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Bostock v. Aurora Loan Services, LLC

United States District Court, D. Idaho

August 1, 2016



          B. Lynn Winmill Chief Judge


         Pending before the Court is Defendant Safeco Insurance Co. of Illinois’ Motion for Summary Judgment. (Dkt. 41). Additionally, Plaintiff Barbara Bostock has moved for additional time to respond to the motion for summary judgment (Dkt. 45), which prompted Safeco’s motion to strike her late-filed response (Dkt. 53). For the reasons explained below, this Court will: (1) grant Bostock’s motion to file a late response; (2) deny Safeco’s motion to strike; and (3) deny Safeco’s motion for summary judgment without prejudice.


         In March 2008, Bostock renewed a Homeowners Insurance Policy with Safeco on a home she owned in Sun Valley, Idaho. See Aff. David Hager, Dkt. 41-5. The annual premium on the one-year policy was $1, 988. Id.

         Around late November 2008, several months after this renewed policy was in effect, Bostock’s elderly mother fell and broke her hip. Bostock traveled to Florida to care for her mother. See Complaint, at 1, Dkt. 1-2. Shortly afterward, on December 8, 2008, Safeco sent Bostock a notice that her December 2008 insurance policy payment had not been received. The notice stated that the policy would be cancelled if payment was not postmarked and mailed by January 12, 2009. See Aff. Jerome Faulkner, Exhibit 1, at 5, Dkt. 41-4. On January 20, 2009 Safeco sent an additional notice to Bostock, as well as her mortgage company, Aurora Loan Services, LLC, indicating that Bostock’s insurance coverage had been cancelled for nonpayment. Jan. 20, 2009 Letter, Ex. 3 to Faulkner Dec., Dkt. 41-4, at 7. This letter informed Aurora that coverage would expire at 12:01 a.m. on February 14, 2009. Id.

         Per the policy agreement, Safeco was required to provide Aurora notice of nonpayment as the mortgage holder, and allow Aurora to maintain protection in the event of non-payment by Bostock. See Aff. David Hanger, at 31, Dkt. 41-5. Pending non-payment by either Bostock or Aurora, Aurora’s coverage would have terminated on February 14, 2009. See Aff. Jerome Faulkner, Exhibit 3, at 7, Dkt. 41-4.

         At some point before February 14, 2009, a loss occurred at the home. On February 11, 2009, Bostock’s daughter, Mia Cherp, went by the home - which was vacant at the time - to check the thermostat. See Aff. Mark Sebastian, Exhibit C (Recorded Statement of Mia Cherp, at 3 (CF 143), Dkt. 41-3; see also Pl’s Second Response Br. at 3, Dkt. 47. She discovered that a pipe had burst, which caused flooding in the interior of the home. Cherp immediately called her mother, and Bostock told her that her insurance coverage may have lapsed. Cherp told her mother to reinstate the policy and supplied a credit card number that her mother could use to make any necessary payments. Cherp then went back to dealing with the flooding house.

         Meanwhile, with Cherp’s credit card number in hand, one of Bostock’s friends called Safeco.[1] She identified herself as Mia Cherp, used Cherp’s credit card to reinstate the policy, and told the insurance company that there had not been any losses on the property. See Aff. Jerry Faulkner, Exhibit 6, (CF 90), Dkt. 41-4.

         Safeco inspected the home on February 18, 2009 and later informed Bostock that it was denying coverage because the policy had been canceled for non-payment on January 13, 2009 - before any damage had occurred to the home. Aff. Jerry Faulkner, Exhibit 8 at 17, Dkt. 41-8; Id. at Exhibit 7, at 15, Dkt. 41-7.

         Although Bostock’s personal coverage had lapsed, her mortgage company, Aurora, evidently exercised its right to preserve coverage on the property prior to that coverage’s expiration on February 14, 2009. See Aff. David Hanger, at 31, ¶ 12(d), Dkt. 41-5. Safeco ultimately paid Aurora “over $100, 000 on the claim”, and its payments to Aurora “were based on actual invoice for the work done.” Aff. Jerry Faulkner, ¶ 12-13, Dkt. 41.

         Bostock, however, contends that she paid for some repairs to the home, and, further, that Safeco did not pay for personal property that was damaged or lost in the flood. See Response, Dkt. 44; Compl. Dkt. 1-2, at 2. Plaintiff alleges that Safeco’s failure to reimburse her under the insurance policy is a breach of contract. Id.


         Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). One of the principal purposes of the summary judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural shortcut, ” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact - a fact “that may affect the outcome of the case.” Id. at 248.

         The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

         The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)(en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).

         This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324.

         However, the Court is “not required to comb through the record to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quotation omitted). Instead, the “party opposing summary judgment must direct [the Court’s] attention to specific triable facts.” Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).

         Only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed.R.Civ.P. 56(e). In determining admissibility for summary judgment purposes, it is the contents of the evidence rather than its form that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). Statements in a brief, unsupported by the record, cannot be used to create a factual dispute. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995). The Circuit has “repeatedly held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment.” Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). Authentication, required by Federal Rule of Evidence 901(a), is not satisfied simply by attaching a document to an affidavit. Id. The affidavit must contain testimony of a witness with personal knowledge of the facts who attests to the identity and due execution of the document. Id.

         Finally, filings by pro se litigants are entitled to special deference and are not held to the standards of attorneys. Eldridge ...

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