affect the outcome of the 16 motion. 17 d. Factor Five: Possibility of a Dispute Concerning Material Facts 18 With the court’s permission, Progressive served both Mr. Rueger and Ms. Rueger

19 by mail. (See Aff. ¶ 3; see also 10/25/19 Order.) Nevertheless, they have failed to 20 appear before the court or indicate any intent to contest Progressive’s suit. (See generally 21 Dkt.) Thus, any factual disputes would arise from Progressive’s own filings. Although 22 Progressive indicates that Mr. Rueger claims another vehicle was involved in the accident 1 (Compl. ¶ 3.11, 3.22), the only evidence that supports the involvement of a second 2 vehicle is Mr. Rueger’s deposition testimony (see Rueger Dep. at 20:3-6, 23:7-14).

3 However, the Policy requires Mr. Rueger to produce evidence beyond his own testimony 4 to corroborate the existence of a phantom vehicle. (See Policy at 17.) Without additional 5 evidence, Mr. Rueger’s testimony alone does not itself create a dispute of material fact 6 concerning his right to UMBI coverage. The remaining evidence uniformly indicates that 7 Mr. Rueger caused the accident. Thus, the fifth Eitel factor favors default judgment. 8 e. Factor Six: Whether Default Was due to Excusable Neglect

9 Before mailing the summons and complaint to Mr. Rueger and Ms. Rueger, 10 Progressive struggled to serve either party. At one point, a “hostile John Doe with a large 11 riding lawn mower” chased Progressive’s third-party process server off Mr. Rueger’s 12 property. (10/15/19 Neal Decl. ¶ 7, Ex. C.) The process server determined that the 13 property was a “[h]ostile environment” during a subsequent attempt to serve the

14 complaint after noticing several dogs roaming free outside of Mr. Rueger’s home. (Id. 15 ¶ 8, Ex. D.) Given the difficulty Progressive had serving Mr. Rueger and Ms. Rueger and 16 their complete failure to respond to the complaint, the court concludes that the default 17 was not due to any excusable neglect on Mr. Rueger or Ms. Rueger’s part. Thus, this 18 factor also supports default judgment.

19 f. Factor Seven: Policy Favoring Decisions on the Merits 20 When a defendant fails to answer a plaintiff’s complaint, “the seventh Eitel factor 21 does not preclude the entry of default judgment.” Colony, 2011 U.S. Dist. LEXIS 22 162730, at *26. Although policy favors decisions on the merits, the court “may consider 1 Defendants’ failure to respond . . . as admissions that the motions have merit.” UN4, 372 2 F. Supp. 3d at 1134 (citing Local Rules W.D. Wash. LCR 7(b)(2)). “Moreover, [a]

3 [d]efendant’s failure to answer [a] [p]laintiff’s [c]omplaint makes a decision on the merits 4 impractical, if not impossible.” PepsiCo, 238 F. Supp. 2d at 1177. Because Mr. Rueger 5 has failed to respond to the complaint, this factor does not prevent the court from granting 6 default judgment for Progressive. 7 g. Conclusion on the Eitel Factors 8 The majority of the Eitel factors favor granting Progressive default judgment

9 against Mr. Rueger and Ms. Rueger. Although there is a potentially a large sum of 10 money at stake, there is no evidence of Mr. Rueger’s medical bills and, even if there 11 were, Progressive still would not owe him UMBI coverage because of his failure to 12 cooperate and the insufficiency of evidence to support his claim that another car caused 13 the accident. Thus, the court GRANTS Progressive’s motion for default judgment.

14 B. Motion for Summary Judgment 15 Although the court grants Progressive’s motion for default judgment, Progressive 16 is also entitled in the alternative to the declaration it seeks on summary judgment. 17 1. Standards 18 District courts may not grant summary judgment “simply because no papers

19 opposing the motion are filed or served, and without regard to whether genuine issues of 20 material fact exist.” Cristobal v. Siegal, 26 F.3d 1488, 1491 (9th Cir. 1994). Summary 21 judgment should only be granted if the movant shows “that there is no genuine dispute as 22 to any material fact and [that] the movant is entitled to judgment as a matter of law.” 1 Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A 2 fact is “material” if it “might affect the outcome of the suit.” Anderson, 477 U.S. 242 at

3 248. The court may consider material facts to be undisputed and grant unopposed 4 summary judgment if the nonmoving party fails to respond, Fed. R. Civ. P. 56(e)(2), but 5 unopposed summary judgment is improper if “the movant’s papers are themselves 6 insufficient to support a motion for summary judgment or on their face reveal a genuine 7 issue of material fact,” United States v. Real Prop. Located at Incline Vill., 47 F.3d 1511, 8 1520 (9th Cir. 1995) (quoting (Henry v. Gill Indus., Inc., 983 F.2d at 949)). If there is

9 “sufficient evidence supporting the claimed factual dispute . . . [that] require[s] a jury or 10 judge to resolve the parties’ differing versions of the truth at trial,” the moving party is 11 not entitled to summary judgment. First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 12 253, 289 (1968). 13 In this case, the Clerk of the Court entered Mr. Rueger and Ms. Rueger’s default

14 on January 30, 2020. (Dflt. Order at 2.) Thus, when deciding whether Mr. Rueger 15 breached his duty to cooperate and was solely at fault for the accident, the court considers 16 the undisputed facts in Progressive’s declarations and exhibits. If the undisputed facts 17 show that Progressive is entitled to judgment as a matter of law, the court may grant 18 summary judgment for Progressive.

19 2. Whether Mr. Rueger Failed to Cooperate with Progressive’s Investigation 20 As noted above, in Washington, “[a]n insured’s breach of a cooperation clause 21 releases the insurer from its responsibilities if the insurer was actually prejudiced by the 22 insured’s breach.” Tran, 961 P.2d at 365. Further, “[i]nterference with the insurer’s 1 ability to evaluate and investigate a claim may cause actual prejudice.” Id.; see supra 2 § III.A.2.

3 Mr. Rueger has not complied with Progressive’s “requests for objective 4 documentation supporting (1) the existence of a hit-and-run vehicle and (2) that the 5 actions of the hit-and-run driver are legally responsible for injuries sustained.” (Mancuso 6 Decl. ¶ 18; see also Letters.) Further, Mr. Rueger has not complied with Progressive’s 7 “request for identification of damage caused by the hit-and-run vehicle” (Mancuso Decl. 8 ¶ 19, Ex. 9) and Progressive’s “request to inspect any part of his vehicle involved in the

9 subject accident” (id. ¶ 20; see also Letters). Progressive “was unable to identify any 10 damage caused by the alleged hit and run vehicle” from Mr. Rueger’s photos (Mancuso 11 Decl. ¶ 17) and now cannot inspect the Jeep (see id. ¶ 20). 12 The Policy requires persons seeking coverage to cooperate with Progressive in 13 “any matter concerning a claim or lawsuit.” (Policy at 31.) Progressive’s requests to

14 inspect Mr. Rueger’s Jeep and for evidence supporting his claim are material and relevant 15 because Progressive opened the UMBI claim to investigate an alleged phantom car or 16 hit-and-run incident. (Mancuso Decl. ¶ 16.) There is no evidence to suggest that Mr. 17 Rueger complied with these requests. (See generally Dkt.) Thus, there is no genuine 18 issue of material fact as to whether Mr. Rueger cooperated with Progressive’s

19 investigation after his deposition, and the only remaining question is whether Progressive 20 was prejudiced by Mr. Rueger’s lack of cooperation. 21 Progressive has been unable to process Mr. Rueger’s UMBI claim because he 22 failed to provide the company with documentation supporting his narrative or allow an 1 expert to inspect the Jeep before discarding it. (See Mancuso Decl. ¶¶ 17-20.) 2 Progressive cannot process Mr. Rueger’s UMBI claim if it cannot determine whether a

3 phantom car or hit and run caused the accident. Thus, Mr. Rueger’s failure to cooperate 4 prejudiced Progressive. See Tran, 961 P.2d at 366-67 (concluding that because 5 uncontroverted evidence established that the insured’s intransigence prevented the insurer 6 from completing a legitimate coverage investigation, the insurer suffered prejudice). 7 Based on the foregoing analysis, the court concludes that Progressive is entitled on 8 summary judgment to a declaration that it owes no UMBI coverage to Mr. Rueger under

9 the Policy due to his breach of the Policy’s cooperation clause. 10 3. Whether There Is Sufficient Evidence Another Car Caused the Accident 11 Under the Policy, Progressive owes coverage for injuries caused by an 12 “underinsured motor vehicle,” including a phantom vehicle “when the facts of the 13 accident can be corroborated by competent evidence other than the named insured’s

14 testimony.” (Policy at 17.) If there is no evidence that another car caused the accident, 15 then Progressive does not owe Mr. Rueger UMBI coverage. (See id.) 16 Progressive’s evidence overwhelmingly indicates that Mr. Rueger was solely at 17 fault for the accident because he was driving under the influence without headlights on 18 before swerving into the guardrail. (See Mancuso Decl. ¶ 17; Police Report; Plea;

19 Witness Statement.) Although Progressive’s complaint states that there is “no evidence” 20 another car was involved in the accident (Compl. ¶ 3.2), Mr. Rueger testified under oath 21 that a pickup truck ran him into the guardrail (Rueger Dep. at 20:3-6, 23:7-14). 22 However, Mr. Rueger’s deposition is not material to the outcome of this dispute because 1 the Policy requires evidence beyond the insured’s testimony in claims involving phantom 2 vehicles (see Policy at 17) and there is no evidence other than Mr. Rueger’s testimony of

3 a hit and run (see Mancuso Decl. ¶ 17). Thus, there is no genuine issue of material fact 4 that would prevent the court from granting summary judgment to Progressive on this 5 issue either, and Progressive is therefore entitled to a declaration that it owes no UMBI 6 coverage to Mr. Rueger under the Policy on this ground as well. 7 IV. CONCLUSION 8 For the reasons set forth above, the court GRANTS Progressive’s motion for

9 default judgment, or in the alternative, summary judgment against Mr. Rueger and Ms. 10 Rueger (Dkt. # 12). The court hereby enters a DECLARATORY JUDGMENT that 11 Progressive does not owe Mr. Rueger and Ms. Rueger UMBI coverage for injuries Mr. 12 Rueger sustained during the January 20, 2017, car accident involving Mr. Rueger’s 1999 13 Jeep Grand Cherokee under Automobile Policy No. 71505242, which was in effect from

14 December 24, 2016, to June 24, 2017. 15 Dated this 10th day of June, 2020.

17 A

18 JAMES L. ROBART 19 United States District Judge 20 21 22