JEFFREY L. VIKEN, District Judge.
Toni Pochat and her husband, Sebastien Pochat,
Defendant filed a motion for summary judgment. (Docket 56). The motion for summary judgment is ripe for resolution.
Under Fed.R.Civ.P. 56(c), a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome of the case under the governing substantive law will preclude summary judgment. Id. at 248, 106 S.Ct. 2505. Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an
If a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id. However, the moving party is entitled to judgment as a matter of law if the nonmoving party has failed to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In such a case, "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. 2548.
In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The key inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.
The following factual summary is drawn from the unopposed statements of undisputed material facts of both parties and those facts "viewed in the light most favorable to the [plaintiff] opposing the motion." Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. The facts material to defendant's motion for summary judgment are as follows.
Pochats were involved in an automobile accident in Colorado on August 28, 2003. (Docket 57, ¶ 1). The accident occurred when another vehicle rear-ended Pochats' automobile. Id. at ¶ 2. Sebastien was the driver and Toni was a passenger in their vehicle. Id. at ¶ 3. At the time of the collision the other driver was an uninsured motorist. Id. at ¶ 4.
Pochats had an insurance policy with State Farm which provided coverage for injuries and damages caused by an uninsured motorist.
As a result of the accident, Toni suffered injuries and incurred medical expenses of about $9,000. (Docket 57, ¶¶ 7 and 80). Pochats' policy included medical payment coverage ("MPC") of $5,000 per person. While the record is not clear, it appears the MPC was fully paid out on Toni's medical expenses.
Toni's physical injuries included pain in her head, chest, back, and neck. (Docket 70 ¶ 6). As of May 2, 2005, Toni reached maximum medical improvement and sought no further medical treatment. (Docket 57, ¶ 10.)
On May 2, 2005, Toni's attorney sent a letter to State Farm offering to settle her UM claim
On June 14, 2005, State Farm offered to settle
On July 19, 2005, by a telefaxed letter, Toni offered to settle for $18,500, which offer would remain open until the next day at 2 p.m. Id. at ¶ 14(g). State Farm responded by a letter dated July 21 and offered $14,100. Id. at ¶ 14(h). The next day, Toni faxed a letter offering to settle for $18,400. Id. at ¶ 14(i). State Farm's letter of July 26 offered to settle for $14,150. Id. at ¶ 14(j).
On July 27, 2005, Toni faxed a letter offering to settle for $16,500 and requested a response from State Farm by 4 p.m. (MDT). Id. at ¶ 14(k). That offer was renewed the next day with a request State Farm respond by July 29 at noon (MDT). Id. at ¶ 14(l). By a letter dated July 29, State Farm offered $14,250. Id. at ¶ 14(m).
On August 2, 2005, Toni faxed a letter to State Farm indicating she would accept $14,500 to settle her UM claim so long as the check was sent by Federal Express. Id. at ¶ 14(n). On August 3, 2005, State Farm sent to Toni's attorney by Federal Express a check for $14,500, together with a letter indicating settlement of the UM claim. Id. at ¶ 14(o). Toni cashed the $14,500 check. Id. at ¶ 14(p).
On January 22, 2009, nearly three and one-half years after settlement of her
The relationship between Toni and State Farm is one based in contract. As Chief Judge Schreier wrote in the order denying defendant's motion to dismiss:
(Docket 32, pp. 5-6). Likewise, settlement of a UM claim is a contractual agreement. Drier, 409 N.W.2d at 359 ("an insured's acceptance of a check from his insurance company in settlement of a disputed sum may constitute an accord and satisfaction."). Under "special, unusual, or extraordinary situations in which unjustified coercion is used to induce a contract," a contract may be subject to recision for economic duress. Dunes, 623 N.W.2d at 489.
"[E]conomic duress ... is a relatively recent outgrowth of the common law doctrine of duress." Id. at 489 (citing Drier, 409 N.W.2d at 360). The three elements of economic duress are:
Id. at 490. To prevail on an economic duress claim, a party must meet all three elements. Id.
To establish the first element of this test "[t]here must be a demonstration of acts on the part of the [insurer] which produced economic duress." Id. The plaintiff must prove the "duress resulted from the [insurer's] wrongful and oppressive conduct and not by plaintiff's necessities." Id.
The second element of the test "requires that the circumstances permit no other reasonable alternative.... In determining whether a reasonable alternative is available, [the court must] employ an objective test .... [and] the outcome depends on the circumstances of each case." Id. The plaintiff's access to an available legal resolution is one such circumstance. Id.
The third element "requires (a) coercive wrongful acts on the part of the [insurer] and (b) a causal link between the coercive wrongful acts and the circumstances creating economic duress.... The party asserting economic duress must establish they were the victim of unlawful or unconscionable pressure." Id.
However, in response to defendant's motion for summary judgment, the plaintiff must put forth more than allegations. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Plaintiff has not done so. Plaintiff's brief resisting summary judgment makes reference to a number of economic and emotional events which caused distress in her life. See Docket 69, p. 4. Those references were to the following documents:
Id. Plaintiff argues those "financial and mental distress" issues were conveyed to and known by State Farm. Id.
There is nothing in the two letters from plaintiff's attorney, Exhibits 7 and 8 (Dockets 69-8 and 69-9), which gives notice to State Farm of plaintiff's financial or emotional distress, let alone the type of special, unusual or extraordinary distress contemplated by Drier and Dunes. Similarly, while the court believes plaintiff was experiencing a level of financial and emotional distress which nearly every person injured in any automobile accident would experience, there is no evidence those factors were disclosed to State Farm and that thereafter defendant took advantage of plaintiff's circumstances.
Plaintiff fails to present any evidence of notice or knowledge by State Farm of economic duress being imposed on her by defendant's handling of her UM claim. All the evidence before the court is to the contrary. Plaintiff had the assistance of competent legal counsel who initiated settlement discussions with State Farm once plaintiff's injuries had reached maximum medical improvement. Those settlement negotiations never reached an impasse. Rather, plaintiff continued to make significant reductions in her settlement demands. To drop plaintiff's demand from $225,000 to $16,500 in the of course just 49 days, during which State Farm was raising its counteroffers (although not at the rate or in the dollar range plaintiff's counsel may have liked), is not evidence of coercion by defendant.
Plaintiff points to Exhibit 31 (Docket 89-6) and the deposition of State Farm claims adjuster Robin Bryant. That exhibit includes the following instructions to adjusters.
Id. at pp. 2-3. An adjuster is obligated to implement this provision when the carrier and the insured have reached an "impasse." Generally, an impasse occurs when the parties are at "[a] point ... at which an agreement cannot be reached." Black's Law Dictionary 755 (7th ed., 1999).
The uncontroverted evidence is that the parties never reached an impasse in their settlement negotiations. The movement of both parties toward resolution of plaintiff's UM claim is evident by the timely responses both parties made throughout the process. Additionally, Ms. Bryant's uncontroverted testimony was no impasse occurred. (Docket 89-10, p. 46). Because there was no impasse, the advance payment of State Farm's initial offer instruction to agents, illustrated by Exhibit 31, would not be triggered. Id. The approach used by Ms. Bryant was a reasonable interpretation of defendant's obligations in this case.
Plaintiff also fails to satisfy the second prong of the economic duress test. "To establish economic duress, [plaintiff is] required to demonstrate that no reasonable alternative existed but to accede to the wrongful and coercive demands of [defendant]." Dunes, 623 N.W.2d at 492. Plaintiff had another option available if she felt State Farm was forcing her into a lowball settlement of her UM claim—that was to declare an impasse and initiate litigation for breach of contract, bad faith, and punitive damages, as she did after accepting the $14,500 settlement check.
On the third prong required to establish economic duress, plaintiff failed to present any evidence she was a "victim of unlawful or unconscionable pressure." Dunes, 623 N.W.2d at 490. The full $5,000 medical payments coverage limit was paid toward Toni's medical expenses. Additionally, State Farm made prompt responses to plaintiff's settlement demands and Toni's UM claim was resolved in a timely fashion.
Plaintiff has failed to show that under any circumstances a jury could find she was a victim of economic duress such that she would be entitled to rescind the settlement of her case. Id. "A decision to merely `acquiesce' does not rise to the level of coercion required to prove economic duress." Id. at 491.
The court finds plaintiff is bound by her acceptance of the settlement check. While State Farm never made plaintiff's acceptance of the settlement check contingent on plaintiff signing a release, the facts are undisputed the check constituted an accord and satisfaction of defendant's obligation under the policy. Drier, 409 N.W.2d at 359.
Plaintiff has failed to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. In this case, "there is no genuine issue as to any material fact and [State Farm] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2).
Based on the foregoing discussion, it is hereby
ORDERED that defendant's motion for summary judgment (Docket 56) is granted.
IT IS FURTHER ORDERED that plaintiff's complaint (Docket 1-2) is dismissed with prejudice.