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Aquila v. Nationwide Mutual Insurance Co.

December 15, 2008


The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge


I. Introduction

Plaintiff Christian Aquila, Sr. ("Aquila Sr.") brought this action against Defendant Nationwide Mutual Insurance Company (alternatively "Nationwide" or "Defendant"). The complaint was filed in the United States District Court for the Eastern District of Pennsylvania and assigned to the Honorable Anita B. Brody.*fn1 On May 9, 2008, 2008, the parties consented to Magistrate Judge jurisdiction and the matter was transferred to this Court. (Doc. 48). By a second amended complaint filed on August 20, 2008 (Doc. 68), Milena Dobrikovic ("Dobrikovic"), the former wife of Aquila Sr. (collectively "Plaintiffs"), and their son Christian Aquila Jr. ("Aquila Jr."), were added as Plaintiffs.*fn2

Presently before the Court is Nationwide's motion (Doc. 75) pursuant to Fed. R. Civ. P. 56(b) arguing that it is entitled to judgment as a matter of law on the claims asserted by Aquila Sr. and Dobrikovic. Noting that Plaintiffs have failed to respond, we nonetheless consider the motion on its merits. For the reasons set out below, we will enter an Order granting summary judgment in part in Nationwide's favor upon all claims asserted within Count One, upon all claims asserted by Dobrikovic within Count Two, and upon all claims, save for one, asserted by Aquila Sr. within Count Two.

II. Factual Background*fn3

Aquila Sr. and his former wife, Milena Dobrikovic ("Dobrikovic") were the owners of a 2002 Nissan Pathfinder (the "Vehicle") which had been insured by Nationwide through an insurance policy (the "Policy") which included losses by theft. (See Policy attached to Doc. 75 at Ex. 9). On or about September 26, 2005, the Vehicle was stolen from a street-side parking spot on the 700 block of Packer Avenue in Philadelphia. (See Philadelphia Police Department Incident Report attached to Doc. 75 at Ex. 5, pg. 301). Aquila Sr. had been at work as a food concessionaire in the city's Citizens Bank Park at the time of the theft. (See Aquila Sr.'s recorded interview attached to Doc. 75 at Ex. 5, pp. 199-201). Upon his discovery of the missing Vehicle, Aquila Sr. promptly reported the incident to the Philadelphia Police and to Nationwide. (Doc. 1, ¶¶ 10-11). The police located the Vehicle two days later in the Cobbs Creek area of the city. (See Doc. 71 at Ex. 5, pg. 301). It had been seriously vandalized and burned. (Doc. 1, ¶ 12).

Upon the subsequent discovery of the Vehicle's condition, Aquila Sr. "made a claim for replacement cost" to Nationwide (the "Claim"). (Doc. 1, ¶ 13). The Claim was referred to Barbara Grabowski, one of Nationwide's claims-handling representatives, and to Adam Marakovits ("Marakovits"), a Nationwide claims investigator. (Doc. 1, ¶ 14). Marakovits subsequently undertook an investigation (the "Investigation") of the incident. (Doc. 1, ¶ 17). It is the Investigation which forms the basis of the second amended complaint.

Plaintiffs allege that over the course of the Investigation, Marakovits attempted "to harass and to intimidate the Plaintiffs" (Doc. 1, ¶ 17) and made various demeaning comments and insinuations about Aquila Sr. to him and his wife, as well as to Jeanann Dobrikovic (Dobrikovic's mother) ("Jeanann"). Specifically, Plaintiffs allege that Marakovits accused Aquila Sr. of insurance fraud, contacted Jeanann to assert that Aquila Sr. "was of 'shady' character," and generally implied that Aquila Sr. "had acted in such a manner as to cause the theft of [the Vehicle] for purposes of disposing of [the Vehicle] and collecting the insurance proceeds to pay off the loan on [the Vehicle]" (Doc. 1, ¶ 18). Plaintiffs also assert that Marakovits insisted that Aquila Sr. produce certain financial records including tax returns, payroll records, credit card payments, and "generally acted in such a manner as to accuse [Aquila Sr.] of acting in a criminal manner. (Doc. 1, ¶ 19).

Plaintiffs likewise assert that Marakovits, over the course of the investigation, contacted Dobrikovic and "demanded that she produce herself for the purposes of a deposition" so as to "harass and intimidate" her and Aquila Sr. and to "cause them to abandon" the Claim. (Doc. 1, ¶ 20). They further allege that Marakovits continued to telephone her "in an effort to . . . cause dissension" between her and Aquila Sr. (Doc. 1, ¶¶ 20-21). Marakovits allegedly "thereafter made it known to others that he suspected that [Aquila Sr.] had committed a criminal act during the time period in which the vehicle had been stolen, that [Aquila Sr.] made a false claim and that [] Marakovits was convinced that he would uncover evidence of the criminal act of [Aquila Sr.]." (Doc. 1, ¶ 24). It is also asserted that Marakovits told Dobrikovic "that his investigation uncovered criminal and fraudulent acts committed by" Aquila Sr. (Doc. 1, ¶ 24). Although Plaintiffs fail to specify the dates on which these various communications occurred, the evidence of record reveals that the final date upon which any of these communications could have occurred was, according to Dobrikovic, in "the beginning of May [2006]" and before Aquila Jr.'s birthday on May 27. (See Doc. 75 at Ex. 3, pp. 30, 33, 39-40). No witness recalled any communication with any Nationwide representative after that. (See Doc. 75 at Ex. 2, pg. 64; Ex. 3, pg. 33; Ex. 4 at pg. 15).

The Investigation was closed on April 19, 2006 with a determination that the Claim would be paid. (See Doc. 75 at Ex. 5, pg. 55). Nationwide then provided Aquila Sr.'s counsel with appropriate claim settlement documents, along with its monetary evaluation, on April 24, 2006. (See Doc. 75 at Ex. 5, pg. 54; Ex. 19). It then issued payment in the amount of $18,593.78 on May 12, 2006 (see Doc. 75 at Ex. 5, pg. 49). Nationwide also issued a subsequent payment to Aquila Sr. in the amount of $1,578.30 on May 26, 2006, as compensation for amounts owed as a result of Aquila Sr.'s payment of insurance premiums upon the Vehicle during the course of the Investigation. (Doc. 75 at 25; see also Ex. 21). Aquila Sr. signed the check and deposited or cashed it on June 1, 2006. (Doc. 75 at Ex. 21).

We do not read Nationwide to contradict the factual allegations regarding the manner of the Investigation and the alleged communications made by Marakovits. Nationwide asserts, however, and Plaintiffs do not dispute, that the Investigation was prompted by the existence of several "red flags." (See infra at 15-16). Nationwide further asserts that any delay in the eventual payment of the Claim was due, initially, to the Investigation and, subsequently, to Plaintiffs' failures to comply with routine documentation requests. Nationwide finally asserts that basis for its valuation of the Vehicle's value (a 16 page report prepared by "CCC Valuescope") was reasonable and that all amounts properly due to Aquila Sr. under the terms of the Policy were paid. In that Plaintiffs have failed to respond to these adequately supported assertions, we accept them as true. (See infra at 7-8).

III. Procedural History

By his complaint, Aquila Sr., as owner of a vehicle insured by Nationwide, alleged claims against Nationwide for libel and slander (Count I); bad faith (Count II); and violation of 42 U.S.C. § 1983 (Count III). On September 4, 2007, Nationwide filed a motion to dismiss Count III of the complaint. (Doc. 3). Judge Brody granted the motion on December 5, 2008. (Doc. 17).

Upon transfer of the matter to this Court by the consent of the parties, counsel for Aquila Sr. filed motions seeking leave to file an amended complaint on June 8, 2008 and June 10, 2008 (Docs. 52 &53), which we granted on July 17, 2008 (Doc. 57). Counsel for Aquila Sr., in turn, filed a first amended complaint on July 22, 2008. (Doc. 58). On July 30, 2008, Nationwide filed a motion pursuant to Fed.R.Civ.P. 12(e) for a more definite statement. (Doc. 60). Following an August 15, 2008 recorded telephone conference with the Court (Doc. 67) and discussion about the claimed deficiencies in the first amended complaint, Aquila Sr.'s counsel stated that he would address the deficiencies with a second amended complaint. This pleading was filed on August 20, 2008 (Doc. 68). Like the first amended complaint, it added Dobrikovic and Aquila Jr. as Plaintiffs to Count I; Dobrikovic as Plaintiff to Count II; and a new Count III asserting a "claim of bad faith damages" naming only Aquila Jr. as Plaintiff.

Nationwide then filed this motion (Doc. 75) pursuant to Fed. R. Civ. P. 56(b) on October 3, 2008 seeking summary judgment on the claims asserted by Aquila Sr. and Dobrikovic in the second amended complaint. Pursuant to our scheduling order of September 10, 2008, any response was due by October 10, 2008. (See Doc. 70). Plaintiffs failed to respond.*fn4 The motion is now ripe for our review. For the reasons set out below, we will grant in part Defendant's motion and enter judgment as a matter of law upon all claims asserted by Dobrikovic and all claims asserted by Aquila Sr., save for one.*fn5

IV. Legal Standard

Under Fed.R.Civ.P. 56(c), summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits 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." The moving party bears the initial burden of demonstrating the absence of a genuine issue of any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has done so, the party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted). Rather, the responding party must "set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial" and summary judgment is appropriate. Matsushita, 475 U.S. at 587 (citation omitted). Finally, only factual disputes "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). Factual disputes which are "irrelevant or unnecessary" to a proper consideration of the case under applicable law are insufficient to preclude a grant of summary judgment. See id.

As set out above, Plaintiffs failed to file a response to the motion. Nonetheless, pursuant to Local Civil Rule 7.1(c), motions seeking summary judgment to which the nonmoving party has failed to respond remain governed by Fed.R.Civ.P. 56(c), and may not simply be granted as unopposed. In this circumstance, the reviewing court is naturally "limited to a consideration of the pleadings filed by the parties and the exhibits filed by" the moving party. Abbdulaziz v. City of Philadelphia, Civ. A. No. 00-5672, 2001 U.S. Dist. LEXIS 16972, *7 (E.D. Pa. Oct. 18, 2001), aff'd, 47 Fed. Appx. 131 (3d Cir. 2002). By failing to respond to the motion, however, "the nonmoving party waives the right to respond to or to controvert the facts asserted in the summary judgment motion." Reynolds v. Rick's Mushroom Serv., 246 F. Supp. 2d 449, 453 (E.D. Pa. 2003) (quoting Reed v. Nellcor Puritan Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002)); see also Santana v. City of Philadelphia, Civ. A. No. 07-1657, 2008 U.S. Dist. LEXIS 53229, *3 (E.D. Pa. July 11, 2008) (quoting Reynolds for same proposition). The reviewing court, thus "should accept as true all material facts asserted and properly supported in the summary judgment motion." Reynolds, 246 F. Supp. 2d at 453 (quotation omitted).

V. Discussion

In its motion, Defendant seeks summary Judgment upon the claims asserted by both Aquila Sr. and Dobrikovic in Counts One and Two of the amended complaint. We address Defendant's motion ...

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