Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bartlett v. Blaser, Sorensen & Oleson

United States District Court, D. Idaho

June 19, 2014

RUSSELL BARTLETT, Plaintiff,
v.
BLASER, SORENSEN & OLESON, Chartered, an Idaho corporation, STEPHEN J. BLASER, an individual, Defendants

Page 1093

For Russell Bartlett, doing business as Master Plumbing of Idaho Falls, Plaintiff: Bryan D Smith, LEAD ATTORNEY, Douglas G Bowen, Smith, Driscoll & Associates, PLLC, Idaho Falls, ID.

For Blaser Sorensen & Oleson, an Idaho Corporation, Stephen J Blaser, Defendants: Charles Edward Cather , III, LEAD ATTORNEY, Moffatt Thomas Barrett Rock & Fields, Ctd., Idaho Falls, ID; Julian E Gabiola, LEAD ATTORNEY, MOFFATT THOMAS BARRETT ROCK & FIELDS, Pocatello, ID.

Page 1094

MEMORANDUM DECISION AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No. 19) PLAINTIFF'S MOTION TO COMPEL (Docket No. 21) DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT (Docket No. 26) PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Docket No. 38) PLAINTIFF'S MOTION TO AMEND TO SEEK PUNITIVE DAMAGES (Docket No. 39) PLAINTIFF'S AMENDED MOTION FOR SUMMARY JUDGMENT (Docket No. 49)

Honorable Ronald E. Bush, U.S. Magistrate Judge.

Now pending before the Court are the following motions: (1) Defendants' Motion for Summary Judgment (Docket No. 19), (2) Plaintiff's Motion to Compel (Docket No. 21), (3) Defendants' Amended Motion for Summary Judgment (Docket No. 26), (4) Plaintiff's Motion for Summary Judgment (Docket No. 38), (5) Plaintiff's Motion to Amend to Seek Punitive Damages (Docket No. 39), and (6) Plaintiff's Amended Motion for Summary Judgment (Docket No. 49). Having carefully considered the record, participated in oral argument,[1] and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

1. In late May/early June 2011, Plaintiff performed plumbing work for Rebecca and Robert Trigg (the " Triggs" ) at the Triggs' residence in Pocatello, Idaho. See Defs.' SOF Nos. 5-7 (Docket No. 20, Att. 1) (citing Ex. A to Blaser Decl. ¶ 6 (Docket No. 20, Att. 2)).

2. On August 30, 2011, the Triggs' insurer, Property & Casualty Insurance Company of Hartford (" Hartford" ), sent a letter to Plaintiff indicating that the Triggs were making a claim for water damage, stating that the damages resulted from Plaintiff's negligence and requesting that Plaintiff pay the claim amount of $10,344.69. See id. at No. 8 (citing Ex. B to Blaser Decl. ¶ 7 (Docket No. 20, Att. 2) (" This company carries insurance for the above-named insured. Under the coverage provisions of our policy we were obligated

Page 1095

to pay damages in the above amount. Our investigation indicates that the damages resulted from your negligence." )).

3. On September 27, 2011, Plaintiff's insurer, American National Property and Casualty (" ANPAC" ), sent a letter to Hartford denying Hartford's claim and concluding that the damages were not the result of Plaintiff's negligence. See id. at No. 10 (citing Ex. C to Blaser Decl. ¶ 8 (Docket No. 20, Att. 2) (" Our insured advises when he responded to the call to repair the leak at your insured's home, he found water damage which appeared to have been there for one to two months. Our insured responded to the work order . . . and did the repairs as needed. This water damage was not a result of our insured's negligence." )).

4. On September 30, 2011, Hartford sent Plaintiff another letter demanding that Plaintiff satisfy the loss resulting from his alleged negligence. See id. at No. 11 (citing Ex. D to Blaser Decl. ¶ 9 (Docket No. 20, Att. 2) (" We have not received a response from you to our previous requests for reimbursement. This is your final opportunity to resolve this matter amicably. The Hartford has now prepared this matter to be sent to our legal counsel to pursue collection on the above referenced loss." )).

5. On October 25, 2011, ANPAC sent another letter to Hartford, again denying the claim on the basis that Plaintiff was not negligent. See id. at No. 12 (citing Ex. E to Blaser Decl. ¶ 10 (Docket No. 20, Att. 2) (" Our insured advises when he responded to the call to repair the leak at your insured's home, he found water damage which appeared to have been there for one to two months. Our insured responded to the work order . . . and did the repairs as needed. This water damage was not a result of our insured's negligence." )).

6. On August 14, 2012, Defendant Blaser, on Hartford's behalf, wrote to Plaintiff, indicating his representation of Hartford and seeking collection for a water damage loss claim that occurred on May 21, 2011. See id. at No. 13 (citing Ex. F to Blaser Decl. ¶ 11 (Docket No. 20, Att. 2)). That letter asserted the claim was delinquent and in arrears totaling $10,344.69. See id. Additionally, it said: " YOU ARE HEREBY NOTIFIED THAT WE ARE ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE." Id. (emphasis in original). Apparently, Plaintiff never received the letter. See id. at Nos. 14-15 (citing Exs. G & H to Blaser Decl. ¶ 12 (Docket No. 20, Att. 2)).

7. On September 25, 2012, Defendants, on Hartford's behalf, filed a complaint against Plaintiff in the Seventh Judicial District of the State of Idaho, Bingham County (the " state court action" ). See id. at No. 16 (citing Ex. I to Blaser Decl. ¶ 13 (Docket No. 20, Att. 2)). In pertinent part, the state court action alleges:

That Defendant [(in the state court action, but Plaintiff in this action)] owes Plaintiff [(in the state court action, but Defendants here)] the sum of $10,344.69, together with interest at the rate of 12% and carrying charges as allowed by law from July 5th, 2012, for goods and/or monies loaned to Defendant [(in the state court action, but Plaintiff in this action)] by Plaintiff [(in the state court action, but Defendants here)] . . . .

See id. According to Defendants themselves, the state court action " appears like a debt collection, but is intended to be a subrogation claim for Hartford's payment of damages incurred by its insureds, the Triggs, as a result of Bartlett's alleged negligence." Id

Page 1096

8. On October 7, 2012, Plaintiff (in this action, but the defendant in the state court action) was served with the state court action's complaint. See id. at No. 17 (citing Blaser Decl. ¶ 14 (Docket No. 20, Att. 2)). On October 22, 2012, Plaintiff's counsel made an appearance in the state court action and filed a motion for change of venue. See id. at No. 18 (citing Ex. J to Blaser Decl. ¶ 15 (Docket No. 20, Att. 2)).[2]

9. On November 2, 2012, Hartford and Plaintiff (in this action, but the defendant in the state court action) executed and filed a stipulation for change of venue in the state court action. See id. at No. 20 (citing Ex. L to Blaser Decl. ¶ 17 (Docket No. 20, Att. 2)).

10. On November 6, 2012, an order was entered in the state court action transferring venue from Bingham County, Idaho to Jefferson County, Idaho. See id. at No. 21 (citing Ex. M to Blaser Decl. ¶ 18 (Docket No. 20, Att. 2)).

11. On December 21, 2012 attorney Smith (the defendant's original attorney in the state court action, and, now, Plaintiff's attorney in this action) sent a letter to Defendant Blaser demanding payment of $641.40 in fees and costs incurred in the preparing and filing the motion for change of venue. See id. at No. 25 (citing Ex. Q to Blaser Decl. ¶ 22 (Docket No. 20, Att. 2)). In his letter, attorney Smith characterized Hartford's complaint in the state court action as an effort " to collect a consumer debt" and that " [y]our filing a lawsuit against [Plaintiff] in a county where he does not reside is contrary to law." Id.

12. On January 7, 2013, Plaintiff (in this action, but the defendant in the state court action) answered Hartford's complaint in the state court action, asserting certain tort defenses, including superseding and/or intervening causes (first affirmative defense), comparative negligence (second affirmative defense), failure to mitigate (third affirmative defense), no proximate cause (fourth and seventh affirmative defenses), and tort damages/liability limitations (fifth affirmative defense). See id. at No. 22 (citing Ex. N to Blaser Decl., ¶ 19 (Docket No. 20, Att. 2)).

13. On January 9, 2013, Plaintiff filed his Complaint in this action, asserting three substantive claims against Defendants: (1) Violation of Federal Fair Debt Collection Practices Act -- Improper Venue (Count I); (2) Violation of Federal Fair Debt Collection Practices Act -- Failure to Provide Proper Notice (Count II); and (3) Abuse of Process (Count III). See Compl., pp. 2-4 (Docket No. 1). In particular, Plaintiff contends that Defendants violated the Fair Debt Collection Practices Act (" FDCPA" ) by improperly filing the state court action in Bingham County, Idaho against Plaintiff, a Jefferson County, Idaho resident, to collect a consumer debt. See id. at pp. 2-3. As to the alleged consumer debt, Plaintiff claims that Defendants (as debt collectors under the FDCPA) failed to send Plaintiff written notice at least 30 days before filing the state court action. See id. at p. 3. Plaintiff asserts that Defendants' conduct in these respects amounts to an abuse of process. See id. at pp. 3-4.

14. On February 7, 2013, attorney Justin Oleson, an attorney with Defendant Blaser, Sorensen & Oleson, replied to attorney Smith's December 21, 2012 letter, enclosed a check in the amount of $641.40, and requested that this action be dismissed.

Page 1097

See Defs.' SOF No. 27 (Docket No. 20, Att. 1) (citing Ex. R to Blaser Decl., ¶ 24 (Docket No. 20, Att. 2)).

15. On March 7, 2013, attorney Smith responded to attorney Oleson's February 7, 2013 letter, stating: " Please find enclosed the check you sent our office in the amount of $641.40. Our client has rejected your offer. This means that you will need to file an appearance so that we can move the case forward." Id. at No. 28 (citing Ex. S to Blaser Decl., ¶ 25 (Docket No. 20, Att. 2)).

16. On April 18, 2013, Hartford filed an amended complaint in the state court action. See Defs.' SOF No. 23 (citing Ex. O to Blaser Decl., ¶ 20 (Docket No. 20, Att. 2)). Hartford's amended complaint states in relevant part:

o " Plaintiff's claim is in the nature of subrogation, based upon the tortious conduct of the Defendant [in the state court action, but Plaintiff in this action] set forth herein."
o " Plaintiff's claim is not based upon any debt arising out of any transaction between the parties, which was primarily for personal, family, or household purposes."
o " Pursuant to its insurance policy, Plaintiff paid for the damage to Robert and Rebecca Trigg's home in the amount of $10,344.69 and is subrogated to its home in an amount not less than $10,344.69 and is subrogated to its insured's rights against the Defendant [in the state court action, but Plaintiff in this action] of its payment."
o " Plaintiff's claim is a subrogation and not a debt arising out of any transaction with the Defendant [in the state court action, but Plaintiff in this action] which was primarily for personal or household payment."

Ex. O to Blaser Decl., ¶ 20 (Docket No. 20, Att. 2). Notably, the caption of the amended complaint identifies Hartford " as subrogee" of the Triggs. See id.

17. On April 29, 2013, Plaintiff (in this action, but the defendant in the state court action) answered Hartford's amended state court complaint, asserting the identical tort defenses as those raised in its answer to Hartford's original complaint, including superseding and/or intervening causes (first affirmative defense), comparative negligence (second affirmative defense), failure to mitigate (third affirmative defense), no proximate cause (fourth and seventh affirmative defenses), and tort damages/liability limitations (fifth affirmative defense). See Defs.' SOF No. 24 (Docket No. 20, Att. 1) (citing Ex. P to Blaser Decl., ¶ 21 (Docket No. 20, Att. 2)). Therein, Plaintiff (in this action, but the defendant in the state court action) also admitted that Hartford's amended complaint represented a subrogation claim; and that it was unaware of any debt or transaction between itself and Hartford. See id.

18. On October 24, 2013, Defendants filed their Motion for Summary Judgment, effectively seeking the dismissal of this action. See Defs.' MSJ (Docket No. 19). At its core, Defendants' Motion argues that Plaintiff's reliance on the FDCPA is misplaced because (1) the state court action was never an attempt to collect a " debt" under the FDCPA but, rather, damages incurred by Hartford as a result of Plaintiff's negligence in relation to the plumbing work performed at the Triggs' residence in 2011 -- in essence, that the state court action represents a subrogation case, not a debt collection case; (2) Defendants are not " debt ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.