Hickel v. State Farm Mutual Automobile Insurance Company

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
Emma L. Hickel, )
)
Plaintiff, ) 3:17-CV-00255 JWS
)
vs. ) ORDER AND OPINION
)
) [Re: Motion at Docket 7]
State Farm Mutual Automobile )
Insurance Company, )
)
Defendant. )
)
I. MOTION PRESENTED
At docket 7 Defendant State Farm Mutual Automobile Insurance Company (“State
Farm”) moves pursuant to Federal Rule of Civil Procedure 56 for summary judgment on all
claims brought by Plaintiff Emma L. Hickel (“Hickel”). State Farm supports the motion with
a memorandum of points and authorities at docket 8 and a declaration at docket 9. Hickel
opposes the motion at docket 21 and submits affidavits in support of the opposition at
dockets 22 and 23. State Farm replies at docket 25. This Court previously denied
Hickel’s request for oral argument,1 and has again determined that oral argument would
not assist the court.
II. BACKGROUND
On March 6, 2012, Hickel, then a minor, was a passenger in a 2005 Ford
Expedition that had stopped behind a school bus on eastbound Dimond Boulevard when it
1Doc. 30.
Case 3:17-cv-00255-JWS Document 31 Filed 08/31/18 Page 1 of 11

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was rear ended by a 1995 Ford Bronco.2 The 2005 Ford Expedition was insured under
State Farm Auto Policy Number 066 2701-F15-02 (the “State Farm insurance policy”).3
After she noticed pain in her lower back, Hickel received therapeutic care from
Alaska Chiropractic Arts through June 2012, the cost of which was covered by State Farm
as medical payments.4 In December 2012, Hickel’s symptoms worsened, and she
consulted Advanced P.T. in January 2013.5 An MRI was done in February 2013 and
showed herniations in her lower back at L4-L5 and L5-S1.6 In June 2013, Hickel began
oral steroid treatment, but the pain eventually returned.7
Hickel retained an attorney and notified State Farm of her injuries on August 9,
2013.8 On May 30, 2014, Hickel filed in the Alaska Superior Court a negligence complaint
against the driver of the 1995 Ford Bronco, Abigale Kane, Case No. 3AN-14-7174 CI.9
Kane agreed to settle Hickel’s claim for the $100,000 liability coverage limit of her
American Family Mutual Insurance Company insurance policy,10 and, on December 4,
2014, Hickel informed State Farm of the underlying settlement and her intent to make an
underinsured motorist (“UIM”) claim under the State Farm insurance policy.11 On
2Doc. 1-1 at 3 ¶ 5; Doc. 7-2 at 1; Doc. 7-4 ¶ 1; Doc. 22 at 1-2 ¶ 1.
3Doc. 7-6.
4Doc. 1-1 at 3 ¶ 6; Doc. 22 at 1-2 ¶ 1.
5Doc. 22 at 2-3 ¶¶ 3-4.
6Id. at 3 ¶ 4.
7Id.
8Id. at 3 ¶ 5.
9Doc. 7-3.
10Doc. 7-5; Doc. 7-4 ¶ 1.
11Doc. 7-8.
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December 16, 2014, Hickel executed a Release of All Claims as to Kane.12 By that time,
Hickel had undergone one lumbar spinal surgery.13
On February 10, 2015, Hickel sent State Farm documentation about the accident
and her medical bills, and requested that State Farm pay her the State Farm Insurance
policy’s UIM limits of $50,000, plus prejudgment interest and Rule 82 attorney’s fees.14
The demand letter stated that Hickel would “move forward with a lawsuit in superior court”
if State Farm did not pay the request by February 27, 2015.15 On the deadline date, State
Farm made a settlement offer of $5,000.16 State Farm reiterated its $5,000 offer by letter
dated April 30, 2015,17 and increased the offer to $10,000 by letter dated May 8, 2015.18
On September 25, 2015, Hickel’s counsel faxed State Farm a letter “demand[ing]
payment of the $10,000 UIM BI benefits as the undisputed portion of this claim.”19 The
letter stated that “State Farm’s payment of the $10,000 in undisputed UIM BI benefits shall
be made without prejudice to Ms. Hickel’s continued right to demand payment of the
remaining UIM BI policy limits.”20 By letter also dated September 30, 2015, State Farm
paid Hickel $10,000, stating that the parties “ha[d] reached an impasse.”21 On January 13,
12Doc. 7-5.
13Doc. 22 at 4 ¶ 8.
14Doc. 7-9.
15Id.
16Doc. 21-4 at 5.
17Id. at 6.
18Id. at 7.
19Id. at 8.
20Id.
21Doc. 7-11.
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2016, State Farm sent Hickel’s counsel a letter stating, “We extended a settlement to your
client on May 8, 2015, for $10,000 and have yet to get a response from you.”22
From her first surgery in November 2014 through the summer of 2017, Hickel
“play[ed] the waiting game to see how successful the first surgery would turn out to be” and
decided that she would not file suit against State Farm unless another surgery was
necessary.23 In August 2017, another MRI showed that additional surgery was
necessary.24 On August 27, 2017, more than 19 months after the last letter from State
Farm, counsel for Hickel “reiterated Ms. Hickel’s demand for payment of the UIM policy
limits due to ongoing complications,” and requested “an updated written acknowledgment
of [the] claims and the current contact information for the adjuster assigned to [the] UIM BI
claim.”25 About a week later, State Farm, through a different claims specialist, confirmed
receipt of the demand but stated that State Farm was “unable to accept or reject [the]
demand because medical bills and records were not provided related to the ongoing
complications . . . described.”26
On October 26, 2017, counsel for State Farm sent Hickel’s counsel a letter
reflecting State Farm’s belief that Hickel’s claim for UIM benefits was time-barred pursuant
to the terms of the State Farm insurance policy.27 Hickel filed the instant suit in Anchorage
22Doc. 21-4 at 11. In her opposition, Hickel describes the January 13, 2016 letter as
“extend[ing] an additional $10,000 UIM settlement.” Doc. 21 at 7. It appears, however, that the
letter merely described the $10,000 payment previously made on May 8, 2015. Neither party
contends that State Farm offered $20,000 in total settlement.
23Doc. 22 at 4 ¶ 8-9.
24Id. ¶ 12.
25Doc. 21-4 at 12.
26Id. at 13.
27Id. at 14.
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Superior Court eleven days later, on November 6, 2017.28 In her complaint, Hickel alleged
that “Defendant’s refusal to provide contract benefits and reasonable claim handling
service to Plaintiff is in violation of the insurance contract, the covenant of good faith and
fair dealing, and Alaska’s insurance laws.”29 State Farm removed the case to the district
court on the basis of 28 U.S.C. §§ 1332 and 1441.30 State Farm now moves for summary
judgment on all claims as time-barred by the State Farm insurance policy and/or the
applicable statute of limitations.
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”31 The materiality
requirement ensures that “only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.”32
Ultimately, “summary judgment will not lie if the . . . evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”33 However, summary judgment is
mandated “against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of
proof at trial.”34
28Doc. 1-1.
29Id. at 2 ¶ 11.
30Doc. 1.
31Fed. R. Civ. P. 56(a).
32Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
33Id.
34Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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The moving party has the burden of showing that there is no genuine dispute as to
any material fact.35 Where the nonmoving party will bear the burden of proof at trial on a
dispositive issue, the moving party need not present evidence to show that summary
judgment is warranted; it need only point out the lack of any genuine dispute as to material
fact.36 Once the moving party has met this burden, the nonmoving party must set forth
evidence of specific facts showing the existence of a genuine issue for trial.37 All evidence
presented by the non-movant must be believed for purposes of summary judgment, and all
justifiable inferences must be drawn in favor of the non-movant.38 However, the
non-moving party may not rest upon mere allegations or denials, but must show that there
is sufficient evidence supporting the claimed factual dispute to require a fact-finder to
resolve the parties’ differing versions of the truth at trial.39
IV. DISCUSSION
A. Applicable Statute of Limitations/Enforceability of Contractual Limitation
State Farm argues that a two-year statute of limitations or contractual time period
applies to Hickel’s action to recover UIM benefits under the State Farm insurance policy.
First, State Farm contends that Alaska’s two-year statute of limitations for tort claims
involving personal injuries, AS 09.10.070, applies here rather than the three-year statute
of limitations for contract actions, AS 09.10.053.40 Alternatively, State Farm avers that the
contractual limitation provision in the State Farm insurance policy, which requires that a
claimant seeking UIM benefits file suit against State Farm “[w]ithin two years immediately
35Id. at 323.
36Id. at 323-25.
37Anderson, 477 U.S. at 248-49.
38Id. at 255.
39Id. at 248-49.
40Doc. 8 at 5-11.
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following the date of the accident,”41 is enforceable against Hickel.42 Ultimately, however,
the Court does not need to determine which statute of limitations applies or whether the
contractual limitation is enforceable because, as discussed below, whether Hickel’s claims
are time-barred turns on when Hickel’s claims accrued.
B. Accrual Date
State Farm argues that Hickel’s claims accrued, and the statute of limitations began
to run, on March 6, 2012, the date of the accident, because Hickel’s suit sounds in tort
and the State Farm insurance policy’s contractual limitation requires a claimant to file suit
within two years of the accident.43 The Alaska Supreme Court, however, “ha[s] held that
an insured’s cause of action against her insurer generally accrues, and the statute of
limitations begins to run, ‘at the time of the breach of the agreement,’ therefore ‘[a] cause
of action for denial of coverage under an insurance policy accrues when coverage is
disclaimed and the insured is notified.’”44 Although it has not specifically addressed when a
UIM claim accrues, the Alaska Supreme Court held in McDonnell that, with respect to
uninsured motorist (“UM”) claims, “the limitations period is triggered by an alleged breach
of the insurance contract.”45 Likewise, the Alaska Supreme Court held in the same case
that a policy’s provision shortening the applicable statute of limitations may be enforceable,
but the policy cannot modify the accrual date of the claim from the date of the alleged
breach of contract to the date of the accident.46
41Doc. 7-7 at 3.
42Doc. 8 at 11-14.
43Doc. 8 at 7-11.
44McDonnell v. State Farm Mut. Auto. Ins. Co., 299 P.3d 715, 726-27 (Alaska 2013)
(quoting Brannon v. Continental Cas. Co., 137 P.3d 280, 284 (Alaska 2006)).
45Id. at 728 (Alaska 2013).
46Id. at 733.
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According to State Farm, the Alaska Supreme Court would have decided
McDonnell differently had it been confronted with a suit for UIM, rather than UM,
benefits.47 But the reasoning for the Supreme Court’s decision in McDonnell applies
equally in the context of UIM claims. As with UM claims, “an alleged breach of contract
accrual date is more consistent with Alaska case law, the contractual nature of [UIM]
claims, and a majority of jurisdictions.”48 Moreover, State Farm’s argument ignores the
fact that no justiciable controversy existed under the State Farm insurance policy until a
breach of that policy actually occurred, and Hickel did not know at the time of the accident
whether the extent of her injuries and the limits of the tortfeasor’s policy qualified her for
UIM coverage.49 Accordingly, Hickel’s claim accrued, and the relevant statute of
limitations or policy time period began to run on the date that State Farm breached the
insurance policy.
Under Alaska law, “it is not necessary for an insurer to disclaim all coverage or
liability in order to trigger the statute of limitations—a clear refusal to pay under the contract
may be sufficient to constitute an alleged breach of the contract.”50 State Farm contends
that the latest possible date of the alleged breach was September 30, 2015, when State
47Doc. 8 at 5, 12.
48McDonnell, 299 P.3d at 728; see also Vega v. Farmers Ins. Co., 918 P.2d 95, 97-98
(Or. 1996) (noting that, by holding that the statute of limitations begins to run when the insurer
breaches the contract by denying a claim for UIM benefits, not when the accident occurs, it had
joined the majority of states that have considered the issue).
49State Farm argues in passing that the Alaska Supreme Court may conclude that the
statute of limitations began running on Hickel’s UIM claim on December 16, 2014, when she
settled the underlying claim against Kane and knew of her potential UIM claim. Doc. 8 at 12. In
some jurisdictions, UIM claims accrue when the claimant receives payment of settlement or
judgment on the underlying bodily injury liability claim, but State Farm provides no persuasive
reason to believe that the Alaska Supreme Court would so hold in light of the existing case law on
insurance recovery claims and the absence of statutory authority.
50McDonnell, 299 P.3d at 727-28.
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Farm paid Hickel $10,000, the undisputed portion of Hickel’s claim.51 Examining State
Farm’s accompanying letter in isolation provides some indicia of a clear refusal to pay
because the letter notes that the parties had “reached an impasse.”52
However, the payment was made in response to Hickel’s demand for the
“undisputed portion of the claim,” in which counsel reserved “Ms. Hickel’s continued right
to demand payment of the remaining UIM BI policy limits.”53 Likewise, State Farm’s
September 30, 2015 letter states that the $10,000 payment “constitutes our initial offer”
and that:
The remaining coverage available will be reduced by the enclosed advanced
payment. This payment will also be credited against any final determination of
damages.
This payment should be considered an advance without prejudicing your client’s
right to receive a higher amount in the future through continued negotiations.
We will continue to evaluate any and all new information you may have that could
affect our evaluation.
Should you wish to mediate or arbitrate this claim, please contact us and we will
arrange a time and place convenient to all parties.54
Hickel has also submitted later correspondence from State Farm, including a
January 13, 2016 letter asking for a response to its $10,000 settlement,55 and a
September 5, 2017 letter confirming receipt of Hickel’s August 28, 2017, demand for
policy limits due to ongoing complications and requesting supporting documentation.56
According to Hickel, it was not until State Farm’s legal counsel issued the October 26,
2017 letter reflecting State Farm’s belief that Hickel’s UIM claim was time-barred that
51Doc. 25 at 6.
52Doc. 21-4 at 9.
53Id. at 8.
54Id. at 9.
55Id. at 11.
56Id. at 13.
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State Farm communicated a clear refusal to pay the entirety of Hickel’s claim in breach of
the insurance policy.57
In the context of a motion for summary judgment, the Court must draw all
inferences in the light most favorable to the nonmoving party.58 Further, the Court may not
make credibility determinations or weigh conflicting evidence.59 Applying these rules to this
case, the Court determines that a genuine issue of material fact exists as to when State
Farm allegedly breached the contract and Hickel’s claim for UIM benefits accrued.60 State
Farm does not establish an absence of factual dispute regarding when Hickel knew or
reasonably should have known about State Farm’s breach and bad faith actions. In the
light most favorable to Hickel, a reasonable factfinder could conclude that the alleged
breach did not occur until October 26, 2017, a mere eleven days before Hickel filed suit,
when counsel for State Farm advised Hickel of State Farm’s belief that her UIM claim was
time-barred. Thus, State Farm has failed to establish that Hickel’s action is untimely as a
matter of law, and the motion for summary judgment must be denied.
57Doc. 21 at 31.
58Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).
59Id.
60See McDonnell, 299 F.3d at 728 (noting that parties’ disagreement over when the
contract was allegedly breached and the statute of limitations began to run is a factual issue to be
resolved by the factfinder).
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V. CONCLUSION
For the reasons above, the motion for summary judgment at docket 7 is DENIED.
DATED this 31st day of August 2018.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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