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Clymo v. American States Insurance Co.

United States District Court, D. Oregon, Pendleton Division

June 7, 2018

LUANE CLYMO, Plaintiff,



         Luane 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.


         Plaintiff Clymo owned a residence in Haines, Oregon (“the Property”). Compl. ¶ 3.[1]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. ¶¶ 8-13.

         Plaintiff 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.

         Plaintiff 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. ¶¶ 26-29.

         Plaintiff 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.

         Plaintiff 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).


         I. Motion for Summary Judgment

         Summary 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).

         II. Motion for Certification

         Local 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).

         Western Helicopter Services states five mandatory criteria, based on Oregon's certification law, Or. Rev. Stat. ยงยง 28.200-28.255, that a certified question must meet before a court may ...

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