Schweitzer v. Old Republic General Insurance Company et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Brooke Schweitzer,
Plaintiff,
v.
Old Republic General Insurance Company,
et al.,
Defendants.
No. CV-24-00440-TUC-SHR (JR)
REPORT & RECOMMENDATION
Before the Court are three motions. First is Defendants Old Republic General
Insurance Company and Gallagher Basset Services, Inc.’s Motion to Strike Testimony of
Elliott Flood (Doc. 34), Defendants’ Motion for Summary Judgement (Doc. 35), and
Plaintiff Brooke Schweitzer’s Motion to Deny Defendants’ Motion for Summary Judgment
for Failure to Comply with Federal Rule of Civil Procedure Local Rule 56.1(a) (Doc. 42).
For the following reasons this Court recommends the district court grant the Defendants’
Motion for Summary Judgment, deny the Plaintiff’s Motion to Deny Defendants’ Motion
for Summary Judgment, and deny the Defendants’ Motion to Strike Testimony as moot.
I. Background
On July 22, 2022, Plaintiff Brooke Schweitzer injured her left shoulder through the
course of her employment at Life Care Centers of America. On August 22, 2022, Plaintiff
reported her injury to her employer and made a workers’ compensation claim. On August
29, 2022, Plaintiff’s employer informed Defendant Old Republic, its workers’
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compensation carrier, and Defendant Gallagher, Old Republic’s third-party administrator,
of Plaintiff’s claim. On October 17, 2022, after investigating Plaintiff’s claim. Defendant
Gallager sent a letter advising Plaintiff of an intent to deny the claim. On October 27, 2022
Defendant Gallagher received a notice of claim from the Industrial Commission of Arizona
(“ICA”). On November 4, 2022, a dispute was timely filed.
On November 18, 2022, Plaintiff underwent an independent medical exam (“IME”)
with Patrick Bays, D.O. Dr. Bays questioned that Plaintiff suffered a workplace injury but
stated that she may have had a temporary exacerbation to a non-work injury. On January
27, 2023, Defendant Gallagher accepted a temporary exacerbation.
On April 27, 2023, after hearing, an ICA Administrative Law Judge issued a final
order awarding Plaintiff medical, surgical, and hospital benefits, as well as temporary total
or temporary partial disability compensation benefits from July 22, 2022 until Plaintiff’s
condition becomes medically stationary. On July 19, 2023, Plaintiff having not been paid
benefits, her workers’ compensation attorney requested a hearing with the ICA pursuant
A.R.S. § 23-1061(J). At some point prior to September 28, 2023, Defendants issued
payment to Plaintiff in full. On November 1, 2023, Plaintiff filed the Complaint.
A. The Complaint
In her complaint Plaintiff asserts two claims for relief. (See Doc. 1-1 at 23-31.) In
Count One, Plaintiff asserts that Defendant Old Republic, by and through its representative
Defendant Gallagher, breached the implied covenant of good faith and fair dealing arising
out of its obligations to Plaintiff, as an insurer under the Arizona Workers’ Compensation
Act. (Id. at 29.) In Count One, Plaintiff alleges that Old Republic breached its duty by: (1)
intentionally denying benefits without a reasonable basis; (2) intentionally denying benefits
without conducting an adequate investigation; (3) denying and delaying benefits with the
knowledge of a lack of a reasonable basis and failing to adequately investigate whether
such denial was supported by a reasonable basis; (4) failing to give at least equal
consideration to Plaintiff’s interests as to the Defendant’s financial interests; (5)
unreasonably interpreting its obligations under the Act in order to delay, decrease, and deny
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benefits; and (6) failing to adopt and implement reasonable standards for investigation in
evaluating benefits due under a claim. (Id. at 29-30.) In Count Two, Plaintiff asserts that
Defendant Gallagher aided and abetted Defendant Old Republic in committing bad faith
against Plaintiff. (Id. at 30.)
II. Plaintiff’s Motion to Deny Motion for Summary Judgment should be
denied.
Plaintiff moves the Court to deny Defendants’ Motion for Summary Judgment for
violating Local Rule 56.1(a). (Doc. 42.) Plaintiff argues that because Defendant failed to
attach a separate statement of facts attached pursuant to Local Rule 56.1(a) and instead
embedded the facts within their Motion (see Doc. 35 at 2-5), the Defendant’s Motion
should be denied. (Doc. 42 at 1-2.) However, the Scheduling Order governing the litigation
in this case directs in relevant part:
Local Rule of Civil Procedure 56.1 is suspended, except for
subsection (d). The Court will decide summary judgment
motions under Federal Rule of Civil Procedure 56 only. The
parties may not file separate statements of facts or separate
controverting statements of facts, but instead must include
all facts in the motion, response, or reply itself. All evidence
to support a motion or response must be attached to the motion
or response. The evidence may include only relevant excerpts
rather than full documents. No new evidence may be submitted
with a reply. A reply may cite only evidence attached to the
motion or response. No party shall presume that the Court will
scour the record for facts or theories that might support either
party’s case. See Claar v. Burlington N. R.R. Co., 29 F.3d 499,
504 (9th Cir. 1994).
(Doc. 17 ¶5(c) (emphasis added).) Accordingly, the Defendant’s Motion for Summary
Judgment is the correct format pursuant to the scheduling order in this case, and Plaintiff’s
Motion (Doc. 42) should be denied.
However, the scheduling order continues:
The Court will rely solely upon the attached evidence to verify
facts asserted in the motion, response, or reply. Each citation
to evidence to support a fact must include a pin citation to at
least one page that proves that fact. Because no separate
controverting statement of facts will be permitted, the
responding party must carefully address all material facts
raised in the motion. Likewise, the reply must carefully address
all material facts raised in the response. Any fact that is not
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addressed may be deemed by the Court to be uncontested.
(Doc. 17 ¶5(c) (emphasis added).) Upon review of the Plaintiff’s filings, she filed an
additional separate statement of facts (Doc. 40-1) and a controverting statement of facts
(Doc. 40-2) both in violation of Local Rule 56.1(a) and the scheduling order. While this
Court does not recommend it, the district court may in its own discretion impose sanctions,
including the dismissal of the case, for Plaintiff’s failure to comply with a court order.
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).
For the foregoing reasons, this Court recommends the district Court deny Plaintiff’s
Motion to Deny Defendant’s Motion for Summary Judgment (Doc. 42).
III. Defendants’ Motion for Summary Judgment should be granted.1
Defendants move for summary judgment as to both counts of the complaint.
Defendant Old Republic moves for summary judgment as to Count One arguing that there
was a reasonable basis for the denial of Plaintiff’s workers’ compensation claim, that
Plaintiff failed to establish the Defendants knowingly and intentionally acted without a
reasonable basis, and the delay in payment of was caused by Plaintiff’s failure to provide
required documentation. (Doc. 35 at 14.) Next, Defendant Gallagher Bassett argues that
because Plaintiff fails to show evidence for a separate tort in addition to the underlying bad
faith claim it is entitled to summary judgment as a matter of law as to Count Two. For the
following reasons this Court recommends granting Defendants’ Motion.
A. Legal Standard
A court must 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.”
Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The
movant bears the initial responsibility of presenting the basis for its motion and identifying
those portions of the record, together with affidavits, if any, that it believes demonstrate
1 The Parties have requested oral argument. (See Docs. 35, 40.) Because oral
argument will not aid the Court’s decision, the Parties’ request is denied. See LRCiv 7.2(f);
Lake at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir.
1991).
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the absence of a genuine issue of material fact. Id. at 323. A genuine dispute exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party,”
and material facts are those “that might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
At summary judgment, the judge's function is not to weigh the evidence and
determine the truth but to determine whether there is a genuine issue for trial. Id. at 252. In
its analysis, the court must believe the nonmovant's evidence and draw all inferences in the
nonmovant's favor. Id. at 255. In reviewing the evidence, the court need only consider the
cited materials, but it may consider any other materials in the record. Fed. R. Civ. P.
56(c)(3).
A movant is entitled to judgment as a matter of law 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. Celotex, 477 U.S. at 322. In
Celotex, the Supreme Court explained: “In such a situation, there can be ‘no genuine issue
as to any material fact,’ since a complete failure of proof concerning an essential element
of the nonmoving party's case necessarily renders all other facts immaterial. The moving
party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed
to make a sufficient showing on an essential element of her case with respect to which she
has the burden of proof.” Id. at 322–23.
Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge ...
ruling on a motion for summary judgment,” the “mere existence of a scintilla of evidence
in support of the plaintiff's position [is] insufficient....” Anderson, 477 U.S. at 252, 255.
“Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
“Conclusory allegations unsupported by factual data cannot defeat summary judgment.”
Rivera v. Nat'l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003).
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B. Evidentiary Issues and Factual Disputes
Within Plaintiff’s controverting statement of facts, she objects to one of Defendants’
facts, and controverts ten others.2 (See Doc. 40-2.) First, Plaintiff objects to the assertion
that when initially questioned by an employer representative she did not know what
specific incident or event caused her injury on the grounds that such statement is hearsay.
(Id. at 2.) However, a statement made by an opposing party and offered against the same
party, such as Plaintiff’s statement to her employer here, is not hearsay. Fed. R. Evid.
8(d)(2)(A). Accordingly, Plaintiff’s objection will be overruled. Plaintiff’s remaining
factual disputes, if material, will be addressed individually as the corresponding facts are
recited in the following subsection.
Defendants object to nearly the entirety of Plaintiff’s statements of fact for various
reasons. (See Doc. 49 at 8-11.) First, Defendants object to 20 different paragraphs3 of
Plaintiff’s statement of facts because they allege those paragraphs contain sentences with
no citation to underlying supporting evidence. (Doc. 49 at 8.) Upon review, Plaintiff does
not cite evidence in accordance with the Court’s Scheduling Order (“[e]ach citation to
evidence to support a fact must include a pin citation to at least one page that proves that
fact,” (Doc. 17 ¶5(c)), nor does she utilize any other known convention of legal citation,
and instead simply lists multiple citations at the end of each paragraph without designating
to which factual assertion the corresponding evidence belongs. (See generally Doc. 40-1.)
Next, Defendants object to six paragraphs4 which they contend contain conclusory
legal opinions. (Doc. 49 at 8-9) Upon review, the last sentence of Plaintiff’s Paragraph
11—that Defendants were required to pay wages owed within 30 days of the final Industrial
Commission decision—is an improper and unsupported legal assertion, as well as a
mischaracterization of the underlying evidence. (See Doc. 40-1 ¶ 11; Doc. 41-12 at 3.)
Plaintiff’s cited evidence, an affidavit from her worker’s compensation attorney Arthur
2 (See Doc. 40-2 ¶¶ 18, 19, 20, 23, 28, 29, 37,38, 39, 40.)
3 (See Doc. 40-1 ¶¶ 1, 2, 3, 5, 7, 9, 10, 16, 17, 18, 22, 23, 25, 26, 27, 29, 30, 33, 40,
42)
4 (See Doc. 40-1 ¶¶ 11, 13, 16, 29, 33, 42.)
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Gage, opines that based on his experience benefits should have been paid in 30 days. (Doc.
41-12 at 3.) Mr. Gage did not opine that the Defendants are legally required to do so. (See
id.) Plaintiff repeats this unsupported legal conclusion in Paragraph 13. (Doc. 40-1, ¶ 13.)
These portions of the Plaintiff’s statement of fact will be disregarded by the Court as they
are unsupported, and inaccurate, conclusory legal opinions, as well as likely violations of
Federal Rule of Civil Procedure 11(b).5
In Paragraph 16, Plaintiff asserts that Attorney Gage opines that “he has never had
to send nor a duty to send a status report a Ms. Berrington incorrectly testified was required
5 Federal Rule of Civil Procedure 11(b) states:
By presenting to the court a pleading, written motion, or other
paper--whether by signing, filing, submitting, or later
advocating it--an attorney or unrepresented party certifies that
to the best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase
the cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument
for extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably
based on belief or a lack of information.
(emphasis added). As explained in more specific detail infra, Plaintiff’s briefings are rife
with both legal and factual contentions which are either unwarranted, incorrect, misleading,
or unsupported. Should Plaintiff’s counsel be found to have made these contentions
knowingly, they may be subject to sanction. Fed. R. Civ. P. 11(c).
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by law.” (Doc. 40-1, ¶ 16.) The underlying cited evidence contradicts Plaintiff’s assertion.
First, Attorney Gage states “If [the insurance provider] requires a form they send the form
to us to complete.” (Doc. 41-12 at 3-4.) This contradicts Plaintiff’s assertion as it
reasonably implies that Attorney Gage has previously completed and returned an insurer-
provided status report. Additionally, Attorney Gage never opines in his affidavit on the
legal duty of the parties to submit status reports. (See Doc. 41-12 at 4.) In Paragraph 29,
Plaintiff repeats these legal conclusions as fact. (Doc. 40-1 40-1, ¶ 29.) In sum, these
verifiably inaccurate and misleading factual assertions proffered by Plaintiff are likely Rule
11(b) violations and will be disregarded by the Court. Fed. R. Civ. P. 11(b)(3).
Further, upon review the Court does not interpret Plaintiff’s Paragraphs 33 and 42
as containing improper legal conclusions. (See Doc. 40-1, ¶¶ 33, 42.)
Next, Defendants dispute the characterization of numerous factual assertions6 in the
Plaintiff’s statement of facts. (Doc. 49 at 9-10.) Defendant purports that Plaintiff has
misquoted deposition statements, as well as other various pieces of evidence. (Id. at 9.)
While the Court must believe Plaintiff's evidence and draw all inferences in her favor,
Anderson, 447 U.S. at 255 (emphasis added), it need not consider unsupported factual
assertions contained in the Plaintiff’s statement of facts, including mischaracterizations and
unsupported conclusory allegations. Additionally, knowingly asserting facts which are
unsupported by record evidence is a Rule 11(b) violation. See Fed. R. Civ. P. 11(b)(3).
Accordingly, where the factual assertions found in Plaintiff’s statements of facts are
disputed by Defendants, the Court will consider Plaintiff’s underlying evidence and draw
all inferences which the evidence supports in Plaintiff’s favor. To the extent the Plaintiff’s
factual assertions are unsupported by her underlying evidence, the Court will disregard
such assertions.
Finally, Defendant objects to seven7 of Plaintiff’s exhibits attached to her statement
of facts. (Doc. 49 at 10.) Defendant argues that each exhibit contains unauthenticated
6 (See Doc. 40-1, ¶¶ 1, 2, 3, 4, 6, 7, 8, 10, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25,
26, 27, 29, 30, 36, 37, 39, 40, 41.)
7 (See Docs. 40-5, 40-7, 40-8, 40-9, 40-11, 40-12, 40-13, 40-15.)
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hearsay, and that Exhibit A contains hearsay within hearsay. (Id.) At the summary
judgment stage, the Court must consider evidence that may be presented in a permissible
form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). Defendants do
not explain how the objected to exhibits could not be authenticated by the time of trial, nor
further expound on how Plaintiff relies on hearsay other than the instances previously
addressed supra. Defendants request, at the Court’s discretion, further briefing on the
matter. (Doc. 49 at 11.) However, Defendants could have asked for a page extension to the
immediate briefing to address these concerns but failed to do so prior to filing their reply.
See LRCiv. 7.2(e). Accordingly, Defendants’ objections to Plaintiff’s exhibits will be
overruled, and their request for further briefing will be denied at this time without
prejudice.
C. Relevant Facts8
Defendant Old Republic issued a workers’ compensation insurance policy to Life
Care Centers of America. (DSOF ¶ 2.) In the instant case, Defendant Gallagher acted as a
third-party administrator acting on behalf of Defendant Old Republic to adjust Plaintiff’s
workers’ compensation claim, and all claims handling decisions were made by Defendant
Gallagher. (DSOF ¶¶ 2, 7.)
On July 22, 2022, Plaintiff was injured during her employment at Life Care Centers
of America (“LCCA”). (DSOF ¶ 1; PSOF ¶ 19.) On August 22, 2022, Plaintiff reported the
injury to her employer. (DSOF ¶ 4.) On August 29, 2022, Defendant Gallagher received a
report from Plaintiff’s employer that Plaintiff was alleging a shoulder injury which
occurred during the course of her employment. (DSOF ¶ 3.) The employer’s report stated
that Plaintiff did not know what happened to cause her left shoulder to start hurting. (DSOF
¶ 4.) As recorded in Defendant Gallagher’s claim notes, when questioned by an employer
8 Citations to Defendants’ statement of facts (Doc. 36 at 2-5) appear as “(DSOF ¶ [
].).” While Plaintiff filed a controverting statement of facts, she did not address all facts
asserted by Defendants. (See Doc. 40-2.) Where Plaintiff controverted a fact included in
this section, citations to Plaintiff’s statement appear as “(PCSOF ¶ [ ].).” Where Plaintiff
failed to dispute or otherwise controvert facts contained Defendants’ statement, such facts
will be deemed admitted for the purposes of summary judgment. Citations to Plaintiff’s
supplemental statement of facts (Doc. 40-1) appear as “(PSOF ¶ [ ].).”
9 Plaintiff does not cite record evidence to support her assertion. (See PSOF ¶ 1.)
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representative, Plaintiff “state[d] she doesn’t know what happened[,] her upper right10
should[er] just started hurting.” (DSOF ¶ 5; Doc. 35-3 at 2.) Later on August 29, 2022,
Defendant Gallagher received a “Claimant’s Initial Statement.”11 (See Doc. 35-3 at 3-4;
Doc. 40-6 at 29-30.) In the statement, Plaintiff states that on July 22 or 23, 2022, she injured
her left arm when she and two other individuals lowered a “very heavy-set lady” into a
chair. (Doc. 35-3 at 4; Doc. 40-6 at 30.) The statement indicates Plaintiff’s “[l]eft arm was
bothering her and [she] thought it would get better.” (Id.) The statement also indicates that
Plaintiff sought medical treatment through her PCP on August 22, 2022, and did at that
time report that it was a workers’ compensation injury. (Id.) The statement identifies a
single witness to the incident as “Larry,” a C.N.A. (Id.) The statement indicates that
Plaintiff last worked on August 14, 2022. (Id.) Plaintiff stated that she had a workers’
compensation claim for a rotator cuff tear of her opposite shoulder. (DSOF ¶ 18.)12 Plaintiff
was also involved in a motor vehicle accident in 2021, made a claim, and received a
settlement. (DSOF ¶ 19.)13
On August 30, 2022, Defendant Gallagher received an email from a representative
of LCCA labeled in the claim notes as “Initial Employer Contact” as recorded in
Defendant’s claim file on September 15, 2022. (Doc. 40-6 at 31.) The LCCA representative
stated “The facts aren’t really clear. When I was asking her how it happened she kept saying
she didn’t know. She said she was doing her normal job duties and her shoulder just started
hurting.” (Id.) The LCCA representative stated, “Nobody witness[ed] [Plaintiff] getting
injured.” (Id.) The LCCA representative indicated that they questioned the claim because
Plaintiff “doesn’t have a time that it happened, [and] state[d] she wasn’t doing anything
10 It is later determined that Plaintiff’s left shoulder was injured relevant to this case.
11 It is unclear to the Court if the Claimant’s Initial Statement was filled out by Plaintiff
directly or if it is the recorded results of an interview.
12 Plaintiff disputes Defendant’s fact arguing that the cited evidence does not support
this assertion. (Doc. 40-2 ¶ 18.) Upon review of the evidence, Plaintiff is correct, but
Plaintiff admits that she did have a prior workers’ compensation claim on her other
shoulder than the injury relevant to this case. (See id.)
13 Plaintiff disputes Defendant’s fact arguing that the cited evidence does not support
this assertion. (Doc. 40-2 ¶ 19.) Upon review of the evidence, Plaintiff is correct, but
Plaintiff admits that she was involved in the referenced auto accident and received
treatment at a hospital emergency room for back pain and a stomach injury. (See id.)
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when her shoulder started hurting. (Id.) LCCA noted that it does not have any “light duty”
nursing available. (PSOF ¶ 4.)
Defendant Gallagher’s investigation revealed that in 2002 Plaintiff had a rotator
cuff tear with surgical repair on her left shoulder. (DSOF ¶ 23.)14 A claim index was
returned that reflected a motor vehicle accident March 5, 2021, with injury to back, neck,
head, and perhaps other areas of the body. (DSOF ¶ 25.)
On September 15, 2022, an entry in Defendant Gallagher’s claim file indicates “a
denial will be appropriate.” (Doc. 40-6 at 33.) Defendant Gallagher questioned the
legitimacy of the claimed injury based on Plaintiff’s failure to timely report the injury, lack
of a specific mechanism of injury, Plaintiff receiving treatment prior to reporting the claim,
and Plaintiff’s previous injuries and claims. (DSOF ¶ 6.)
On October 17, 2022, Defendant Gallagher, who had previously authorized an MRI
for Plaintiff, sent a letter advising of the intent to deny Plaintiff’s claim. (DSOF ¶ 29.)15
The adjuster then initiated the process for the referral to an independent medical
examination (IME). (DSOF ¶ 30.) On October 27, 2022, notice of claim was received from
the Industrial Commission of Arizona (ICA). (DSOF ¶ 31.) Defendants timely filed a
dispute on November 4, 2022. (DSOF ¶ 32.) On November 7, 2022, the Plaintiff filed a
Request for Hearing before the ICA. (PSOF ¶ 1.)
On November 18, 2022, Plaintiff attended an IME with Dr. Patrick Bays, D.O.
(DSOF ¶ 34.) Dr. Bays reported that Plaintiff alleged she was injured in June 2022. (DSOF
¶ 35.) Dr. Bays questioned whether Plaintiff had sustained a workplace injury but also
stated she may have had a temporary exacerbation of a non-work-related claim. (DSOF ¶
36.) On January 27, 2023, Defendant Gallagher accepted a temporary exacerbation in
reliance on the IME. (DSOF ¶ 37.)
On April 27, 2023, Plaintiff was “awarded temporary total or temporary partial
14 Plaintiff disputes Defendant’s fact indicating that her previous workers’
compensation claim was due to an injury on her right shoulder but otherwise does not
controvert the fact. (See Doc. 40-2 ¶ 23.)
15 Plaintiff disputes Defendants’ assertion that authorizing the MRI is evidence of
good faith on part of the Defendants but otherwise does not controvert the fact. (Doc. 40-
2 ¶ 29.)
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disability compensation benefits, as provided by law, from July 22, 2022 until their
condition becomes medically stationary” by an ICA Administrative Law Judge. (See Doc.
40-5.) On May 5, 2023, Plaintiff’s workers’ compensation attorney, Arthur Gage, sent a
letter to Defendants’ workers’ compensation counsel, Eric Slavin, providing Plaintiff’s
wage information. (See Doc. 40-7.) On June 9, 2023, Arthur Gage sent requests to
Plaintiff’s medical providers to forward billing statements for medical care that Plaintiff
received related to her injury. (See Doc. 35-10.) On June 16, 2023, Defendant Gallagher
requested wage information from LCCA, indicating that Defendant Gallagher required the
information to set the AMW with the ICA. (Doc. 40-6 at 40.) Plaintiff did not provide
monthly status reports or medical status reports (MSRs) to Defendants to verify that she
was or was not earning any money during the period in question. (DSOF ¶¶ 38, 39.)16
Defendants did not send or request MSRs from Plaintiff. (PSOF ¶¶ 38, 39.) The accrued
benefits were paid on September 13, 2023. (DSOF ¶ 40; PSOF ¶ 40; 17 Doc. 35-8; PSOF
¶ 7.) Plaintiff received the desired surgery which was paid for by her health group insurance
carrier and her co-pays were reimbursed by her health care provider. (DSOF ¶¶ 42, 43.)
Defendant Gallagher is not an insurance carrier and does not issue insurance
policies. (DSOF ¶ 8.) Defendant Gallagher is not paid based on decisions to accept or deny
claims; Gallagher received a flat fee per claim related to the claim handling of Plaintiff’s
claim for workers’ compensation benefits. (DSOF ¶ 9.) Defendant Gallagher does not
share the company profits of Defendant Old Republic. (DSOF ¶ 10.) Defendant Gallagher
did not solicit or sell the operative workers’ compensation policy to Plaintiff’s employer,
nor receive a sales commission or premium for the sale of the workers’ compensation
policy to Plaintiff’s employer. (DSOF ¶ 11.) Defendant Gallagher does not pay workers’
compensation claim benefits from its own funds. (DSOF ¶ 12.) Defendant Gallagher is
16 Plaintiff controverts Defendants’ factual assertion that it was Plaintiff’s
responsibility to provide such reports arguing that it was Defendant’s duty to procure such
information, but Plaintiff offers no evidence or legal support for this argument. (Doc. 40-2
¶¶ 38, 39.) The question as to which party has the duty to gather the disputed information
is not a question of fact, but a question of law, which is resolved below.
17 Plaintiff controverts Defendants’ statement of fact by specifying the benefits were
paid in September 2023. (See Doc. 40-2 ¶ 40.)
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unaware of any separate claim activity undertaken by Defendant Old Republic in adjusting
the claim made by Plaintiff. (DSOF ¶ 13.) Defendant Gallager performed claim adjusting
services as a third-party administrator for Defendant Old Republic. (DSOF ¶ 15.) Plaintiff
has never spoken to or communicated directly with Defendant Old Republic. (DSOF ¶
20.)18
D. Issues with the Parties’ Briefing
As a preliminary matter, the Court addresses the condition of Parties’ briefing in
this matter. Within their filings both Parties make inaccurate citations to their own factual
statements or make citations to materials not contained in the record. In Defendants’
Motion, the Defendants make citation to their statement of facts, where it appears the
citation should be to the complaint. (Doc. 35 at 7:18-19 (asserting the ICA dispute was
timely filed on November 4, 2022, and citing “SOF 18;” see Doc. 35 at 4 ¶ 18 (“Plaintiff
had a prior workers’ compensation claim for a rotator cuff tear.”), compare with Doc. 1-1
¶ 18 (“On November 4, 2022, Defendant…issued a Notice of Claim Status, denying
Plaintiff’s claim.”) .) Further, Defendants make citations to evidentiary materials they did
not include in their filings. (See Doc. 35 at 5 ¶ 40 (citing Ex. 11 at 116:20-21).)19 The
Court has also found instances of Defendants’ misciting their own statement of fact. (See
Doc. 35 at 16:27 (citing “SOF 24-25”).) However, these factual assertions are found
elsewhere in Defendants’ fact section. (See DSOF ¶¶ 38, 39.)
In her Response, Plaintiff does not cite a single case, statute, or any other form either
of controlling or persuasive legal authority in support of her bad faith insurance claim
argument, nor to explain to any extent why her factual assertions create a material dispute
of fact which would allow her to survive summary judgment based on the evidence she has
provided. (See Doc. 40 at 2-13.) Further, Plaintiff’s Response contains numerous factual
18 Plaintiff disputes Defendant’s fact arguing that she did communicate with
Defendant Old Republic through its agents. (Doc. 40-2 ¶ 20.) The agents Plaintiff lists to
support the assertion are Paula Arnett, an employee of Defendant Gallagher, and Eric
Slavin, an attorney who represented the Defendants during the relevant ICA hearings. (See
id.) Therefore, is uncontroverted that Plaintiff never spoke or communicated with
Defendant Old Republic directly.
19 The cited deposition page is not included in the Defendant’s attachments (See Doc.
35-12.)
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and legal assertions which she has chosen not to support with any citation. (See id.)20 Where
Plaintiff did choose to include citations in her Response, she repeatedly and improperly
cites her statement of facts for conclusory legal opinions which are not supported by any
identified statutes or case law. (See id.)21 The third and ultimately most troublesome issue
the Court faced when reviewing Plaintiff’s Response is that Plaintiff cites to paragraphs of
her statement of facts for factual assertions which are not found in the cited paragraphs,
nor anywhere else, in her statement of facts. (See id.)22 Additionally, upon further review
of Plaintiff’s underlying evidence, most if not all the factual assertions in Plaintiff’s
Response are not only unsupported by her own evidence but directly contradicted.23 (See
20 For a factual example, Plaintiff asserts that Defendant’s 30(b)(6) representative
“testified at her deposition that the delay in paying Plaintiff was primarily due to a lack of
Monthly Status Reports (MSR) in the Defendant’s claim file.” (Doc. 40 at 7.) Upon review
of the representative’s
21 For example, Plaintiff asserts in her Response “it is the responsibility of the
insurance company…to send out [MSRs][,]” and cites to her statement of fact, which in
turn cites to the opinion of Mr. Gage, which in turn does not even support this legal
assertion. (Doc. 40 at 8; see Doc, 41-12 at 4.) In the same paragraph, Plaintiff asserts “it is
the duty of the carrier to pay wages within 30 days[,]” and again cites to paragraph six of
her statement of facts. (Doc. 40 at 8.) Paragraph six reads “Defendants wrote in the case
notes after ‘Complete 3-pt contacts by 08/29/22’ that this was completed and documented.
As part of that contact they were to interview any witness, but never did so.” (PSOF ¶ 6.)
Nowhere in the Response does Plaintiff provide any support for these legal conclusions.
(See Doc. 40.)
22 For example, Plaintiff asserts in her Response that the existence of a witness was
contained in doctor’s reports as well as testified to during her ICA hearing. (Doc. 40 at 11.)
For support she cites the first paragraph in her statement of facts. (Id. (citing PSOF ¶ 1).)
Paragraph one of Plaintiff’s statement of facts does not include any mention of a witness,
nor doctor reports. (See PSOF ¶ 1.) The only doctor’s report in the record does not mention
any witnesses. (See Doc. 37.) Further, where Plaintiff does recount testimony of the ICA
hearing in her statement of fact she also does not mention having testified to the existence
of any witnesses. (PSOF ¶¶ 9, 10.) Finally, neither the ICA award nor the affidavit of Mr.
Gage, cited by the relevant paragraph of the statement of facts, includes any assertion as to
the existence of a witness. (See Docs. 40-5, 40-12.)
23 For example, Plaintiff asserts that her counsel’s paralegal, Lauretta Meyers,
contacted Defendant’s representative, Paula Arnett, seven times between May 19 through
July 11, 2023, and asserts that Defendant never received an answer. (PSOF ¶ 13.) However,
the first sentence in an email sent on May 25, 2023, as provided by Plaintiff, from Meyers
to Arnett reads “Thank you so much Paula for talking with me this morning.” (Doc. 41-5
at 9.) An additional example is that Plaintiff contends in her Response that “the claim was
initially denied, according to Defendants, was due to lack of witness as to how and
[Plaintiff] was injured (sic).” (Doc. 40 at 11.) The cited portion of her statement of fact
does not support this assertion. (See PSOF ¶ 6 (“Defendants wrote in the case notes after
‘Complete 3-pt contacts by 08/29/22’ that this was completed and documented. As part of
that contact they were to interview any witness, but never did so.” (internal citations
omitted)).) The reason Defendants denied Plaintiff’s claim, uncontroverted by Plaintiff,
was “…the legitimacy of the claimed injury based on Plaintiff’s failure to timely report the
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id.) If these numerous verifiably incorrect legal and factual assertions were made
knowingly by Plaintiff, they are Rule 11(b) violations. See Fed. R. Civ. P. 11(b)(2)-(4).
E. Count One – Insurance Bad Faith
In Plaintiff’s Count One, she alleges that Defendant Old Republic breached the
implied covenant of good faith and fair dealing when processing Plaintiff’s claim. (Doc. 1-
1 at 29.) Defendant moves for summary judgment, arguing that Plaintiff failed to show the
necessary elements to prevail on a bad faith claim and therefore it is entitled to judgment
in its favor as a matter of law. (Doc. 35 at 14.) For the following reasons, the undersigned
recommends that the district court grant summary judgment in favor of Defendant Old
Republic as to Count One.
1. Legal Standard
An insurer breaches the implied covenant of good faith and fair dealing when it,
“intentionally denies, or fails to process or pay a claim, without a reasonable basis.” Zilisch
v. State Farm Mut. Auto. Ins., 196 Ariz. 234, 237 (2000) (quoting Noble v. Nat'l Am. Life
Ins., 128 Ariz. 188, 190 (1981)). Arizona law employs a two-part test for bad faith claims.
Christie's Cabaret of Glendale LLC v. United Nat'l Ins., 562 F.Supp.3d 106, 121 (D. Ariz.
2021).
Part one is an objective test, asking “whether the insurer acted unreasonably toward
the insured.” Id. Thus, if the actions taken on the part of the insurance company were
reasonable, the insurance company will not be found to have acted in bad faith. Trus Joist
Corp. v. Safeco. Ins. Co., 153 Ariz. 95, 104 (Ct. App. 1986). In determining whether the
insurance company acted reasonably in a case premised on failure to pay benefits, the Court
considers whether the insurer's liability under the policy was “fairly debatable.” See Deese
v. State Farm Mut. Auto. Ins. Co., 172 Ariz. 504, 508 (1992). Accordingly, under the first
prong, Defendants can challenge claims that are fairly debatable without having acted in
bad faith. See Clearwater v. State Farm Mut. Auto. Ins. Co., 164 Ariz. 256, 260 (1990).
injury, lack of a specific mechanism of injury, Plaintiff receiving treatment prior to
reporting the claim, and Plaintiff’s previous injuries and claims[,]” not the lack of
witnesses. (See DSOF ¶ 6.)
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Part two is a subjective test, considering “whether the insurer acted knowingly or
with reckless disregard as to the reasonableness of its actions.” Christie’s Cabaret, 562
F.Supp.3d at 121. At the summary judgment stage, the subjective prong asks if sufficient
evidence exists from which a reasonable juror “could conclude that in the investigation,
evaluation, and processing of [a] claim, the insurer...either knew or was conscious of the
fact that its conduct was unreasonable.” Finkelstein v. Prudential Ins. Co. of Am., 709
F.Supp.3d 828, 845 (D. Ariz. 2024). An insurer's belief is normally a question of fact
determined by a jury. Temple v. Hartford Ins. Co. of Midwest, 40 F.Supp.3d 1156, 1166
(D. Ariz. 2014). But “if the insured offers no significantly probative evidence that calls into
question the insurer's subjective belief[,]...the court may rule on the issue as a matter of
law.” Id.
2. Analysis
Here, Defendant Old Republic moves for summary judgment as to Count One on
two grounds. First, Defendant argues that because there was a reasonable basis for denying
Plaintiff’s claim, it is entitled to summary judgment as a matter of law. (Doc. 35 at 14.)
Next, Defendant argues that because Plaintiff has failed to introduce evidence of
consciously unreasonable conduct on part of the Defendants, she has failed to prove an
essential element of her bad faith claim, and therefore it is entitled to summary judgment
as a matter of law. (Doc. 35 at 16-17.)
In turn, Plaintiff focuses on two specific parts of the claim process where she asserts
the actions of the Defendants show they acted in bad faith. First, Plaintiff asserts Defendant
Gallagher24 failed to conduct an adequate investigation because a witness was not
interviewed before the claim was denied. (Doc. 40 at 11-12.) Second, Plaintiff asserts
Defendant Gallagher’s delay of payment to Plaintiff was a result of bad faith. (Doc. 40 at
7-12.) For the following reasons, the undersigned recommends that summary judgment be
granted in favor of Defendant Old Republic as to Count One of the Complaint.
24 It is not disputed that Defendant Gallagher, as third party claim administrator, was
acting as an agent of Defendant Old Republic, and therefore Defendant Old Republic can
be held liable for the actions of Defendant Gallagher. (See Docs. 35, 49.)
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i. Failure to Adequately Investigate
Defendants assert that because Plaintiff’s entitlement to workers’ compensation
benefits was fairly debatable, her bad faith claim fails as a matter of law. (Doc. 35 at 14-
17; Doc. 49 at 4-5.) However, “fair debatability cannot be raised where the insurer failed
to make an adequate investigation.” Rawlings v. Apodaca, 151 Ariz. 149, 156 (1986)
(citing Farr v. Transamerica Occidental Life Ins., 699 P.2d 376 (Ariz. Ct. App. 1984)). A
reasonable insurer must conduct a “neutral and detached investigation.” See Linthicum v.
Nationwide Life Ins., 723 P.2d 703, 712 (Ariz. Ct. App. 1985). Accordingly, “The
appropriate inquiry is whether there is sufficient evidence from which reasonable jurors
could conclude that in the investigation, evaluation, and processing of the claim, the insurer
acted unreasonably and either knew or was conscious of the fact that its conduct was
unreasonable.” Zilisch, 196 Ariz. at 238. But “there are times when the issue of bad faith
is not a question for the jury.” Aetna Cas. & Sur. Co. v. Superior Ct., 161 Ariz. 437, 440
(Ct. App. 1989). Because “An insurance company's failure to adequately investigate only
becomes material when a further investigation would have disclosed relevant facts.” Id.
Plaintiff argues that because Defendant Gallagher did not interview Larry, its
investigation was per se unreasonable. (Doc. 40 at 11-12.) Plaintiff offers no legal support
for her position. (See id.) Plaintiff asserts “[a] reasonable jury could determine that this was
just plain deliberate lack of procedure and process of the claim.” (Id.) Plaintiff also
contends that it was customary for Defendant to interview witnesses to an injury,
“especially when the claim is contested.” (Id.)25 However, “negligence alone is insufficient
to impose liability on an insurer for the tort of bad faith.” Trus Joist Corp. 153 Ariz. at 104
(Ct. App. 1986).
Here, Plaintiff has “not advised this court, specifically or otherwise, concerning
what additional pertinent facts would have been determined by” Defendant interviewing
Larry. Aetna Cas. And Sur. Co., 161 Ariz. At 440. Further, Plaintiff “ha[s] not shown that
any further investigation would have led to the discovery of relevant facts establishing
25 Plaintiff provides no citation to record evidence for this assertion.
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coverage.” Henrickson v. Am. Fam. Ins. Grp., 2008 WL 11446832, at *6 (D. Ariz. Mar.
21, 2008). While Plaintiff contends “Part of the reason the claim was initially denied,
according to the Defendants, was due to a lack of witnesses,” (Doc. 40 at 11), she provides
no evidence that this assertion is factually accurate. The reasons Defendant denied
Plaintiff’s claim are uncontroverted: “Plaintiff’s failure to timely report the injury, lack of
a specific mechanism of injury, Plaintiff receiving treatment prior to reporting the claim,
and Plaintiff’s previous injuries and claims” (DSOF ¶ 6.) Plaintiff does not—to any
extent—explain how interviewing Larry would have led to the discovery of facts relevant
to the uncontroverted reasons Defendant Gallagher denied her claim. Plaintiff does not
otherwise introduce any probative evidence that the uncontroverted reasons for
Defendant’s denial of her claim were unreasonable.
In this case, Defendant investigated its coverage of Plaintiff’s injury claim by
ordering an MRI and an IME. (DSOF ¶¶ 29, 30.) Defendants eventually accepted Plaintiff’s
claim pursuant to the result of the IME, namely, that she suffered a temporary exacerbation
to a non-work-related claim. (DSOF ¶ 36.) Plaintiff does not explain, nor even contend,
that Defendant interviewing Larry would have resulted in a different outcome to the
investigation. While the ICA ultimately found against the Defendant, this is “not important
to the resolution of the bad faith issue.” Aetna Cas. And Sur. Co., 161 Ariz. At 440.
Accordingly, Plaintiff has failed to show that Defendants investigation was
objectively unreasonable.
ii. Delay of Payment
In determining whether the insurance company acted reasonably in a case premised
on the unreasonable delay in paying benefits, the Court first considers whether such delays
were objectively unreasonable under the circumstances. See Wilke v. Transportation Ins.
Co., 2019 WL 4529618, at *4 (D. Ariz. July 16, 2019) (citing Borland v. Safeco Ins. Co.,
147 Ariz. 195 (Ct. App. 1985)).
Here, Plaintiff was awarded “temporary total or temporary partial disability
compensation benefits” by the ICA on April 27, 2023. (Doc. 40-5 at 6.) But Defendant did
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not pay Plaintiff benefits until September 13, 2023. (Doc. 40 at 6.) Accordingly, at this
summary judgment stage, the Court must determine if Plaintiff has provided probative
evidence which, when taking such evidence in the light most favorable to Plaintiff, shows:
(1) Defendant Gallagher acted objectively unreasonable during the nearly five-month delay
between the award and payment of benefits; and (2) that Defendant Gallagher was
conscious of the fact that its conduct was unreasonable. Finkelstein, 709 F.Supp.3d at 845.
“Disability” under Arizona’s workers’ compensation scheme is related to an
individual's “earning capacity,” not to an individual's physical health or injury thereto.
Garcia v. Regis Corp., 2010 WL 1408825, *2 (D. Ariz. April 7, 2010); see Alsbrooks v.
Indus. Comm'n of Ariz., 118 Ariz. 480, 578 P.2d 159, 163 (1978) (“We hold that when the
statute says ‘disability,’ it means earning capacity disability ....”); R.G. Roth Const. Co. v.
Indus. Comm'n of Ariz., 126 Ariz. 147, 613 P.2d 307, 309 (Ct. App. 1980) (applying
Alsbrooks definition of disability to A.R.S. § 23–1044). Thus, in Arizona workers’
compensation claims, the Industrial Commission is concerned with physical injury or
disability only to the extent that it affects an employee's ability to earn a wage. See Savich
v. Indus. Comm'n of Ariz., 39 Ariz. 266, 5 P.2d 779, 780 (Ariz.1931) (“The word
‘disability’ as used in our Compensation Act, does not mean disablement to perform the
particular work petitioner was doing at the time of his injury, but refers to injuries which
result in impairment of earning power generally.... It applies to earning power and not to
inability to do a certain class of work.”). This is codified in the relevant Arizona statute:
“For temporary partial disability there shall be paid during the period thereof sixty-six and
two-thirds percent of the difference between wages earned before the injury and the wages
that the injured person is able to earn thereafter.” A.R.S. § 23-1044(A) (emphasis added).
Accordingly, to establish the AMW not only is wage information required but also
information regarding the “the difference between wages earned before the injury and the
wages that the injured person is able to earn thereafter,” i.e. the Plaintiff’s “work status.”
Id. As the injured worker, this is the Plaintiff’s burden to establish. Douglas v. Indus.
Comm’n, __ P.3d __, 2025 WL 3768013, *2 (Ariz. Ct. App. Dec. 30, 2025) (citing Zapien
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v. Indus. Comm’n, 12 Ariz.App. 334, 336 (1970)).
Indeed, Plaintiff concedes that she was required to provide to Defendant Gallagher
“whatever information is deemed relevant by the carrier.” (Doc. 40 at 5.) Plaintiff then
argues that it is undisputed that Defendant Gallagher had all the relevant information to set
the AMW, namely, “that she was earning $34 an hour working 40 hours a week” by
September 15, 2022. (Id.) While it is undisputed that on August 29, 2022, Plaintiff
informed Defendant Gallagher that she was assigned a modified duty work status, (DSOF
¶ 38; PCSOF ¶ 38; Doc. 35-3 at 4; Doc. 40-6 at 30), there is no evidence in the record that
Plaintiff, or anyone else, provided her work status to Defendants after that date.
Accordingly, this Court finds that Plaintiff, having the burden to do so, failed to provide
the necessary information to Defendants in order for the AMW to be set. See Douglas,
2025 WL 37681013, *2.
Plaintiff argues repeatedly that “Defendants should have paid [Plaintiff’s] wages
within 30 days of the [ICA] decision.” (See e.g. 40 at 4) Plaintiff cites Mr. Gage’s affidavit,
but as explained above, this is a conclusory legal opinion. See supra III.B. Upon further
research and review, the Court cannot find any legal support for this assertion, nor invented
deadline. See A.R.S. § 23-901, et seq.
Still, Plaintiff asserts that Defendant’s delay in paying benefits was unreasonable
and identifies three relevant factual issues for trial. (See Doc. 40 at 7-12.) First, Plaintiff
argues that Defendant committed bad faith by not requesting Monthly Status Reports
(“MSRs”) from Plaintiff. (Id. at 7.) It is undisputed that Defendant did not send MSRs to
Plaintiff. In turn Plaintiff does not explain how then this could be a dispute of material fact
meant for trial. However, as discussed above, it is Plaintiff’s burden to establish the AMW,
regardless of what form such information is presented to the Defendants. See Douglas,
2025 WL 37681013, *2. As Plaintiff points out, Defendant’s claim notes dated June 28,
2023 direct that an adjuster “Request work status from current providers so current
indemnity can be addressed.” (Doc. 40-6 at 43.) Plaintiff does not explain how it would be
objectively unreasonable, nor show bad faith, that Defendant would request the
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information, which she as the injured has the burden to provide by law, directly from her
medical providers. Plaintiff repeatedly asserts that it is the duty of the Defendant to issue
MSRs but does not provide any legal support for that assertion. (See e.g. Doc. 40 at 8.)
Accordingly, Plaintiff has failed to show that Defendant acted objectively unreasonably by
not having information which Plaintiff had the burden to provide.
Further, Plaintiff provides no probative evidence that Defendant knew or should
have known that it was acting in bad faith when it did not issue the benefit payment prior
to establishing the AMW. Plaintiff makes conclusory allegations that because Defendant
eventually issued the benefits without the work status information, information Plaintiff
had the burden to provide, Defendant’s bad faith can be presumed. (Doc. 40 at 9.) Plaintiff
offers again offers no legal support for this argument. “Conclusory allegations unsupported
by factual data cannot defeat summary judgment.” Rivera, 331 F.3d at 1078.
Next, Plaintiff asserts that because Defendants “ignored their own claims file” they
acted in bad faith. (Doc. 40 at 10.) Again, Plaintiff does not identify a specific disputed
fact, material to the case, which would be necessary for trial. Here, Plaintiff instead argues
that because wage calculations can be found in the claim file, Defendant should have issued
benefits. (Id.) As explained above, under Arizona statute the wage calculation is offset by
“the difference between wages earned before the injury and the wages that the injured
person is able to earn thereafter.” A.R.S. § 23-1044(A). As also explained above, it is the
Plaintiff’s burden to provide this information. See Douglas, 2025 WL 37681013, *2.
Accordingly, Plaintiff has failed to establish that Defendant acted objectively unreasonably
by calculating the maximum AMW in its claim notes prior to issuing the payment of
benefits.
Finally, Plaintiff asserts that because Defendant did not establish the AMW, it acted
in bad faith. (Doc. 40 at 12.) This is, again, not a disputed fact, nor material to the case. As
explained above, it is the Plaintiff’s burden to establish the AMW. See Douglas, 2025 WL
37681013, *2. Also as explained above, Defendant did not have the work status
information required to calculate or confirm the AMW pursuant to statute. See A.R.S. §
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23-1044(A).
iii. Conclusion
Here, the Plaintiff has failed to offer any probative evidence that Defendant acted
objectively unreasonably while investigating or processing her claim and has failed to
provide probative evidence that Defendants knew or should have known that they were
acting unreasonably. See Christie’s Cabaret, 562 F.Supp.3d at 121. Accordingly,
Defendants are entitled to summary judgment as a matter of law as to Count One of the
Complaint because Plaintiff has failed to provide evidence to support an essential element
of her claim. Celotex, 477 U.S. at 322. Therefore, the undersigned recommends the district
court grant summary judgment to the Defendants as to Count One.
F. Count Two – Aiding and Abetting
In Plaintiff’s Count Two, she alleges that Defendant Gallagher aided and abetted
Defendant Old Republic’s bad faith against Plaintiff by substantially assisting or
encouraging Old Republic’s bad-faith conduct. (Doc. 1-1 at 30.) Defendant Gallagher
moves for summary judgement arguing that Plaintiff’s aiding and abetting cause of action
fails as a matter of law. For the following reasons, the undersigned finds that Plaintiff’s
Count Two fails as a matter of law, and summary judgment should be granted in favor of
Defendant Gallagher.
1. Legal Standard
In Arizona, to prevail on a claim against aiding and abetting Plaintiff must provide
evidence to establish three elements: “(1) the primary tortfeasor must commit a tort that
causes injury to the plaintiff; (2) the defendant must know that the primary tortfeasor’s
conduct constitutes breach of duty; and (3) the defendant must substantially assist or
encourage the primary tortfeasor in the achievement of the breach.” Wells Fargo Bank v.
Arizona Laborers, Teamsters & Cement Masons Loc. No. 395 Pension Tr. Fund, 201 Ariz.
474, 485 (2002), as corrected (Apr. 9, 2002). “Because aiding and abetting is a theory of
secondary liability, the party charged with the tort must have knowledge of the primary
violation[.]” Id.
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Further, in order “for an aiding and abetting claim against an adjuster or third-party
to be viable, ‘the plaintiff must allege some action taken separate and apart from the facts
giving rise to a claim against the insurer.’” Aguado v. XL Insurance, 721 F.Supp.3d 811,
816 (D. Ariz. 2024) (quoting Whitcomb v. Twin City Fire Ins. Co., 2020 WL 6699499, at
*3 (D. Ariz. Nov. 13, 2020), see Centeno v. Am. Liberty Ins. Co., 2019 WL 568926, at *3
(D. Ariz. Feb. 12, 2019) (“Numerous cases in this District reinforce the determination that
in order for Plaintiff’s aiding and abetting claim…to survive, she must allege some action
taken by these defendants separate and apart from the facts giving rise to the claim against
ALIC.”); Lambert v. Liberty Mut. Fire Ins. Co., 2014 WL 5432154, at *3 (D. Ariz. Oct.
24, 2014) (“[T]he plaintiff must not only allege actions that constitute a breach of the
insurer's duty, but also separate actions performed by the adjuster that substantially assisted
or encouraged the breach.”); Rogers v. Emps. Ins. Co. of Wausau, 2019 WL 13198123, at
*2 (D. Ariz. July 1, 2019) (same); Swift v. Wesco Ins., 2018 WL 11323085, at *2 (D. Ariz.
Sept. 24, 2018) (same); Kubli v. AmTrust Ins. Co. of Kan., 2019 WL 13196105, at *2 (D.
Ariz. Oct. 30, 2019) (same); Midtown Hotel Grp. v. Selective Ins. Co. of Am., 2023 WL
3603677, at *8 (D. Ariz. May 23, 2023) (same); see also Counts v. Tech. Ins., 2019 WL
13195132, at *2 (D. Ariz. July 12, 2019) (“There must be some distinction between the
primary tort and the aiding and abetting conduct. Aiding and abetting is derivative in the
sense that absent a predicate primary tort, there can be no claim for aiding and abetting
which is a secondary form of liability.”)
2. Analysis
Plaintiff has failed to show a distinct action taken by Defendant Gallagher which is
separate and apart from the facts giving rise to the bad faith claim against Defendant Old
Republic and therefore Count Two fails as a matter of law. Here, all allegations made
against Defendant Old Republic for breach of the covenant of good faith and fair dealing
are premised on it being vicariously liable for the actions of its agent, Defendant Gallagher,
as third-party administrator. (See Doc. 1-1 at 23-31.) In fact, Plaintiff admits that “her bad
faith claim is founded entirely on the conduct of Gallagher Basset, not Old Republic.”
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(Doc. 40 at 16.) Accordingly, Plaintiff has failed to produce any probative evidence which
would allow a reasonable jury to infer that Defendant Old Republic took any “distinct”
tortious action “separate and apart” from the conduct of Defendant Gallagher—which
admittedly is the sole basis of her bad faith claim—an essential element of an aiding and
abetting claim. Aguado, 721 F.Supp.3d at 816. Therefore, summary judgment must be
entered in favor of Defendant Gallagher as to Count Two. See Celotex, 477 U.S. at 322-
23. (“[T]here can be ‘no genuine issue as to any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party's case necessarily renders
all other facts immaterial.”).
Plaintiff argues first that Defendant Old Republic can be held liable for Defendant
Gallagher’s breach, because Old Republic has a non-delegable duty to act in good faith.
(Doc. 40 at 15 (citing Walter v. Simmons, 169 Ariz. 229 (1991)).) This is an accurate
statement of law. However, Plaintiff does not explain how that supports her Count Two,
an aiding and abetting claim against Defendant Gallagher, not a bad faith claim on the
theory of vicarious liability against Defendant Old Republic.
Next, Plaintiff argues that courts in the District of Arizona have held that the
existence of a principal-agent relationship between defendants does not, on its own, defeat
an aiding and abetting claim. (Doc. 40 at 16 (citing Morrow v. Boston Mut. Life Ins. Co.,
2007 WL 3287585, at *6 (D. Ariz. Nov. 5, 2007), Inman v. Wesco ins. Co., 2013 WL
2635603, at * 4 (D. Ariz. June 12, 2013)).) While this is an accurate statement of law, it is
completely irrelevant to the instant motion. Plaintiff fails to address any actual element of
her aiding and abetting claim, or most importantly whether she has probative evidence that
Defendant Old Republic took a “distinct” tortious action “separate and apart” from the
conduct of Defendant Gallagher. See Centeno, 2019 WL 568926, at *2-3 (Noting “that an
agent can be liable for aiding and abetting a principle’s breach of the duty of good faith
and fair dealing” but for the claim “to survive, [plaintiff] must allege some action taken by
[the agent] separate and apart from the facts giving rise to the claim against [the
principal].”)
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Accordingly, the undersigned recommends the district judge enter summary
judgement in favor of Defendant Gallagher as to Count Two of the Complaint.
IV. Motion to Strike Testimony
Defendants filed a Motion to Strike Testimony of Plaintiff’s Expert, Elliott Flood.
(Doc. 34.) Defendants argue that Mr. Flood lacks sufficient qualifications, his opinions
lack sufficient basis and foundation, and his testimony is neither reliable nor relevant. (Id.
at 1.) Upon review of Plaintiff’s filings as they relate to the immediate motion for summary
judgment, Plaintiff does not rely on the testimony of Mr. Flood for any reason. (See Docs.
40, 40-1, 40-2.) Therefore, because this order recommends summary judgment be granted
in favor of the Defendants, the undersigned recommends denying Defendants’ Motion to
Strike Testimony as moot.
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RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that
the district court, after its independent review, enter an order ADOPTING this Report and
Recommendation, GRANTING Defendants’ Motion for Summary Judgment (Doc. 35),
DENYING Plaintiff’s Motion to Deny Defendants’ Motion for Summary Judgment (Doc.
42) with prejudice, and DENYING Defendants’ Motion to Strike Testimony (Doc. 34) as
moot.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file
written objections within fourteen days of being served with a copy of the Report and
Recommendation. A party may respond to the other party=s objections within fourteen
days. No reply shall be filed unless leave is granted by the district court. If objections are
not timely filed, they may be deemed waived. Failure to file timely objections to any factual
or legal determination of the Magistrate Judge may be considered a waiver of a party's right
to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003) (en banc). If objections are filed, the parties should use the following
case number: CV-24-440-TUC-SHR.
Dated this 2nd day of March, 2026.
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