Opinion
21-55730
10-25-2022
JACLYN A. KERRIGAN, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY; ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendants-Appellees.
NOT FOR PUBLICATION
Submitted October 21, 2022 Pasadena, California
Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding D.C. No. 2:20-cv-05969-JFW-MAA
Before: GOULD, WATFORD, and HURWITZ, Circuit Judges.
MEMORANDUM [*]
Jaclyn Kerrigan appeals a summary judgment in favor of Allstate on her claim for bad faith in connection with her underinsured motorist insurance policy. We affirm.
1. An insurer who delays payment of policy benefits because of a "genuine dispute with its insured as to . . . the amount of the insured's coverage claim is not liable in bad faith." Chateau Chamberay Homeowners Ass'n v. Associated Int'l Ins. Co., 90 Cal.App.4th 335, 347 (2001); see also Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001) ("Under California law, a bad faith claim can be dismissed on summary judgment if the defendant can show that there was a genuine dispute as to coverage ....").
Here, there was a genuine dispute as to the value of Kerrigan's claim. Kerrigan claimed over $28,500 in lost earnings, but she provided little evidence in support of that figure. Her primary evidence was an email from a magician identifying fifteen performances that Kerrigan allegedly missed because of her injuries. The email does not make clear, however, whether the performances were guaranteed opportunities or merely potential ones, and Kerrigan never returned the form that would have authorized Allstate to contact the magician and verify her claimed lost earnings. The only other supporting documentation Kerrigan submitted was a list of unverified payments totaling $3,216.98 to a bakery assistant and a receipt for a $225 refund given to a bakery client. That Allstate eventually chose to settle with Kerrigan-despite never receiving any additional documentation-does not negate the existence of a genuine dispute prior to the settlement. Given the undisputed evidence of a genuine dispute with Kerrigan, the district court properly granted summary judgment to Allstate.
2. The district court also properly granted summary judgment on Kerrigan's theory that Allstate unreasonably delayed in investigating her claim. Delay while an insurer seeks information and investigates an insured's claim is not considered unreasonable. Globe Indem. Co. v. Superior Ct., 6 Cal.App.4th 725, 731 (1992) (per curiam). Allstate was entitled to investigate Kerrigan's claim and did not unreasonably delay in doing so. As the district court noted, Kerrigan "failed to return her signed medical authorization for fifteen months after Allstate Fire initially requested it and never returned her wage authorization or employer information forms, and, thus, interfered with Allstate Fire's investigation."
3. Kerrigan argues that Allstate acted in bad faith by making two "lowball" offers of $10,000 and $15,000, even though it had already authorized a settlement of up to $25,000 in her case. Allstate, however, submitted competent evidence-a declaration and deposition testimony from the adjuster assigned to Kerrigan's case-that the $25,000 settlement authorization was based on a preliminary evaluation and contingent upon the receipt of additional documentation from Kerrigan. The burden thus shifted to Kerrigan to raise a triable issue of fact, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but she failed to submit evidence calling into question or contradicting the sworn statements of Allstate's adjuster. See Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983) ("[N]either a desire to cross-examine an affiant nor an unspecified hope of undermining his or her credibility suffices to avert summary judgment.").
This court may draw an inference in Kerrigan's favor from the lack of any "preliminary" notation on the evaluation only if it is "reasonable in view of other undisputed background or contextual facts." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). On this record, it would not be reasonable to infer that an evaluation conducted on the slim evidence Kerrigan had provided to Allstate was final, given the adjuster's unrebutted sworn statements otherwise.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).