Nicholas v. Progressive Direct Insurance Company

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ANTHONY NICHOLS,
Plaintiff,
v.
PROGRESSIVE DIRECT INSURANCE
COMPANY,
Defendant.
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) 	Case No. CIV-24-813-PRW
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ORDER
Before the Court is Plaintiff’s Motion for Partial Summary Judgment (Dkt. 28). This
matter has been fully briefed and is ripe for decision. For the reasons that follow, Plaintiff’s
Motion (Dkt. 28) is DENIED.
Background
This action arises from an insurance claim after Plaintiff’s car caught fire. After
submitting his claim to Defendant, Plaintiff alleges that Defendant failed to handle his
claim in good faith, subjecting him to an unreasonable fraud investigation. Plaintiff
originally brought this action alleging Breach of Contract and Breach of the Duty of Good
Faith and Fair Dealing. However, subsequent to filing this action, Defendant paid for the
repair of Plaintiff’s vehicle in excess of the preliminary estimate in Plaintiff’s Complaint.
Accordingly, Plaintiff now seeks only attorney’s fees and filing costs as to his Breach of
Contract Claim.
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Legal Standard
Rule 56(a) of the Federal Rules of Civil Procedure requires “[t]he court [to] grant
summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” In considering a motion for
summary judgment, a court must view all facts and reasonable inferences in the light most
favorable to the nonmovant.1 Courts are not to weigh the evidence and determine the truth
of the matter asserted, but instead are to determine only whether there is a genuine dispute
for trial before the fact-finder.2 A fact is “material” if, under the substantive law, it is
essential to the proper disposition of the claim.3 A dispute is “genuine” if there is sufficient
evidence on each side so that a rational trier of fact could resolve the issue for either party.4
When, as here, the nonmoving party has the ultimate burden of persuasion at trial,
the moving party “has both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter
of law.”5 “The moving party may carry its initial burden either by producing affirmative
evidence negating an essential element of the nonmoving party’s claim, or by showing that
the nonmoving party does not have enough evidence to carry its burden of persuasion at
1 Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citations omitted).
2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
3 Id. at 248.
4 Id.
5 Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002), as amended
on denial of reh’g (Jan. 23, 2003) (citing Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210
F.3d 1099, 1102 (9th Cir. 2000)).
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trial.”6 “Once the moving party points out the absence of evidence to create a ‘genuine
issue’ of a ‘material fact’ on which the non-moving party bears the burden of proof at trial,
. . . [t]he non-moving party must set forth specific facts showing there is a genuine issue
for trial.”7
Analysis
I. 	Plaintiff is not entitled to attorney’s fees and costs at this stage.
Plaintiff essentially demands attorney’s and filing fees because he was not paid until
after he filed this action, presumably indicating that this action was the cost of getting
Progressive to hold up its end of the insurance policy. However, Plaintiff has provided no
evidence to the Court that the filing of this action caused Progressive to issue payment.
Only in his Reply does Plaintiff identify a legal basis for his claim for fees and costs, citing
36 O.S. § 3629(b) for the proposition that he is entitled to attorney’s fees and Federal Rule
of Civil Procedure 54 in favor of his award for costs. However, 36 O.S. § 3629(b) only
allows for an award “[u]pon a judgment rendered to either party[.]” Because resolving this
Partial Motion for Summary Judgment would not render final judgment in favor of either
party, the Court cannot award attorney’s fees as this stage. Further, Rule 54(d) only permits
the award of costs after final judgment.8 So, again, at this stage the Court could not provide
such relief even if Plaintiff were entitled to it as a matter of law.
6 Id.
7 Otis v. Canadian Valley-Reeves Meat Co., 884 F. Supp. 446, 449–50 (W.D. Okla. 1994),
aff’d, 52 F.3d 338 (10th Cir. 1995) (citing Anderson, 477 U.S. at 248).
8 Delta Air Lines, Inc. v. August, 450 U.S. 346, 351 (1981).
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II. 	Plaintiff has not shown Progressive acted in bad faith in handling Plaintiff’s
claim.
“To succeed on a bad faith claim, ‘the insured must present evidence from which a
reasonable jury could conclude that the insurer did not have a reasonable good faith belief
for withholding payment of the insured’s claim.’”9 Plaintiff provides no caselaw to assist
the Court in determining that, as a matter of law, Progressive acted unreasonably in
handling Plaintiff’s claim. Instead, Plaintiff provides the testimony of a former Progressive
employee who details her opinion of what a reasonable handling of a claim would be. This
testimony does not settle the question as a matter of law, and if admitted at trial would only
assist the jury in determining whether Defendant’s actions were reasonable.10 What the
Court knows at this stage is that the fire occurred on May 31, 2024, and Defendant issued
payment for the claim a month and a half later on July 15, 2024. Shortly after Plaintiff
submitted his claim, he consented to Defendant running a credit check, wherein Defendant
discovered that Plaintiff had missed 15 car payments on the damaged car over the previous
30 months, and that Plaintiff had begun shopping for a new car in the days leading up to
9 Shotts v. GEICO General Insurance Co., 943 F.3d 1304, 1314 (10th Cir. 2019) (quoting
Oulds v. Principal Mut. Life Ins. Co., 6 F.3d 1431, 1436 (10th Cir. 1993) (emphasis added).
10Willis v. Midland Risk Ins. Co., 42 F.3d 607, 612 (10th Cir. 1994) (holding that “the
essence of the tort of bad faith by an insurer is ‘bad-faith conduct, including the unjustified
withholding of payment due under a policy, and if there is conflicting evidence from which
different inferences might be drawn regarding the reasonableness of insurer's conduct,
then what is reasonable is always a question to be determined by the trier of fact by a
consideration of the circumstances in each case.’” McCorkle v. Great Atlantic Ins. Co.,
637 P.2d 583, 587 (Okla. 1981) (emphasis added)).
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the fire. Plaintiff asserts that because Progressive did not disclose that the reason for
requesting Plaintiff’s consent to run a credit check was for the purpose of running a fraud
investigation, that renders Defendant’s withholding of immediate payment unreasonable.11
The Court, however, finds that the credit check to which Plaintiff consented could allow a
reasonable jury to conclude Defendant had a good-faith basis for withholding immediate
payment.
For the reasons given, Plaintiff’s Motion (Dkt. 28) is DENIED.
IT IS SO ORDERED this 13th day of January 2026.
11 Plf.’s Reply (Dkt. 37), at 3.
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