United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge
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.
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.
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.
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,
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.
with Cherp’s credit card number in hand, one of
Bostock’s friends called Safeco. 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.
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.
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.
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.
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.
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.
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).
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.
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).
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.
filings by pro se litigants are entitled to special deference
and are not held to the standards of attorneys. Eldridge