United States District Court, D. Oregon, Pendleton Division
FINDINGS AND RECOMMENDATIONS
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE.
Clymo brings this action against American States Insurance
Co., arising from defendant's alleged failure to pay for
property damage pursuant to an insurance contract.
See Complaint (Docket No. 1-1). Defendant has moved
for partial summary judgment on plaintiff's negligence
per se claim. (Docket No. 12). Plaintiff has moved
to certify a question to the Oregon Supreme Court, regarding
whether an insurance policy-holder can bring a negligence
per se claim against an insurer. (Docket
No. 14). Each party opposes the other's Motion. (Docket
Nos. 20-22). The Court has determined that this case can be
decided without oral argument. For the following reasons, the
Court should GRANT defendant's Motion for Partial Summary
Judgment, and DENY plaintiff's Motion for Certification.
Clymo owned a residence in Haines, Oregon (“the
Property”). Compl. ¶ 3.Plaintiff leased the Property
to two tenants, whom plaintiff ultimately evicted.
Id. ¶¶ 4-7. Upon retaking possession of
the Property, plaintiff discovered that the tenants had
extensively “damaged and vandalized the Property,
” and had stolen items from there. Id.
had insured the Property through defendant, and the above
damage occurred while the insurance policy was in effect.
Id. ¶¶ 14-17. Plaintiff submitted a timely
claim to defendant for the damage to the Property and to her
personal property. Id. ¶ 18. Defendant denied
plaintiff's claim and has refused to pay for the damage.
Id. ¶ 20. As a result of this denial, plaintiff
was unable to repair the damage to the Property or replace
her personal property; plaintiff ultimately sold the property
at a reduced price as a consequence of defendant's
failure to pay on the claim. Id. ¶¶ 23-25.
alleges that defendant's denial to pay plaintiff's
claim was “incorrect and unreasonable.”
Id. ¶ 21. Plaintiff alleges that the economic
damages from selling the Property at a reduced price were
foreseeable. Id. ¶ 26. Plaintiff also asserts
consequential damages including personal bodily and medical
damages as a result of defendant's “negligent
handling” of the claim, as well as “physical and
mental pain and suffering.” Id. ¶¶
brings three claims in her Complaint:
(1) Breach of contract, id. ¶¶ 30-35;
(2) Breach of the implied covenant of good faith,
id. ¶¶ 36-41; and
(3) Negligence per se, based on a standard of care
purportedly established by the Oregon Unfair Claims
Settlement Practices Act (“UCSPA”), Or. Rev.
Stat. § 746.230; Compl. ¶¶ 42-50.
originally brought this action in the Superior Court for
Baker County, Oregon. (Docket No. 1-1). Defendant removed the
action to this Court on the basis of diversity jurisdiction.
28 U.S.C §§ 1332, 1441. (Docket No. 1).
Motion for Summary Judgment
judgment is appropriate when there is no genuine issue as to
any material fact and the moving party is entitled to a
judgment as a matter of law. Fed.R.Civ.P. 56(a). The burden
is on the moving party to point out the absence of any
genuine issue of material fact; once the initial burden is
satisfied, the burden shifts to the opponent to demonstrate
through the production of probative evidence that there
remains an issue of fact to be tried. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In opposing summary
judgment, a party may not rely on mere allegations or denials
in pleadings, but must set forth specific facts supported by
competent evidence. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986); Far Out Prods., Inc. v.
Oskar, 247 F.3d 986, 997 (9th Cir. 2001). On a motion
for summary judgment, the evidence is viewed in the light
most favorable to the nonmoving party. Robi v. Reed,
173 F.3d 736, 739 (9th Cir. 1999). “A fact issue is
genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1061 (9th Cir. 2002) (quotation omitted). “The
non-moving party has failed to meet its burden if the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party.” Intel Corp. v.
Hartford Accident & Indem. Co., 952 F.2d 1551, 1558
(9th Cir. 1991) (quotation omitted). The substantive law
governing a claim or defense determines whether a fact is
material. Moreland v. Las Vegas Metro. Police
Dep't, 159 F.3d 365, 369 (9th Cir. 1998). In
evaluating a motion for summary judgment, the court must draw
all reasonable inferences in favor of the nonmoving party,
and may neither make credibility determinations nor perform
any weighing of the evidence. Anderson, 477 U.S.
242, 248 (1986).
Motion for Certification
Rule 83-15 provides the procedure whereby this Court can
certify a question to the Oregon Supreme Court. “For
purposes of this rule, the Court is guided by the
certification criteria set forth in Western Helicopter
Services, Inc., v. Rogerson Aircraft Corporation, 311
Or. 361, 811 P.2d 627 (1991).” L.R. 83-15(a).
Procedurally, Local Rule 83-15 first requires that a party
seeking to have a question certified serve a motion and
memorandum. L.R. 83-15(b)(1). “If the assigned trial
judge (district, bankruptcy, or magistrate judge) believes
that certification of a question to the Oregon Supreme Court
is appropriate, he or she will refer that recommendation to
the Chief Judge.” L.R. 83-15(b)(2)(A). “Upon
receipt of the recommendation, the Chief Judge will confer
with other members of the Court. If the Court concurs, the
Chief Judge will certify the question to the Oregon Supreme
Court.” L.R. 83-15(b)(2)(B).
Helicopter Services states five mandatory criteria,
based on Oregon's certification law, Or. Rev. Stat.
§§ 28.200-28.255, that a certified question must
meet before a court may ...