Butters v. Travelers Home & Marine Ins. Co.

Full title: VINCENT D. BUTTERS, Plaintiff, v. THE TRAVELERS HOME AND MARINE INSURANCE…

Court: United States District Court, District of Oregon

Date published: Apr 22, 2024

3:22-cv-00726-SB (D. Or. Apr. 22, 2024)

Opinion

3:22-cv-00726-SB

04-22-2024

VINCENT D. BUTTERS, Plaintiff, v. THE TRAVELERS HOME AND MARINE INSURANCE COMPANY, Defendant.

Hon. Stacie F. Beckerman, United States Magistrate Judge

FINDINGS AND RECOMMENDATION

Hon. Stacie F. Beckerman, United States Magistrate Judge

Vincent Butters (“Plaintiff”) filed this action against his homeowners policy insurer, The Travelers Home and Marine Insurance Company (“Defendant”), alleging claims for fraudulent misrepresentation and negligence per se. Defendant moves for summary judgment on both claims. (ECF No. 69.)

The Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1), but not all parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636. For the reasons explained below, the Court recommends that the district judge grant Defendant's motion for summary judgment.¹

1 Given the parties' and Court's familiarity with the factual and procedural history of this case, the Court describes it below only as necessary to address the issues that the parties raise in their motion papers.

LEGAL STANDARDS

Summary judgment is proper if “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). At the summary judgment stage, the court views the facts in the light most favorable to the non-moving party, and draws all reasonable inferences in favor of that party. See Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

PRELIMINARY MATTERS

Before turning to the parties' arguments regarding the merits of Plaintiff's claims, the Court must address two preliminary matters: (1) this district's conferral requirement, and (2) Defendant's evidentiary objections. (See Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. (“Pl.'s Resp.”) at 1-3, ECF No. 73; Def.'s Reply Mem. Supp. Mot. Summ. J. (“Def.'s Reply”) at 1-5, ECF No. 74.)

I. CONFERRAL REQUIREMENT

Plaintiff argues that the Court should deny Defendant's motion for summary judgment because Defendant failed to confer in good faith before filing its motion. (Pl.'s Resp. at 1-3.) The Court declines to recommend that the district judge deny Defendant's motion on this ground.

Local Rule 7-1(a) provides, in relevant part, that “the first paragraph of every motion must certify that . . . the parties made a good faith effort through personal or telephone conferences to resolve the dispute and have been unable to do so.” LR 7-1(a)(1)(A). Local Rule 7-1(a) also provides that “[t]he Court may deny any motion that fails to meet this certification requirement.” LR 7-1(a)(3).

During the parties' initial case management conference, the Court waived the local rule “requirement to confer by telephone,” and advised that “the parties may confer by electronic mail going forward.” (ECF No. 29.) Consistent with this understanding, Defendant certified that it made a “good faith effort . . . to confer with Plaintiff concerning the issues raised in [its] motion, by email on October 31, 2023,” but “[t]he parties were unable to resolve those issues[.]” (Def.'s Mot. Summ. J. (“Def.'s Mot.”) at 1, ECF No. 69; Suppl. Decl. David Ryan Supp. Def.'s Mot. Summ. J. (“Suppl. Ryan Decl.”) ¶ 2, ECF No. 75; id. Ex. 123 at 1, attaching the October 31, 2023 conferral email).

Plaintiff argues that Defendant did not make a good faith effort to confer because it waited until “the last possible date” (i.e., October 31, 2023, the dispositive motions deadline), and filed its motion three hours after emailing Plaintiff. (See Pl.'s Resp. at 2, referring to ECF Nos. 56, 69.) Plaintiff adds that Defendant “made sure that the . . . parties [would not] be able to properly confer by providing an impossibly narrow window of time for [the parties] to do so.” (Pl.'s Resp. at 2.)

The Court concludes that Defendant's conferral attempt was sufficient under the circumstances presented. It is not uncommon for parties to wait until the dispositive motions deadline to confer on and file summary judgment motions. Plaintiff claims that Defendant's actions “denied him the potential benefits of a conferral,” but does not appear to dispute that he received Defendant's email or explain why he did not (or could not) respond on October 31, 2023. (See Pl.'s Resp. at 1-3.) In any event, the Court is persuaded that additional efforts to confer would have been futile, in part because when Defendant filed its motion for summary judgment, Plaintiff's motion for judgment on the pleadings (i.e., a motion seeking judgment in Plaintiff's favor on the same underlying claims) was still pending before this Court. See generally Gerke v. Travelers Cas. Ins. Co. of Am., 815 F.Supp.2d 1190, 1200 (D. Or. 2011) (declining to deny the defendant's motion on the ground that it failed to satisfy the conferral requirement and noting that the court was “persuaded that additional efforts to confer . . . would have been futile,” in part because of the parties' well-documented disagreement on the subject matter).

For these reasons, the Court declines to recommend that the district judge deny Defendant's motion on the ground that Defendant failed adequately to satisfy the conferral requirement.

II. EVIDENTIARY OBJECTIONS

Defendant raises evidentiary objections regarding the 89-page exhibit that Plaintiff attached to his response. (See Def.'s Reply at 1-5; Pl.'s Ex. 1 at 1-89, ECF No. 73-1, which is Bates-stamped as “TRAV000001” through “TRAV000089”). The Court overrules Defendant's objections.

A. Plaintiff's Exhibit 2

The Court overrules as moot Defendant's objection to Plaintiff's “Exhibit 2.” (See Def.'s Reply at 2.) In his response, Plaintiff cited “Exhibit 2” in support of his statement that Defendant sent an “estimate and payment” to Plaintiff's husband on February 21, 2022, the latter of which “included money for a dumpster, debris bags, and laborers to remove the items that were not salvageable from the property.” (Pl.'s Resp. at 6.) Defendant objected to Plaintiff's “Exhibit 2” on the ground that it was “not part of the record,” noting that “[t]his missing/untimely exhibit (if it exists)-along with related argument-should be stricken[.]” (Def.'s Reply at 3.) In accordance with Local Rule 56-1(b), Plaintiff filed a surreply on December 12, 2013, explaining that his reference to “Exhibit 2” was a typographical error and he intended only to cite “[E]xhibit 1” (i.e., the 89-page attachment) in support of his statement regarding the check that Defendant sent to his husband. (Pl.'s Surreply Opp'n Def.'s Mot. Summ. J (“Pl.'s Surreply”) at 4, ECF No. 76.) Given this clarification, the Court overrules as moot Defendant's objections about a “missing/untimely exhibit.”

B. Plaintiff's Exhibit 1

Defendant objects to Plaintiff's 89-page exhibit, which Plaintiff cites as “Exhibit 1” and is Bates-stamped as “TRAV000001” through “TRAV000089.” (See Def.'s Reply at 1-2, 4-5; Pl.'s Resp. at 6; Pl.'s Ex. 1 at 1, 89.) The Court overrules Defendant's objections.

1. Authenticity

As the parties acknowledge, Plaintiff's Exhibit 1 is the “claim notes [that Defendant] produced . . . in response to [P]laintiff's discovery requests.” (See Def.'s Reply at 4, stating as much and adding that Exhibit 1 is “comprised of a string of claim notes running from January 24, 2022 to May 2, 2023”; see also Pl.'s Surreply at 3, representing that “Exhibit 1” consists of “documents [that Defendant] produced during discovery”). Given this fact and in accordance with Ninth Circuit case law, Defendant does not challenge the authenticity of Exhibit 1. (See Def.'s Repyl at 4, citing Maljack Prods., Inc. v. Good Times Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir.1996)); cf. Maljack, 81 F.3d at 889 n.12 (“MPI claims the district court should not have considered MPI documents which were attached to the declaration of GoodTimes' attorney, because the attorney could not authenticate them. The district court did not err in considering the documents as indicators of MPI's motivation, however; MPI produced the documents to GoodTimes, many of the documents were on MPI letterhead and MPI does not contest their authenticity.”); see also 31 Charles Alan Wright et al., Federal Practice and Procedure § 7105 (2d ed. Aug. 2023 update) (“Authentication can . . . be accomplished through judicial admissions such as stipulations, pleadings, and production of items in response to subpoena or other discovery request.”).

2. Relevance and Prejudice

Although it does not challenge Exhibit 1's authenticity, Defendant objects to Exhibit 1 on “[r]elevance/[p]rejudice” grounds. (See Def.'s Reply at 4-5.) Defendant's relevance/prejudice objection is based on the fact that Exhibit 1 includes claim notes about policy benefits that “have never been at issue in this action,” or “not been at issue since the Court dismissed all contract claims.” (Id.)

The foregoing is no more than a relevancy objection. (See id. at 5, adding only that “[t]here is no longer any relevance to the notes referring to contract benefits”). As the Ninth Circuit has explained, relevancy objections are generally unnecessary at the summary judgment stage:

[O]bjections for relevance are generally unnecessary on summary judgment because they are “duplicative of the summary judgment standard itself.” Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006) .... On summary judgment, a court must determine whether the evidence viewed in the light most favorable to the non-moving party creates a “genuine dispute as to any

material fact” that must be resolved at trial. FED. R. CIV. P. 56(a). And under Federal Rule of Evidence 401, evidence is relevant if it “has any tendency to make a fact more or less probable” and that fact “is of consequence in determining the action.” FED. R. EVID. 401. Putting these two standards together, if evidence submitted on summary judgment could create a genuine dispute of material fact, it is, by definition, “of consequence in determining the action,” and therefore relevant. Id. Conversely, if the submitted evidence does not create a genuine dispute of material fact, there is no need for the court to separately determine whether it is relevant because, even assuming it is not, it will not affect the ultimate summary judgment ruling. We therefore agree with [Burch's] cogent observation that parties briefing summary judgment motions would be better served to “simply argue” the import of the facts reflected in the evidence rather than expending time and resources compiling . . . lists of relevance objections. Burch, 433 F.Supp.2d at 1119.

Sandoval v. Cnty. of San Diego, 985 F.3d 657, 666 (9th Cir. 2021).

The Court overrules Defendant's relevancy objection because it is duplicative of the summary judgment standard itself, and the Court has considered the parties' arguments with respect to the significance of facts reflected in the evidence. See OTRA, LLC v. Am. Safety Indem. Co., No. 3:20-cv-01063-SB, 2020 WL 6828738, at *6 (D. Or. Nov. 20, 2020) (overruling a “relevance objection because it [was] duplicative of the summary judgment standard itself” (citing Doutherd v. Montesdeoca, No. 2:17-cv-02225, 2020 WL 6043952, at *4 (E.D. Cal. Oct. 13, 2020))). The Court also notes that Defendant does not suggest that Plaintiff relies on irrelevant portions of claim notes (i.e., notes about benefits that were never or are no longer at issue), and in fact states that Exhibit 1 “corroborates the chronology described in [Defendant's own] declarations[.]” (See Def.'s Reply at 2, 4-5.)

3. Hearsay

In addition to its relevancy objection, Defendant also objects to Exhibit 1 on hearsay grounds. (See Def.'s Reply at 4.) As explained below, the Court overrules Defendant's hearsay objection.

The district court's decision in Tsur v. Intel Corporation, 648 F.Supp.3d 1292, 1302-03 (D. Or. 2022) (Simon, J.), is instructive here. In that case, the defendant “object[ed] that much of the evidence that [the plaintiff] relie[d] upon in his opposition to [the defendant's] motion for summary judgment [was] unauthenticated, irrelevant, hearsay, not submitted under penalty of perjury, or inadmissible for other reasons.” Id. The district court explained that “[a]t summary judgment, . . . [a court] may consider ‘evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial, such as by live testimony.'” Id. at 1303 (quoting JL Beverage Co. v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016)). The district court further explained that “[i]n evaluating a nonmoving party's facts offered at summary judgment, [a court] does ‘not focus on the admissibility of the evidence's form . . . [and] instead focus[es] on the admissibility of its contents.'” Id. (quoting Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)). To illustrate, the district court discussed the Ninth Circuit's opinion in Fraser:

[I]n Fraser the Ninth Circuit considered a diary's contents as evidence to defeat a motion for summary judgment, despite a hearsay challenge, because the contents of the diary “could be admitted into evidence at trial in a variety of ways.” Fraser, 342 F.3d at 1037. The court noted, for example, that the witness “could testify to all the relevant portions of the diary from her personal knowledge.” Id. “Because the diary's contents could be presented in an admissible form at trial, [the court could] consider the diary's contents in the [movant's] summary judgment motion.” Id.

Id.

With these principles in mind, the district court returned to the Tsur defendant's evidentiary objections. Id. at 1303-04. After noting that the plaintiff attached declarations to his surreply that “cure[d] any authentication deficiency that his earlier filings may have contained,” the district court explained that the “[t]he challenged deficiencies . . . may be cured in [the plaintiff's] expert report or other evidence at trial,” and the defendant did not argue that the plaintiff's evidence could not “be submitted in an admissible form at trial.” Id. at 1304 (emphasis added). Based on these observations, the district court overruled the defendant's evidentiary objections. Id.

Defendant here objects to Plaintiff's evidence (i.e., Exhibit 1, the claim notes that Defendant produced in discovery) on hearsay grounds. (See Def.'s Reply at 4.) In support, Defendant emphasizes that none of the claim note authors have been “established as a person authorized to make statements in a representative capacity for [D]efendant,” and that the claim “notes include numerous examples of hearsay-within-hearsay, such as third-party email messages imported into the notes and summaries of conversations with third parties, all of which are inadmissible.” (Id.) (footnotes omitted). Importantly, however, Defendant does not argue that Plaintiff's evidence could not be submitted in an admissible form or otherwise cured at trial. Thus, consistent with Tsur, the Court overrules Defendant's hearsay objection to Plaintiff's Exhibit 1.

The Court also overrules Defendant's hearsay objection because the Court's consideration of the challenged evidence did not impact its recommendation herein. See Perez-Denison v. Kaiser Found. Health Plan of the Nw., 868 F.Supp.2d 1065, 1088-89 (D. Or. 2012) (“[A]ny necessary rulings on [the defendant's] evidentiary objections should be denied as moot, because the evidence moved against does not change the recommendation that [the defendant's] motions . . . should be granted.”); see also Stoddard-Nunez v. City of Hayward, 817 Fed.Appx. 375, 378 (9th Cir. 2020) (vacating the district court's grant of a summary judgment motion and declining to “decide whether any of the evidence submitted by [the plaintiff] would be admissible at trial” because “at the summary-judgment stage, ‘[courts] do not focus on the admissibility of the evidence's form . . . [and] instead focus on the admissibility of its contents'” (quoting Fraser, 342 F.3d 1036)).

DISCUSSION

Defendant moves for summary judgment on Plaintiff's fraudulent misrepresentation and negligence per se claims. (See Def.'s Mot. at 1, 11, 18.) The Court concludes that there are no genuine issues of material fact precluding summary judgment in Defendant's favor on Plaintiff's remaining claims. The Court therefore recommends that the district judge grant Defendant's motion.

I. FRAUDULENT MISREPRESENTATION

A. Applicable Law

Under Oregon law, a fraud claim has five “essential elements.” Strawn v. Farmers Ins. Co. of Or., 258 P.3d 1199, 1209 (Or.), adhered to on reconsideration, 256 P.3d 100 (Or. 2011); see also Knepper v. Brown, 195 P.3d 383, 387 & n.5 (Or. 2008) (recognizing that the Oregon Supreme Court's “past cases have referred to . . . nine elements of a claim for tortious fraud,” but its “more recent cases have employed a more abbreviated list of [five] elements” (citing U.S. Nat'l Bank of Or. v. Fought, 630 P.2d 337, 348 (Or. 1981) and Riley Hill Gen. Contractor v. Tandy Corp., 737 P.2d 595 (Or. 1987))). Those five elements are: (1) “the defendant made a material misrepresentation that was false,” (2) “the defendant did so knowing that the representation was false,” (3) “the defendant intended the plaintiff to rely on the misrepresentation,” (4) “the plaintiff justifiably relied on the misrepresentation,” and (5) “the plaintiff was damaged as a result of that reliance.” Strawn, 258 P.3d at 1209 (citing Handy v. Beck, 581 P.2d 68, 71 (Or. 1978)).

B. Analysis

Defendant argues that Plaintiff has not produced (and cannot produce) evidence sufficient to establish the elements essential to his fraudulent misrepresentation claim, and thus Defendant is entitled to summary judgment. (See Def.'s Mot. at 13, “Summary judgment is warranted because Plaintiff cannot satisfy the essential elements of his claim.”). As explained below, the Court agrees.

1. The Reckless Disregard Theory Generally

Plaintiff's fraudulent misrepresentation claim is based on a theory of reckless disregard. See Butters v. Travelers Indem., Co., No. 3:22-cv-00726-SB, 2023 WL 3559472, at *5 (D. Or. May 18, 2023) (rejecting Defendant's argument that Plaintiff failed plausibly to allege a “claim of fraudulent misrepresentation based on a theory of reckless disregard”); see also Webb v. Clark, 546 P.2d 1078, 1080 n.2 (Or. 1976) (“Fraud can never be predicated upon a promise to do something in the future unless it is alleged and proven that, at the time of the making of the promise, there was no present intention of performance or, alternatively, that the promise was made with reckless disregard as to whether the promissor could or could not perform.”) (emphasis added) (citations omitted). “There appears to be no precise formulation in Oregon to determine whether a party's conduct was reckless enough to satisfy the intent element for fraudulent misrepresentation under a theory of reckless disregard.” Butters, 2023 WL 3559472, at *5.

Although there appears to be no precise formulation to make such a determination, “[c]ircumstances suggesting reckless disregard . . . can be found ‘where representations are made by one who is conscious that he has no sufficient basis of information to justify them.'” Id.(quoting Riley Hill, 737 P.2d at 605). The Oregon Supreme Court, for example, has “noted that a jury could find reckless disregard when a college repeatedly told a student that materials he required were ‘on order' and ‘will be here,' despite a professor commenting that ‘the stuff had been on order for approximately three years.'” Id. (quoting Dizick v. Umpqua Cmty. Coll., 599 P.2d 444, 445-46 (Or. 1979)). Additionally, “[t]he Oregon Supreme Court [has] concluded that reckless disregard could be found in a case of misrepresentations when a medical foundation offered a job to a foreign doctor but withheld the fact that the program supporting this job was almost certainly ending.” Id. (citing Elizaga v. Kaiser Found. Hosps., 487 P.2d 870, 873-74 (Or. 1971)).

The Oregon Court of Appeals has similarly “upheld a finding of reckless disregard when the defendant ‘took affirmative actions both before and after his many representations and assurances that were completely inconsistent with the intentions expressed and the assurances given by him to [the] plaintiff[.]'” Id. (quoting Hocks v. Hocks, 767 P.2d 1369, 1372 (Or. Ct. App. 1989)); see also Hocks, 767 P.2d at 1372 (noting that the plaintiff's father's “initial promise [was] that, if [the] plaintiff [son] came to work for the family business at a low salary, he would be earning an interest in the business,” and the promise was “repeated frequently over the years in one form or another”). The Oregon Court of Appeals has also “upheld a claim of reckless disregard when a developer's attorney drafted an agreement containing misrepresentations ‘with reckless disregard of the falsity of the representation in the hopes that [the] plaintiffs would agree to invest.'” Butters, 2023 WL 3559472, at *5 (quoting Cruz v. Hudler, 267 P.3d 176, 182 (Or. Ct. App. 2011)).

2. Plaintiff's Reckless Disregard Theory

Defendant issued a homeowner's policy to Plaintiff and Plaintiff's husband, Jeffrey Butters, which covered the period from June 19, 2021 through June 19, 2022. (Decl. Aaron Stone Supp. Def.'s Mot. Summ. J. (“Stone Decl.”) ¶ 2, ECF No. 70.) On January 24, 2022, after a fire damaged his home, shed, and personal property, Plaintiff submitted an insurance claim to Defendant under the homeowner's policy. (Id. ¶ 3; id. Ex. 116 at 125; Decl. Raquel Cruz Supp. Def.'s Mot. Summ. J. (“Cruz Decl.”) ¶¶ 3, 5-6, 12, ECF No. 71; id. Ex. 108 at 3-5; id. Ex. 118 at 1-33.)

On February 1, 2022, Defendant assigned Raquel Cruz (“Cruz”), an outside claim contents representative, to investigate and adjust the “[c]ontents” portion of Plaintiff's claim, also known as “Coverage C - Personal Property.” (Cruz Decl. ¶¶ 1-3; Stone Decl. ¶ 9.) The policy limit for the contents portion of the claim was $117,509.00, which increased to $119,780.84 because of an “inflation adjustment endorsement.” (Cruz Decl. at 2 n.1; Stone Decl. ¶ 9; id. Ex. 101 at 2.)

Plaintiff's reckless disregard theory is based on representations that Defendant made to Plaintiff during the course of its investigation and verification of Plaintiff's contents claim. Specifically, Plaintiff alleges that Defendant “represented that [Plaintiff's] damaged property could not be salvaged and told [Plaintiff] that he could throw these items away,” Defendant “paid for [Plaintiff's] ‘non-salvage activities' that same day,” he “relied on [Defendant's] representation by disposing of his damaged property,” and Defendant “made this representation without examining the contents of [Plaintiff's] inventory in person.” Butters, 2023 WL 3559472, at *5 (quoting Second Am. Compl. (“SAC”) ¶ 5.8, ECF No. 22-1).² Plaintiff “also alleges that at least several weeks later, [Defendant] sent [Plaintiff] a letter stating that [Defendant] wanted to walk through [Plaintiff's] house and examine his now-disposed-of inventory to determine whether anything could be salvaged or cleaned, rather than rely on the inventory spreadsheet that [Plaintiff] had provided.” Id. Plaintiff in turn claims that Defendant “acted in reckless disregard by misrepresenting that [Plaintiff] could not salvage his damaged property, as shown in part by [Defendant] paying [Plaintiff] to remove that property but later requesting an in-person assessment.” Id.

2 Plaintiff's allegations focus on Cruz's actions, representations, and omissions. (See SAC ¶¶ 5.1-.14.).

3. Disposition

There are no genuine issues of material fact that preclude summary judgment in Defendant's favor on Plaintiff's fraudulent misrepresentation claim, which is based on a reckless disregard theory.

Defendant argues that while “there might be no ‘precise formulation' . . . for evaluating whether a promise is made in reckless disregard that it is misleading,” the Oregon Supreme Court's Elizaga decision “recited a guiding principle” for making such an evaluation. (Def.'s Mot. at 12.) Specifically, the Oregon Supreme Court noted that “[a] failure to perform a promise is not a basis for an action for fraud,” but “[m]aking a promise, . . . with the knowledge that it probably cannot be performed or with reckless disregard whether the promisor can or cannot perform[,] can be the basis for an action of fraud.” (Id. at 12-13, quoting Elizaga, 487 P.2d at 874.)

Defendant argues that neither Plaintiff's allegations nor the record evidence satisfies the Elizaga standard on promises that constitute actionable fraud. (Id. at 13.) Like Plaintiff's operative complaint, Defendant focuses on Cruz's actions and representations with respect to Plaintiff's contents claim and personal property inventory, whether Plaintiff's damaged property could or could not be salvaged, and Plaintiff's ability to dispose of damaged property. (See id. at 13, 15-16.) From Defendant's perspective, there is “no evidence suggesting that . . . Cruz's actions (requesting an inventory, issuing advance payment for contents manipulation) were performed with conscious indifference to information she might request of Plaintiff in the future to support payment,” as Cruz “repeatedly distinguished between disposal of debris/non-salvage and further evaluation of damaged-but-not-destroyed items that potentially could be cleaned, restored, or repaired.” (Id. at 13.) Defendant adds that there is “no evidence to support an inference that . . . Cruz recklessly disregarded the truth/risk that her statements might mislead Plaintiff.” (Id. at 15.)

Plaintiff disagrees with Defendant and emphasizes at the outset that he “want[s] to be sure [that Defendant] and the Court know exactly what [he is] alleging.” (Pl.'s Resp. at 4.) Plaintiff explains that although Defendant claims that its delayed payment of the contents policy limit (i.e., $117,509.00, which increased to $119,780.84 because of an inflation adjustment endorsement) was due to Plaintiff's failure to cooperate with Defendant's investigation, the record evidence demonstrates that Defendant “knew [that it] owed [Plaintiff] a maximum payment the entire time [that Defendant] claimed [that it was] investigating, and even months before[hand], [yet Defendant] refused to pay [the maximum] unless [Plaintiff] engaged in a quid pro quo.” (Id.)

With respect to when and how Defendant knew that it owed Plaintiff the contents policy limit, Plaintiff directs the Court to “two important numbers”: (1) the $119,780.84 contents policy limit, which Plaintiff refers to as the “Limit of Liability” or “LOL,” and (2) Plaintiff's and Defendant's calculations of the actual cash value (“ACV”) of Plaintiff's personal property damages (i.e., $172,099.70 and $133,528.29, respectively), both of which exceeded the contents policy limit.³ (Id. at 4-5; see also Stone Decl. ¶ 33; id. Ex. 116 at 126; id. Ex. 117 at 1, providing the ACVs). Plaintiff also directs the Court to several pages of his exhibit, which, according to Plaintiff, demonstrate that Defendant “acknowledged that . . . [P]laintiff was due a full payment or that all of the contents of [Plaintiff's] home were not salvageable . . . prior to [Defendant's] request for a [third] walkthrough on [March 17, 2022].” (Pl.'s Resp. at 6, citing Pl.'s Ex. 1 at 52, 68-69, 73-74, 79, 81.)

3 Black's Law Dictionary and Merriam-Webster respectively define ACV as “replacement cost minus normal depreciation” and “money equal to the cost of replacing lost, stolen, or damaged property after depreciation.” Sos v. State Farm Mut. Auto. Ins. Co., No. 2111769, 2023 WL 5608014, at *22 (11th Cir. Aug. 30, 2023) (simplified); (see also Cruz Decl. Ex. 104 at 4, reflecting that in a property estimate “[g]uide” that Defendant provides to its insureds, Defendant states that ACV is the “estimated value of the item or damage at the time of the loss,” and “[g]enerally, ACV is calculated as Replacement Cost Value . . . minus Depreciation”).

With respect to his purported refusal to “engage[] in a quid pro quo” and without citing any evidence, Plaintiff states that because Defendant “uses the amount of the claim to compute [its] loss ratios” and “reports the loss to consumer credit agencies[,] . . . the Oregon Division of Financial Regulation[,] and . . . the National Association of Insurance Commissioners,” Defendant conditioned its payment of the contents policy limit on Plaintiff's acceptance of Defendant's decision to “artificially lower[] the ACV of [his contents] claim[.]” (Id. at 5) (simplified). Plaintiff also states that Defendant was “committing insurance fraud by undervaluing the ACV of [his] claim and reporting those false numbers out to government agencies,” and that Defendant delayed payment of the contents policy limit because Plaintiff “refused to comply with [such a] quid pro quo” and “participate in [Defendant's] cooking [of] the books[.]” (Id.)

Plaintiff's claims about insurance fraud and a quid pro quo are, at best, mere speculation. Plaintiff cites no evidence supporting these statements, and the Court can find none. A nonmovant cannot defeat summary judgment with mere allegations, speculation, conjecture, or conclusory statements. See Loomish v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016) (“Mere allegation and speculation do not create a factual dispute for purposes of summary judgment.”) (simplified); Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003) (“[A nonmovant] cannot defeat summary judgment with . . . unsupported conjecture or conclusory statements.”); O.S.C. Corp. v. Apple Comp., Inc., 792 F.2d 1464, 1466-67 (9th Cir.1986) (“We scrutinize the evidence and reasonable inferences to determine whether there is sufficient probative evidence to permit a finding in favor of the opposing party based on more than mere speculation, conjecture, or fantasy.”) (simplified).

The Court also agrees with Defendant that the district judge effectively disposed of these claims. (See Def.'s Reply at 7-8, addressing the “wild speculation about fraud based on an insurer's ‘loss ratios'” and quoting the district judge's decision). As the district judge explained at the motion to dismiss stage, Plaintiff “does not plausibly allege facts in support of his conclusory allegations that [Defendant] asked [him] to commit insurance fraud, punished him for refusing to do so, stalled his payments, knowingly created inaccurate insurance documents, or harassed him through an unwarranted fraud investigation or otherwise.” Butters, 2023 WL 3559472, at *4 (footnote omitted).

The record evidence also supports the district judge's related observations about Defendant's payments:

As for [Plaintiff's] allegation that [Defendant] stalled insurance payments, [Plaintiff previously] allege[d] that [Defendant] paid [Plaintiff] $224,235.70 for his dwelling within six weeks of the fire that destroyed [Plaintiff's] house. For the contents, [Plaintiff] allege[d] that [Defendant] paid $14,397.72 to [Plaintiff's] husband for personal property non-salvage efforts within a few weeks and made another personal property partial payment three months after the fire in April, while the parties were disputing the type and value of the contents. The parties' subsequent status reports reflect that [Defendant] paid the contents policy limits- in full-three months later in July, although [Plaintiff] disputes the $14,397.72 paid directly to his husband. Given [Defendant's] ongoing payments, including while [Defendant] was asking for supporting documentation from [Plaintiff], [Plaintiff's] allegations are insufficient to show intentional stalling.

Id. at *4 n.4; (cf. Cruz Decl. ¶¶ 9, 24; id. Exs. 103-04, 108, 114; Stone Decl. ¶¶ 15, 24-33; id.

Ex. 117, showing that Defendant paid Plaintiff $224,235.70 for his dwelling and other structures within six weeks of the fire, directly deposited $14,397.72 into the Butters' previously provided bank account on February 21, 2022, issued an additional payment of $19,027.00 on April 26, 2022, and issued a final payment of $92,345.16 on July 12, 2022, thus exhausting the contents policy limit).

Given the above observations and evidence, the Court finds that to the extent Plaintiff's fraudulent misrepresentation claim is based on speculation about insurance fraud, a quid pro quo, or intentional stalling of Plaintiff's contents payments, Defendant is entitled to summary judgment.

The Court also finds unconvincing Plaintiff's reliance on Defendant's ACV calculation. As Plaintiff notes, Defendant's and Plaintiff's respective ACV calculations ($133,528.29 and $172,099.70) exceeded the contents policy limit ($119,780.84). (Pl.'s Resp. at 4-5; Stone Decl. ¶ 33; id. Ex. 116 at 126; id. Ex. 117 at 1.) Plaintiff suggests that these “important numbers” support his assertion that Defendant “knew [that it] owed [him] a maximum payment the entire time [that it] claimed [that it was] investigating, and even months before[hand.]” (Pl.'s Resp. at 4.)

Contrary to Plaintiff's arguments, Defendant's ACV calculation was the product of its investigation and attempts independently to verify Plaintiff's claimed personal property damage, and based in part on materials that Plaintiff provided to Defendant in June 2022, several months into the claims process. (See Stone Decl. ¶¶ 14-24, 30-33; id. Ex. 117 at 1.) The materials Plaintiff provided to Defendant in June 2022 included “an estimate for artwork and purchase logs from Lowe's and Home Depot for tools and building materials (which potentially could be covered under one or more Coverages A, B, or C).” (Id. ¶ 31; id. Ex. 116.) Given these facts, Defendant's calculation does not suggest that it knew the “entire time” that Plaintiff was entitled to the policy limit.

The Court likewise finds unconvincing the records upon which Plaintiff relies in arguing that Defendant “acknowledged that . . . [P]laintiff was due a full payment or that all of the contents of [Plaintiff's] home were not salvageable . . . prior to [the] request for [another] walkthrough on [March 17, 2022].” (Pl.'s Resp. at 6, citing Pl.'s Ex. 1 at 52, 68-69, 73-74, 79, 81.) The records that Plaintiff cites demonstrate only that Defendant believed that Plaintiff would likely receive the contents policy limit given the amount of unsalvageable property at issue, but Defendant needed (and requested) additional information from Plaintiff for verification:

• February 1, 2022: a technical specialist, Richard Jones (“Jones”), completed an on-site inspection at Plaintiff's property and a report about the estimated damages to Plaintiff's home and shed. (Pl.'s Ex. 1 at 81; Stone Decl. ¶¶ 6-8.) Jones also noted that the “contents inside the home are mostly nonsalvageable” and an “[i]nventory list will need to be completed.” (Pl.'s Ex. 1 at 81) (emphasis added).

• February 1, 2022: Cruz noted that she received a new file on Plaintiff's contents claim, the content policy limit was approximately $117,000.00, and “due to the extent of the damage and the amount of items [Plaintiff] has amongst the premise, it is possible that this loss could exceed policy limits.” (Id. at 79) (emphasis added) (all caps omitted). Cruz added that Plaintiff's shed was “full of electronics, [including] . . . multiple [televisions] and laptops,” and “will require [a] recreate,” and the case “would be a large pack out invoice with limits that may be insufficient once you begin to factor in the nonsalvage payment that would be due for the affected items (and there are a lot).” (Id.) (emphasis added).

• February 12, 2022: Cruz noted that a virtual tour “shows that just about everything is nonsalvage[able] in the residence.” (Id. at 74) (all caps omitted). Cruz did not address items in or around the shed or “amongst the premise.” (Id. at 74, 79.)

• February 15, 2022: Cruz spoke with Plaintiff about her preliminary review of Plaintiff's “claim for contents coverage.” (Id. at 73.) Cruz noted that she “confirmed that the items in the shed and dwelling are all personally owned by [Plaintiff] or [Plaintiff's husband].” (Id.) (all caps omitted). Cruz stated that she advised Plaintiff that “the items in the shed . . . will require a recreate,” she would “send [Plaintiff an] excel [spreadsheet] to complete,” and “if [Plaintiff] has receipts, please send [them] to help.” (Id.) Cruz also noted that she advised Plaintiff that she would have a contractor “inventory the main dwelling” and “more than likely the [contents policy] limits will be met” based on her initial claim review and the fact that the contractor's “services alone will be upwards of 25k+ as the norm.” (Id.) Cruz added that when she “questioned the value of the art pieces hung in the home that appeared to be affected,” Plaintiff “advised that they are less than 8k[,] some pieces are roughly 2k each[, and] none has been pulled out to be professionally restored.” (Id.)

• February 21, 2022: Cruz made a record regarding “Damages/Verification,” noting that based on her initial claim review, virtual tour of Plaintiff's home, and discussions with Plaintiff and others, “the majority of the items if not all are nonsalv[ageable].” (Id. at 68-69) (all caps omitted). Cruz added that she

disagreed with a contractor that certain items were salvageable, “there may be clothing that can be cleaned but . . . it is very doubtful that those items would come back without any odor or staining [and thus she was] nonsal[vaging] after considering all of [the] vendor service fees that would be [necessary] to inventory, pick up, clean, store and return,” and “there is minimal art that is salvageable/cleanable [and] for those items [she] will have [the] insured take these items to [a] specialty vendor for assessment of repair [versus] replace.” (Id.)

• February 21, 2022: Cruz emailed Plaintiff and explained that she did not agree with the contractor that “there is much [in terms of] salvage[able] items [and] thus the need for all of the [related paid] services” like cleaning and boxes. (Id. at 68.) Cruz also explained that she needed Plaintiff to take his artwork to a “specialty company” that could provide her with an “estimate/quote to . . . review” and “professional opinion as to whether the item can be restored and if so[,] how much.” (Id.) Cruz added that “any jewelry in the home . . . should have fared well but may require professional cleaning,” and if Plaintiff provided her with “a list of jewelry pieces (if any)[, she] can ensure to include monies for the cleaning of these items or [Plaintiff] can obtain and forward a detailed quote[.]” (Id.)

• March 2, 2022: Cruz made a record regarding her on-site inspection and efforts to verify Plaintiff's claimed property damage. (Id. at 52.) Cruz noted that “everything in the home maybe with minor exceptions of small things packed inside of other containers is all nonsalv[ageable],” she was “unable to

access the basement from the inside of the home nor from the outside rear door,” and she photographed artwork “but they all appear nonsalv[ageable] with possibly those in the master bedroom [being] salvageable.” (Id.) (all caps omitted).

The records upon which Plaintiff relies demonstrate only that Defendant believed that Plaintiff would likely receive the contents policy limit given the amount of unsalvageable property at issue, but Defendant needed (and requested) additional information from Plaintiff for verification. The records fail to support Plaintiff's suggestion that Defendant (1) did not disclose its ongoing need for additional information to verify Plaintiff's claimed damages and entitlement to the contents policy limit, (2) made any representations in reckless disregard of whether they were true or false or the fact that Plaintiff was being misled about his need to provide certain information, the extent to which he could dispose of nonsalvageable property and debris, or whether he was entitled to a full payout months before he ultimately received it, or (3) made any promise in reckless disregard of whether it could or could not perform.

In light of the foregoing, there are no genuine issues of material fact that preclude summary judgment in Defendant's favor on Plaintiff's fraudulent misrepresentation claim. This record is distinguishable from cases in which the circumstances supported a finding of reckless disregard. See infra Discussion Part I.B.1; see also Elizaga, 487 P.2d at 873-74 (stating that the “requisite intent to mislead” includes “a defendant misrepresenting a material fact . . . in reckless disregard of the fact he is misleading the other party,” a “jury could [have] decide[d] that the misrepresentation produced by the [defendant's] failure to disclose was done in reckless disregard of the fact plaintiff was being misled,” and “[ma]king a promise . . . with reckless disregard whether the promisor can or cannot perform can be the basis for an action of fraud”); Cruze, 267 P.3d at 180-81 (noting that a plaintiff could prevail if the defendant made the representation “with reckless disregard [of] whether it [was] true or false, . . . [or] by one who is conscious that he has no sufficient basis of information to justify them” (quoting Riley Hill, 737 P.2d at 605)). Accordingly, the Court recommends that the district judge grant Defendant's motion for summary judgment on Plaintiff's fraudulent misrepresentation claim.

II. NEGLIGENCE PER SE

Plaintiff also brings a “[n]egligence per se” claim and seeks noneconomic damages, including for emotional distress, based on Defendant's alleged violations of Oregon Revised Statute (“ORS”) § 746.230(1).⁴ (See SAC ¶¶ 3.1-.12.) Defendant moves for summary judgment on this claim, arguing that it is “legally insufficient and unsupported by evidence that could create an issue of fact as to any of the essential elements on which Plaintiff bears the burden of proof.” (Def.'s Mot. at 27.) The Court agrees that Defendant is entitled to summary judgment on Plaintiff's negligence per se claim, and therefore recommends that the district judge grant Defendant's motion.

4 Section 746.230(1) describes various “unfair claim settlement practices” and makes it unlawful for “[a]n insurer or other person . . . [to] commit or perform. . . [such] practices[.]” OR. REV. STAT. § 746.230(1).

A. Applicable Law

“[A] negligence per se claim is not a separate type of negligence claim with its own elements; rather, negligence per se is ‘simply shorthand for a negligence claim in which the standard of care is expressed by a statute or rule.'” Moody v. Or. Cmty. Credit Union, 542 P.3d 24, 32 (Or. 2023) (quoting Abraham v. T. Henry Constr., Inc., 249 P.3d 534, 537 n.6 (Or. 2011)). Put another way, “negligence per se [is] a ‘shorthand descriptor' of a negligence claim that otherwise exists, where the standard of care is expressed by statute or rule and a violation of the statute or rule establishes a presumption of negligence.” Id. (quoting Deckard v. Bunch, 370 P.3d 478, 483 n.6 (Or. 2016))). “Thus, to make out a claim of negligence per se and take advantage of a presumption of negligence arising from a statutory violation, a plaintiff must show not only that the statute sets out an applicable standard of care, but also that the plaintiff has an existing negligence claim.” Id.

Many years ago, the Oregon Supreme Court “stepped away from traditional concepts of ‘duty,' ‘breach of duty,' and ‘proximate cause' as aids to determine whether a plaintiff could maintain a claim for negligence[.]” Id. at 33 (citing Fazzolari v. Portland Sch. Dist. No. 1J, 734 P.2d 1326, 1335-36 (Or. 1987)). The Oregon Supreme Court “instead . . . reformulated the relevant question as whether the defendant's ‘conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.'” Id. (quoting Fazzolari, 734 P.2d at 1336). Oregon law is now well settled with respect to what a plaintiff must plead and prove in a negligence case:

It is now settled that [in a negligence case, a plaintiff] . . . “must allege [and put forth] facts from which a factfinder could determine (1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiff's harm, and (5) that plaintiff was within the class of persons and plaintiff's injury was within the general type of potential incidents and injuries that made defendant's conduct negligent.” Solberg v. Johnson, 760 P.2d 867, 871 (Or. 1988).

Id. ⁵

5 The Court notes that the Oregon Supreme Court has “disavowed Solberg to the extent that it could be read to have recognized a statutory tort consisting of elements different from a common-law negligence action.” Baker v. Croslin, 376 P.3d 267, 274 n.2 (Or. 2016) (citing Deckard, 370 P.3d at 499 n.20)). The Court also notes that when presented with comparable circumstances in Moody, the Oregon Supreme Court found that the plaintiff's negligence per se claim was a common law negligence claim, not a statutory tort. See 542 P.3d at 37 (“[P]laintiff does not ask us to hold that, in enacting ORS 746.230, the legislature intended to create a statutory tort. Plaintiff does not argue that the legislature expressly or impliedly intended to create a private right of action for violation of ORS 746.230. When the legislature intends to impose liability for violation of a statute, the elements of that statutory claim are determined by the legislature, and that claim is distinct from any other common-law claim that a party may have, including a common-law negligence claim.... Here, the claim that plaintiff alleges is not a statutory tort; rather, it is a common-law negligence claim.... Relatedly, plaintiff does not ask this court to create or recognize a type of tort liability different from the tort of common-law negligence”).

B. Analysis

The Court finds that Defendant is entitled to summary judgment on Plaintiff's negligence per se claim.

1. Physical Impact Rule and Exceptions

Plaintiff cannot establish a negligence per se claim unless he can demonstrate “not only that the statute [upon which he relies] sets out an applicable standard of care, but also that [he] has an existing negligence claim.” Moody, 542 P.3d at 32. In Moody, the Oregon Supreme Court observed that to have an “existing,” legally “viable common-law negligence claim, [the] plaintiff [there was required to] establish that she ha[d] a ‘legally protected interest' sufficient to subject [the] defendant to liability for purely emotional damages.” Id. at 32-33 (bold omitted). So too here.

As discussed below, Plaintiff does not present sufficient evidence demonstrating that he satisfies the physical impact rule and instead emphasizes that he does not need to satisfy the physical impact rule under the circumstances presented. See generally Id. at 33 (“Perhaps the simplest legally protected interest is in being free from physical harm at the hands of another.”) (simplified). Thus, as in Moody, whether Plaintiff has a “legally protected interest” sufficient to subject Defendant to liability for purely emotional damages turns on whether an exception to the physical impact rule applies. See Id. (“Generally, . . . people do not have a legally protected interest in being free from emotional distress, and, to date, this court has permitted common-law tort claims for emotional distress damages only in . . . three circumstances[,] . . . [including] when the defendant negligently causes foreseeable, serious emotional distress and also infringes some other legally protected interest.”) (simplified); see also I.K. v. Banana Republic, LLC, 505 P.3d 1078, 1081 n.1 (Or. Ct. App. 2022) (noting that the parties “skirmish[ed] over whether there is actually a general rule that is subject to exceptions,” some “cases use one phrasing” and others “use different phrasing,” “[m]ost cases appear to use the ‘exception' phrasing, and [the Oregon Court of Appeals has] done likewise,” and “there does not appear to be any legal significance to characterizing the law one way or the other”) (simplified).

a. The Parties' Arguments

At the motion to dismiss stage, the district judge addressed Defendant's argument that Plaintiff failed to allege a “physical impact.” Butters, 2023 WL 3559472, at *2 & n.3 (reflecting that Defendant argued that Plaintiff “fail[ed] to allege facts sufficient plausibly to show a ‘physical impact'” and the district judge exercised his discretion to address this new argument, which Defendant submitted with its objections). The district judge explained that the physical impact rule is based on the understanding that absent physical injury or an exception, a plaintiff cannot recover emotional distress damages in a negligence case: “[C]ourts in Oregon have consistently ‘rejected claims for emotional distress damages caused by a defendant's negligence, in the absence of any physical injury.' . . . This is known as the ‘physical impact rule.' It has three exceptions, however.” Id. at *2 (quoting Paul v. Providence Health Sys.-Or., 273 P.3d 106, 112 (Or. 2012))).

After recognizing that “[n]either the [Oregon] Supreme Court nor the Oregon Court of Appeals have sought to define the minimum amount of bodily harm necessary to constitute physical impact,” the district judge explained that because Plaintiff “allege[d] that he ha[d] suffered tangible physical injury [i.e., increased heart rate and blood pressure, weight loss, alopecia, and eczema] from the stress induced by [Defendant's] purported negligence,” Plaintiff “satisfie[d] the physical impact rule on a motion to dismiss.” Id. at *3 (brackets omitted) (quoting Chouinard v. Health Ventures, 39 P.3d 951, 955 (Or. Ct. App. 2022) and citing Simons v. Beard, 72 P.3d 96, 101 n.6 (Or. Ct. App. 2003)). Consequently, the district judge did not need to reach Defendant's argument that “none of [the physical impact rule's] exceptions apply.” Id.

In its motion for summary judgment, Defendant renews its argument that none of the three exceptions to the physical rule “appl[y] in this situation.” (Def.'s Mot. at 25.) Although Plaintiff makes a passing reference to “there . . . still be[ing] a debate about the physical impact rule that would have to be decided by the factfinder,” Plaintiff focuses primarily on whether Defendant is “liable for negligence . . . without [Plaintiff] having to prove a physical impact.” (Pl.'s Resp. at 9, 11.) In other words, Plaintiff focuses primarily on whether an exception to the physical impact rule applies here. To that end, Plaintiff emphasizes that (1) in some negligence cases, a “plaintiff does not need to meet the physical impact rule to recover purely psychic damages,” (2) there is a “genuine debate” about whether he “need[s] to prove a physical impact,” (3) Defendant relies only on medical records from Plaintiff's “hospital stay for heart failure, which is not one of the physical impacts [that Plaintiff] listed [in] the SAC,” and (4) “[a]ll of the evidence [that] [D]efendant has produced in regards to the physical impact rule is immaterial.” (Id. at 9.)

b. Evidence of Physical Impact

To the extent Plaintiff suggests that he continues to satisfy the physical impact rule, the Court disagrees and concludes that Defendant is entitled to summary judgment on Plaintiff's negligence claim.

Plaintiff fails to present sufficient evidence demonstrating that he satisfies the physical impact rule. In fact, he asserts that the medical records that he provided to Defendant are immaterial. See Anderson, 477 U.S. at 249 (explaining that “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party”). The only evidence that Plaintiff presents at this stage is Defendant's internal claim notes (see Pl.'s Ex. 1 at 1-89), and Plaintiff emphasizes that heart failure is not a physical impact listed in his operative complaint.

Plaintiff previously represented to Defendant that his heart condition and hospitalization were relevant physical symptoms. (See Suppl. Ryan Decl. Ex. 124 at 2-3, noting that in his interrogatory response about the “physical or emotional health symptoms” that he allegedly suffered as a result of Defendant's actions, Plaintiff relied on his “stress induced cardiomyopathy which . . . turned into regular cardiomyopathy” and led to an April 2023 hospitalization and diagnosis of heart failure, and added that he recently was in “recovery for drug addiction”) (bold and all caps omitted). Even assuming Plaintiff's heart condition and hospitalization remain relevant physical symptoms, the Court agrees with Defendant that “there is no competent evidence linking [Plaintiff's] hospitalization for heart failure to [D]efendant's alleged conduct[.]” (Def.'s Reply at 13.) To be sure, the April 2023 medical records, which is the only evidence before the Court addressing a potentially tangible physical injury that Plaintiff suffered, attribute Plaintiff's condition to other factors, including factors that Plaintiff redacted before providing his records to Defendant. (See Ryan Decl. ¶ 3; id. Ex. 121, attaching a five-page discharge summary from Plaintiff's April 2023 hospitalization, which reflects that (1) Plaintiff's provider stated that Plaintiff had a history of “COVID-19 infection most recently [three] weeks ago,” the “etiology” of Plaintiff's “[a]cute systolic heart failure” was “likely multifactorial” and “predominant factors [were] likely,” among other things, “COVID-19,” and “ischemia also not yet ruled out,” (2) Plaintiff redacted the other “predominant factors” that his provider listed, and (3) Plaintiff's provider noted that Plaintiff's diagnoses also included acute kidney injury, prediabetes, coagulopathy, and conditions that Plaintiff redacted).

For these reasons, the Court finds that Defendant is entitled to summary judgment on Plaintiff's negligence per se claim, to the extent Plaintiff suggests that he continues to satisfy the physical impact rule.

c. Moody's Guidance

The Court turns to whether an exception to the physical impact rule applies here. The Oregon Supreme Court's recent decision in Moody provides instructive guidance on this matter.

In Moody, the plaintiff asserted a negligence per se claim and sought emotional distress damages based on the defendant's alleged violations of ORS §746.230(1). 542 P.3d at 29. The Oregon Supreme Court noted that (1) a plaintiff's “[n]egligence per se claim depends on a viable common-law negligence claim,” (2) “[t]o have a viable common-law negligence claim, [the] plaintiff [needed to] establish that she ha[d] a ‘legally protected interest' sufficient to subject [the] defendant to liability for purely emotional damages,” and (3) the parties' dispute “center[ed] on whether [the] plaintiff ha[d] alleged a foreseeable risk to ‘a protected interest' sufficient to subject [the] defendant to liability for emotional distress damages.” Id. at 31-33 (simplified).

In resolving the parties' dispute, the Oregon Supreme Court recounted the legally protected interests that it had previously recognized, which implicated the physical impact rule and its exceptions:

Perhaps the simplest legally protected interest is in being “free from physical harm at the hands of another.” Philibert v. Kluser, 385 P.3d 1038, 104142 (Or. 2016). Physical harm includes both bodily injury and property damage. Generally, however, people do not have a legally protected interest in being free from emotional distress, and, to date, this court has permitted common-law tort claims for emotional distress damages only in the following three circumstances: (1) when the defendant also physically injures the plaintiff; (2) when the

defendant intentionally causes the emotional distress; or (3) when the defendant “negligently causes foreseeable, serious emotional distress and also infringes some other legally protected interest.” Id. at 1041; see also Hammond v. Cent. Lane Commc'ns Ctr., 816 P.2d 593, 596 (Or. 1991) (stating that the court had recognized negligence claims for “psychic injury” in those three circumstances). In that third category of cases, this court has looked for a legal source of liability other than foreseeability: “[T]he injury's foreseeability, standing alone, is insufficient to establish the defendant's liability[;] there must also be another ‘legal source' of liability for the plaintiff to recover emotional distress damages.” Philibert, 385 P.3d at 1041.

Id. at 33 (footnote omitted); see also Butters, 2023 WL 3559472, at *2 (quoting Hammond on the exceptions).

After detailing cases relevant to the third category, the Oregon Supreme Court described the interest the plaintiff sought to have it recognize as “legally protected,” its general reluctance to permit recovery for solely emotional injury, and how it assesses whether a plaintiff's interest is legally protected and sufficient to subject the defendant to liability for emotional distress damages:

[T]he interest that plaintiff seeks to have us recognize as legally protected and sufficient to subject defendant to liability for emotional distress damages is her interest, as the surviving spouse of a deceased breadwinner, in having the insurance company with which she and her husband had contracted for life insurance benefits conduct a reasonable investigation of, and promptly pay, her claim for the promised benefits.

To decide whether that alleged interest is a legally protected interest sufficient to subject defendant to liability for emotional distress damages, we begin, as we did in Philibert, by acknowledging that this court is hesitant to permit recovery for solely emotional injury but has nevertheless done so in limited circumstances. We have not devised a “test” for determining when an interest is so protected; rather we have looked for factors that demonstrate, to our satisfaction, that we will not be creating “indeterminate and potentially unlimited liability,” and that the interest in question is “sufficiently important” and sufficiently circumscribed to support the imposition of liability for emotional distress damages. Philibert, 385 P.3d at 1042, 1044. We acknowledge that such an analysis requires an application of judgment, but that is the nature of the common law. It requires that we proceed incrementally, looking at our past decisions and applying similar reasoning to new circumstances. See, e.g., Deep Photonics Corp. v. LaChapelle, 491 P.3d 60, 68-69 (Or. 2021) (stability and consistency are critical aspects of common-law decision-making; court's decision

comported with that standard because the changes it made to the common law were “marginal, incremental, and clearly foreshadowed by our prior decisions”). We therefore proceed to consider the factors that have been important to us in our past decisions.

Moody, 542 P.3d at 36.

The factors the Oregon Supreme Court considered were: (1) “[w]hether an Oregon statute indicate[d] the existence of the alleged legally protected interest,” (2) “[w]hether permitting recovery of emotional distress damages [was] consistent with recovery of emotional distress damages in other common-law actions and would not place an undue burden on defendants,” and (3) “[w]hether [the] plaintiff's interest [was] ‘of significant importance.'” Id. at 36, 42, 44 (bold omitted). After considering each of these factors, the Oregon Supreme Court concluded that the plaintiff alleged a viable common-law negligence claim against the defendant for emotional distress damages, but the Oregon Supreme Court also cautioned that its decision in Moody was a “narrow one”:

[W]e are convinced that plaintiff has alleged a legally protected interest that provides that limiting principle; that is, plaintiff, as the surviving spouse of a deceased breadwinner, has a legally protected interest sufficient to support a common-law negligence claim for emotional distress damages against her husband's life insurer for failure to reasonably investigate and promptly pay her claim for insurance benefits.... Oregon statutory law imposes an obligation to protect that interest. In undertaking to provide insurance benefits, an insurer not only undertakes to provide necessary financial resources but also undertakes to provide the peace of mind that comes with knowing that those resources will be promptly paid, alleviating emotional distress and avoiding further psychological harm.... [T]he parties are in a relationship of “mutual expectation of service and reliance.” . . . [T]he services provided are intended to avoid inflicting emotional, as well as financial, harm. And, . . . there are objective indicators of possibly serious emotional injury. Considering all of those factors, and not relying on any one of them alone, we conclude that the insurance claim practices that ORS 746.230 requires and the emotional harm that foreseeably may occur if that statute is violated are sufficiently weighty to merit imposition of liability for common-law negligence and recovery of emotional distress damages.

Accordingly, we answer the question whether plaintiff has alleged a viable common-law negligence claim against defendant for emotional distress damages in the affirmative. We caution that our conclusion here does not make every

contracting party liable for negligent conduct that causes purely psychological damage, nor does it make every statutory violation the basis for a common-law negligence claim for emotional distress damages. Far from it. Few contracting parties promise to provide necessary financial resources on the death of a spouse knowing that their obligation to act reasonably in doing so is required by statute. And few statutes impose obligations on contracting parties designed to protect the parties from the type of emotional harm that plaintiff in this case allegedly suffered. Our decision in this case is a narrow one that applies and accords with the limiting principles that have guided our past decisions and does not unfairly expose defendant to liabilities that it could not have expected and guarded against.

Id. at 45.

2. Disposition

The Court assumes without deciding that Plaintiff has alleged a viable common law negligence claim against Defendant for emotional distress damages. See generally Butters v. Travelers Indem. Co., No. 3:22-cv-726-SB, 2024 WL 1328412, at *1 (D. Or. Mar. 28, 2024) (noting that “[i]t is an open question whether [the] exception [recognized in Moody] would similarly apply here, such that [Plaintiff] could seek emotional distress damages,” and “[t]he issues relevant to that question will require resolution at a later stage in the proceedings, and after briefing on the potential application of Moody.”). The Court, however, need not decide that issue because it finds that there is no genuine issue of material fact as to whether Defendant violated ORS § 746.230(1). Accordingly, the Court recommends that the district judge grant Defendant's motion for summary judgment on this ground.

ORS § 746.230(1) makes it unlawful for “[a]n insurer or other person . . . [to] commit or perform. . . [certain] unfair claim settlement practices[.]” OR. REV. STAT. § 746.230(1). As relevant here, ORS § 746.230(1) makes it unlawful for an insurer to (1) “[f]ail[] to adopt and implement reasonable standards for the prompt investigation of claims,” (2) “[f]ail[] to affirm or deny coverage of claims within a reasonable time after completed proof of loss statements have been submitted,” (3) “[n]ot attempt[], in good faith, to promptly and equitably settle claims in which liability has become reasonably clear,” (4) “[c]ompel[] claimants to initiate litigation to recover amounts due by offering substantially less than amounts ultimately recovered in actions brought by such claimants,” (5) “[d]elay[] investigation or payment of claims by requiring a claimant . . . to submit a preliminary claim report and then requiring subsequent submission of loss forms when both require essentially the same information[.]” Id. § 746.230(1)(c), (e)-(g), (k); (see also SAC ¶¶ 3.4-.8, alleging that Defendant violated ORS § 746.230(1)(c), (e)-(g), and (k)).

There is no genuine issue of fact as to whether Defendant violated ORS § 746.230(1)(c), (e)-(g), or (k). Nothing in the summary judgment record suggests that Defendant “[f]ail[ed] to adopt and implement reasonable standards for the prompt investigation of claims[.]” OR. REV. STAT. § 746.230(1)(C). Plaintiff makes no meaningful argument to the contrary and does not explain what investigation-related standards Defendant failed to adopt or implement. (See Pl.'s Resp. at 1-11.)

With respect to Defendant's alleged violation of ORS § 746.230(1)(e), there is no genuine issue of material fact as to whether Defendant “[f]ailed to affirm or deny coverage of claims within a reasonable time after completed proof of loss statements have been submitted.” OR. REV. STAT. § 746.230(1)(E). Plaintiff argues that Defendant violated Oregon Administrative Rule (“OAR”) 836-080-0235(1) because Defendant did not pay his contents claim in full “until four months after [Defendant] received [his] proof of loss.” (Pl.'s Resp. at 10; see also Pl.'s Surreply at 3, arguing that there is “no genuine dispute” as to whether Defendant violated OAR 836 OAR 836-080-0235(1) provides that “[a]n insurer shall, not later than the 30th day after its receipt of properly executed proofs of loss from a first party claimant, advise the claimant of the acceptance or denial of the claim.” OR. ADMIN. R. 836-080-0235(1). Relatedly, OAR 836080-0235(4) provides that “[i]f an insurer needs more time to determine whether the claim of a first party claimant should be accepted or denied, it shall so notify the claimant not later than the 30th day after receipt of the proofs of loss, giving the reason more time is needed.” OR. ADMIN. R. 836-080-0235(4). OAR 836-080-0235(4) also provides that “[f]orty-five days from the date of such initial notification and every 45 days thereafter while the investigation remains incomplete, the insurer shall notify the claimant in writing of the reason additional time is needed for investigation.” Id.; see also OR. ADMIN. R. 836-080-0210(5) (explaining that for purposes of OAR 836-080-0235, the term “‘[i]nvestigation' means the activities of an insurer directly or indirectly related to the determination of liabilities under coverages provided by an insurance policy”).

Plaintiff argues that Defendant violated OAR 836-080-0235(1) because Defendant did not pay the remaining policy limits on Plaintiff's contents claim ($92,345.16) within thirty days of his March 14, 2022 submission of his revised and complete contents inventory. (See Pl.'s Resp. at 10; see also Cruz Decl. ¶ 15; id. Ex. 109, attaching and describing Plaintiff's March 14, 2022 “revised Contents inventory, which included the shed and outdoor items previously listed and added items that were inside [of his] home”). Several weeks before Plaintiff submitted his revised inventory, which he equates to a “properly executed proof[] of loss” (see Pl.'s Resp. at 10), Cruz “issued a Coverage C payment in the amount of $14,397.72 via direct deposit to the bank account [that Plaintiff and Plaintiff's husband] previously provided [to Defendant].” (Cruz Decl. ¶ 9; Stone Decl. ¶ 15.)

On March 15, 2022, the day after Plaintiff submitted his revised inventory, Cruz “express[ed] concern about the revised inventory” because Plaintiff had “previously indicated many items were no longer in use” and Cruz “observed many items that appeared obsolete, [yet] the new inventory described more than 500 of the 865 items as ‘above average.'” (Cruz Decl. ¶ 15.) On March 17, 2022, Plaintiff informed Cruz that he could not provide the photographs that she requested to “help validate [the] pre-loss condition” of items listed on Plaintiff's revised inventory, and that he opposed Cruz's offer to “redesignat[e] . . . any items as ‘average' pending verification” and for purposes of processing a partial payment. (Id. ¶¶ 16-17.) After Cruz did not hear back from Plaintiff about her request to “revisit the home after the downed debris was removed, [so she] could view and assess the Contents more easily” than she was able to do during her March 2, 2022 visit, Cruz sent two letters to Plaintiff on March 21, 2022. (Id. ¶¶ 12, 18-19.)

In these March 21, 2022 letters, Cruz informed Plaintiff that she had been “unable to determine whether [his contents] claim [was] covered under [the] policy based on the information available to [her] at th[at] time,” and Defendant “reserve[d] its rights under the policy and law, including the right to deny all or part of [his contents] claim that [was] not covered.” (Id. Ex. 110 at 1.) Cruz also advised that under the policy's “Conditions” section, Plaintiff's “Duties After Loss” included not only “[p]repar[ing] an inventory of damaged personal properly showing the quantity, description, actual cash value and amount of the loss,” but also “[a]ttach[ing] all bills, receipts and related documents that justify the figures in the inventory.” (Id. Ex. 110 at 1-2) (all caps omitted). Consistent with these terms, Cruz asked for “original receipts, invoices, estimates or other documents to support [Plaintiff's contents] claim.” (Id. Ex. 111 at 1.)

Notably, about three weeks before Cruz sent these letters, Plaintiff told Cruz that he had “receipts for everything on [his shed contents list] from Amazon and Best Buy,” and that Lowe's was “generally willing to pull old receipts if [he] need[ed] any in particular.”⁶ (Cruz Decl. Ex. 103 at 1; see also Pl.'s Ex. 1 at 79, reflecting that Cruz noted that Plaintiff's shed was “full of electronics, [including] . . . multiple [televisions] and laptops,” would “require [a] recreate,” and “there [we]re a lot” of “affected items”). Yet, Plaintiff did not provide Defendant with “purchase logs from Lowe's and Home Depot for tools and building materials (which potentially could be covered under one or more of Coverages A, B, or C)” until June 7, 2022. (Stone Decl. ¶ 31; id. Ex. 116.)

6 Plaintiff also informed Cruz that a review of his “retail store transactions [on his] checking account” revealed that he “spent [$]107,000 in the last 22 months alone in that one account.” (Cruz Decl. Ex. 101 at 1.) As such, Plaintiff believed that he would be “able to blow by [the contents policy limit] easily without even including [his] art.” (Id.) It appears that Plaintiff attached a comma separated value (“CSV”) file on his checking transactions. (See id., attaching an excel spreadsheet and a “Checking.csv” file). The summary judgment record does not appear to include this CSV file or refer explicitly to it. Plaintiff previously docketed “banking transaction” and purchase histories. (See ECF No. 15 at 3, ECF No. 15-6 at 1-12; ECF No. 15-7 at 1-19.) Even if these histories were part of the summary judgment record, the histories failed to verify Plaintiff's claimed contents damages, as (1) numerous entries refer only to the date, retailer, payment amount, and type of payment card, but not the item purchased, and (2) the histories do not address what entries corresponded to items listed on the complete inventory, whether Plaintiff returned any items, or whether any of Plaintiff's purchases at certain retailers, such as Wal-Mart, Fred Meyer, and Walgreens, were for something other than now-damaged personal property.

This evidence and timeline demonstrates that Defendant complied with OAR 836-0800235. Defendant notified Plaintiff “not later than the 30th day after receipt” of Plaintiff's revised and no longer incomplete inventory (i.e., the inventory that Plaintiff equates to his “properly executed proof[] of loss”) that it needed more time to assess whether it would accept all or only part of Plaintiff's contents claim, and Defendant provided reasons why more time was needed. See OR. ADMIN. R. 836-080-0235(4) (“If an insurer needs more time to determine whether the claim of a first party claimant should be accepted or denied, it shall so notify the claimant not later than the 30th day after receipt of the proofs of loss, giving the reason more time is needed.”).

At that point, Defendant was required to notify Plaintiff, in writing, every forty-five days if it needed additional time to complete its investigation/verification of Plaintiff's claimed contents damages. See OR. ADMIN. R. 836-080-0235(4) (providing that “[f]orty-five days from the date of such initial notification and every 45 days thereafter while the investigation remains incomplete, the insurer shall notify the claimant in writing of the reason additional time is needed for investigation”). Defendant provided the necessary follow-up notification on April 29, 2022. (See Stone Decl. Ex. 115 at 1-3, reflecting that Defendant followed up on the outstanding requests from its March 21, 2022 letters and reminded Plaintiff of the terms of the “Duties After Loss” provision).

Defendant issued its follow-up notification letter on the same day that it received service of process in this action. (See id. ¶¶ 29-30, stating as much and noting that Plaintiff's complaint reflected that it had been “filed on April 21, 2022, and sought to enjoin [Defendant's] claim investigation”). Less than thirty days later, on May 24, 2022, Defendant notified Plaintiff (and the Court) in writing that it continued to need additional information from Plaintiff to complete its investigation and verification of Plaintiff's contents damages. (See Def.'s Mot. Dismiss at 2, 8, ECF No. 5, representing that Defendant continued to need “additional information about items on [Plaintiff's] contents inventory” and asking for a stay to “facilitate the completion of the claim investigation”; see also Mot. Hr'g Tr. 4:4-50:14, June 21, 2022, ECF No. 19, showing that Defendant made similar representations on the record about the status of its contents claim investigation).

Two weeks later, on June 7, 2022, Plaintiff “submitted additional documents directly to [Defendant's] claim portal (i.e., bypassing counsel of record), including an estimate for artwork and purchase logs from Lowe's and Home Depot for tools[.]” (Stone Decl. ¶ 31.) Later that month, on June 21, 2022, Plaintiff “submitted to the Court . . . a copy (unsigned) of the Sworn Statement of Loss that he previously refused to submit,” and “stated on the record that he had a notarized version of the Sworn Statement and was prepared to submit it to [Defendant].” (Id. ¶ 31, citing ECF No. 15-4 at 2-3, and referring to Mot. Hr'g Tr. 32:6-33:10, 44:4-8; see also ECF No. 31-1 at 7, showing that in an email dated June 29, 2022, Plaintiff told Defendant's counsel that he could “communicate to [his] client that the Sworn Statement Proof of Loss [was] no[] longer on the table”; Pl.'s Mot. Sanctions at 1, ECF No. 23, reflecting that in an August 10, 2022 motion for sanctions, Plaintiff stated that he was “under duress in the oral argument[]” when he stated that he was willing to provide Defendant with a signed and notarized version of the Sworn Proof of Loss form and that he “changed [his] mind and made that very clear” to Defendant's counsel).

On July 12, 2022, about one month after Plaintiff submitted these documents to Defendant's claim portal, including purchase records that Defendant had previously requested, Defendant paid Plaintiff the $92,345.16 necessary to exhaust the contents policy limit. (Stone Decl. ¶¶ 30-33.) Defendant did so “without ever receiving [an additional] walkthrough or the sworn statement.” (Pl.'s Resp. at 6.)

Plaintiff argues that Defendant's decision to pay his claim in full without receiving the walkthrough or sworn statement demonstrates that “the two items [that Defendant] claim[ed] held up [its] investigation and the payment of [Plaintiff's] claim [were] documents [Defendant] never really needed in the first place.” (Id.) Plaintiff adds that although Defendant “never asked for [them], [he] provided [Defendant] with receipts that covered the vast majority of the items on [his] proof of loss, as well as a bank statement that shows [that his] spending aligns with the proof of loss [that he] submitted.” (Id. at 6-7) (emphasis added). Plaintiff also represents that Defendant never requested any of the June 2022 documents that he submitted. (Id. at 7.)

Contrary to Plaintiff's arguments, Defendant's March 21, 2022 letters clearly asked Plaintiff to provide Defendant with “original receipts, invoices, estimates or other documentation to support [his] claim,” and quoted the relevant portion of the policy's “Duties After Loss” provision addressing an insured's obligation to provide such documentation to the insurer. (Cruz Decl. Exs. 110-11.) Earlier that same month, Plaintiff represented to Cruz that he had “receipts for everything on [his shed contents list] from Amazon and Best Buy,” and that Lowe's was “generally willing to pull old receipts if [he] need[ed] any in particular.” (Cruz Decl. Ex. 103 at 1.) Plaintiff fails adequately to address this record evidence. Plaintiff's failure to do so is significant because when Defendant decided to issue the final contents payment of $92,345.16, it relied on the documents that Plaintiff submitted to its claim portal in June 2022. (See Stone Decl. ¶ 31.)

To the extent Plaintiff relies on “bank statements” that he previously provided to Defendant, Plaintiff appears to be referring to the CSV file and histories that the Court discussed above in footnote six. As the Court explained in that footnote, even if Plaintiff's previously submitted banking transaction and purchase histories were part of the summary judgment record, it is evident that these records failed to verify Plaintiff's claimed contents damages because (1) numerous entries refer only to the date, retailer, payment amount, and type of payment card, but not the item purchased, and (2) it is not clear what entries corresponded to items listed in Plaintiff's complete inventory, whether Plaintiff returned any items, or whether any of Plaintiff's purchases at certain retailers, such as Wal-Mart, Fred Meyer, and Walgreens, were for something other than now-damaged personal property. Defendant could not have relied on this documentation alone to verify Plaintiff's loss.

Given this evidence, there is no genuine issue of material fact as to whether Defendant complied with OAR 836-080-0235, or “[f]ailed to affirm or deny coverage of claims within a reasonable time after completed proof of loss statements have been submitted.” OR. REV. STAT. § 746.230(1)(e). Nor is there a genuine issue of material fact as to whether Defendant violated ORS § 746.230(1) by (1) “[n]ot attempting in good faith, to promptly and equitably settle claims in which liability has become reasonably clear,” (2) “[c]ompelling [Plaintiff] to initiate litigation to recover amounts due by offering substantially less than amounts ultimately recovered in [this] action[] brought by [Plaintiff],” or (3) “[d]elaying investigation or payment of claims by requiring [Plaintiff] . . . to submit a preliminary claim report and then requiring subsequent submission of loss forms when both require essentially the same information[.]” Id. § 746.230(1)(f)-(g), (k); (cf. SAC ¶¶ 3.4-.8, alleging violations of ORS § 746.230(1)(c), (e)-(g), (k)). In the Court's view, the evidence presented on summary judgment suggests only that Defendant acted in good faith, attempted promptly and equitably to settle Plaintiff's contents claim, did nothing to compel Plaintiff to initiate litigation within sixty days of the fire at his home, and did not delay investigation or payment by requiring Plaintiff to submit “essentially the same information.”

For all of these reasons, there are no genuine issues of material fact that preclude summary judgment in Defendant's favor on Plaintiff's negligence per se claim. The Court therefore recommends that the district judge grant Defendant's motion for summary judgment.⁷

7 The parties dispute whether (1) Defendant's claim manager, Aaron Stone (“Stone”), may serve as an expert witness regarding Defendant's handling of Plaintiff's claim and the reasonableness of Defendant's actions, and (2) Plaintiff needed to offer an expert to rebut Stone's opinion. (See Def.'s Mot. at 20-21, arguing that Stone, who “oversaw the handling of the claim,” is “a qualified expert in claims handling” and Plaintiff needs “a qualified expert opinion to rebut [Defendant's] evidence that its conduct was reasonable under the circumstances”; Pl.'s Resp. at 10, stating that it is “absolutely absurd[]” that Defendant presents Stone as an “expert” because he “directly worked on the claim in question” and has “a vested interested in the outcome,” all of which means that “his opinion [could not] possibly be any more biased,” and adding that Stone is only an expert in Defendant's procedures, not “claims handling at large”). The Court declines to resolves these disputes because even if the Court treats Stone only as a fact witness (as it has done here), the record demonstrates that Defendant is entitled to summary judgment.

CONCLUSION

For the reasons stated, the Court recommends that the district judge GRANT Defendant's motion for summary judgment (ECF No. 69).

SCHEDULING ORDER

The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.