Chibike Nwabude v. First American Property and Casualty Insurance Company

 HONORABLE RICHARD A. JONES 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 CHIBIKE NWABUDE, CASE NO. 2:24-cv-01434-RAJ 11 Plaintiff, ORDER ON MOTION FOR 12 SUMMARY JUDGMENT v. 13 FIRST AMERICAN PROPERTY AND 14 CASUALTY INSURANCE COMPANY; 15 Defendant. 16 I. INTRODUCTION 17 18 THIS MATTER comes before the Court on Defendant First American Property and 19 Casualty Insurance Company’s (“First American” or “Defendant”) Motion for Summary 20 Judgment. Dkt. # 17. Plaintiff Chibike Nwabude, proceeding pro se in this action, filed a 21 Response to Defendant’s Motion. Dkt. #19. Defendant subsequently filed a Reply to 22 Plaintiff’s Response. Dkt. # 21. 23 For the reasons set forth below, the Court GRANTS IN PART and DENIES IN 24 PART Defendant’s Motion. 25 II. BACKGROUND 26 This action was originally filed by Plaintiff in Snohomish County Superior Court 27 on July 31, 2024, Cause No. 24-2-05904-31, and removed to this Court by Defendant on 1 September 10, 2024, on the basis of diversity jurisdiction. Dkt. # 1 at ¶ 15 (citing 28 U.S.C. 2 § 1332). 3 Plaintiff is a resident of Lake Stevens, Washington. Dkt. # 17 at 2. Defendant is an 4 insurance company based in California and licensed to conduct business in the State of 5 Washington. Dkt. # 1 at ¶ 4. Plaintiff is the policyholder of a homeowner’s insurance 6 policy issued by Defendant, Policy No. WAPH119575 (the “Policy,” Dkt. # 18-2). Id. ¶ 6. 7 On November 11, 2021, Plaintiff was involved in an accident at his Lake Stevens 8 home which resulted in flooding and extensive water damage. Dkt. # 17 at 2. Plaintiff 9 submitted several insurance claims to Defendant seeking coverage for the damage to the 10 dwelling and various items of Plaintiff’s personal property, as well as for hotel 11 accommodations during remediation. Id. First American accepted coverage for some of 12 the claims submitted by Plaintiff, and issued several payments under the following sections 13 of the Policy: Coverage A – Dwelling ($30,079.21); Coverage C – Personal Property 14 ($38,652.39); and Coverage D – Loss of Use ($11,090.42). Id. at 2–3. 15 At the time of the incident giving rise to the water loss, Plaintiff owned a collection 16 of DVDs reflecting his recordings of personal and family events, television programming, 17 and musical albums. Dkt. # 17 at 3. Plaintiff submits that the DVDs were lying on the 18 floor of his bedroom and accordingly became submerged when that area of the dwelling 19 flooded, destroying the recordings stored on the discs. Id. On February 28, 2023, Plaintiff 20 submitted a list of damaged personal property to Defendant, claiming $36,150.00 for 21 damage to 30 discs in the DVD collection. Id. In support of his claim, Plaintiff supplied 22 Defendant with the following breakdown of the recordings: 23 Burial Ceremonies of Father, Mother & Sister, $3,300.00 each, Total (3) 24 $10,500.00; Wedding Ceremonies of Brother & Sister, $2,600.00 each, Total (2) $5,200.00; 25 Father’s & Mother’s Visits, respectively, $1,700.00 each, Total (2) $3,400.00; Insured’s Graduation Ceremony Total (1) $2,100.00; 26 Remaining 22 Recordings cost $700-$900 each to make. 27 Dkt. # 1-2 at 35; Dkt. # 17 at 3. 1 First American accepted coverage of the damaged DVDs as covered personal 2 property under the Policy, but rejected Plaintiff’s claimed damages of $36,150.00. Dkt. # 3 17 at 3. Instead, Defendant “determined the amount of damages on the DVDs based on 4 the actual cash value of $147.04, which covered the cost of 30 prerecorded DVDs at $5.99 5 each with applicable tax and depreciation.” Id. Subsequently, Plaintiff requested 6 $1,500.00 for each DVD, pursuant to the following Special Limits of Liability section of 7 the Policy: 8 9 SECTION I – PROPERTY COVERAGES … 10 C. Coverage C – Personal Property … 11 3. Special Limits of Liability 12 The special limit for each category shown below is the total limit for each 13 loss for all property in the category. These special limits do not increase the Coverage C limit of liability. 14 … b. $1,500 on securities, accounts, deeds, evidences of debt, letters of 15 credit, notes other than bank notes, manuscripts, personal records, 16 passports, tickets and stamps. This dollar limit applies to these categories regardless of the medium (such as paper or computer software) on which 17 the material exists. 18 This limit includes the cost to research, replace or restore the information from 19 the lost or damaged material. 20 Dkt. # 18-2 at 17 (italics added). 21 Citing the above-italicized language from the Policy, Defendant requested that 22 Plaintiff provide information on “the estimated cost to re-record the DVDs.” Dkt. # 17 at 23 4. First American submits that Plaintiff “failed to provide any information as to ‘the cost 24 to research, replace or restore the information from the lost or damaged material’ as 25 required by the Policy.” Id. Accordingly, Defendant sent a letter to Plaintiff on April 25, 26 2023, informing him that “no additional payment would be made on the DVDs unless he 27 provided an estimate with information on the cost to re-record or replace the recordings.” 1 Id. Plaintiff explained in response that he could not determine the cost to re-record the 2 DVDs because they were irreplaceable. Id. 3 On May 11, 2023, Plaintiff filed a complaint with the Washington State Office of 4 Insurance Commissioner (OIC) in connection with his claim for the DVDs. Id. at 5. The 5 OIC sent a written request to Defendant seeking a response to Plaintiff’s complaint. Dkt. 6 # 1-2 at 33–34. In its response to the OIC, Defendant reiterated that because Plaintiff was 7 “unable to provide [First American] with an estimate to re-produce the recordings, nor 8 provide information to justify the claimed amounts,” Defendant owed Plaintiff “no 9 additional payment for the DVDs.” Id. at 35–36. On June 22, 2023, Plaintiff sent an 10 e-mail to Defendant asserting that the total number of damaged DVDs was 54, rather than 11 30 as originally contemplated, and revising his claimed damages down to $31,500.00. Dkt. 12 # 1-2 at 41. In a subsequent response letter to the OIC, Defendant restated its basis for 13 denial of the claimed damages, citing the Special Limits of Liability provision of the 14 Policy, as well as the provision requiring insured parties to cooperate with First American 15 following a loss: 16 SECTION I – CONDITIONS 17 … 18 B. Duties After Loss In case of a loss to covered property, we have no duty to provide coverage under 19 this policy if the failure to comply with the following duties is prejudicial to us. 20 These duties must be performed either by you, an “insured” seeking coverage, or a representative of either: 21 … 22 5. Cooperate with us in the investigation of a claim; 23 6. Prepare an inventory of damaged personal property showing the quantity, description, actual cash value and amount of loss. Attach all bills, receipts and 24 related documents that justify the figures in the inventory; 25 7. As often as we reasonably require: 26 a. Show the damaged property; 27 b. Provide us with records and documents we request and permit us to make copies; and 1 c. Submit to examination under oath, while not in the presence of another 2 “insured”, and sign the same. 3 Dkt. # 1-2 at 41–42 (citing Dkt. # 18-2 at 28–29). In conclusion, Defendant clarified that 4 should Plaintiff “submit an estimate with detail representing the cost to research, replace 5 or restore the information contained in the DVD recordings, First American will agree to 6 consider the new information.” Dkt. # 1-2 at 42. 7 On July 31, 2024, Plaintiff commenced this action, filing a complaint against 8 Defendant in Washington state court seeking compensatory damages, punitive damages, 9 and “judgment in the amount of $31,000.00 plus interests and costs.” Dkt. # 1-2 at 5. 10 Defendant subsequently removed the action to this Court. Dkt. # 1. Thereafter, counsel 11 for Defendant deposed Plaintiff. During Plaintiff’s deposition, he maintained that the 12 destroyed recordings could never be restored, replaced or recreated, and asserted that 13 Defendant owes him a “reasonable” reimbursement for the loss to the DVDs, in excess of 14 the $147.04 in “actual cash value” as calculated by First American. Dkt. # 18-1 at 48, 50- 15 51. 16 III. LEGAL STANDARD 17 Summary judgment is appropriate if there is no genuine dispute as to any material 18 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 19 The moving party bears the initial burden of demonstrating the absence of a genuine issue 20 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving 21 party will have the burden of proof at trial, it must affirmatively demonstrate that no 22 reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty 23 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party 24 will bear the burden of proof at trial, the moving party can prevail merely by pointing out 25 to the district court that there is an absence of evidence to support the non-moving party’s 26 case. Celotex Corp., 477 U.S. at 325. If the moving party meets the initial burden, the 27 1 opposing party must set forth specific facts showing that there is a genuine issue of fact for 2 trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 3 (1986). The court must view the evidence in the light most favorable to the nonmoving 4 party and draw all reasonable inferences in that party’s favor. Reeves v. Sanderson 5 Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000). 6 However, the court need not, and will not, “scour the record in search of a genuine 7 issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see White v. 8 McDonnell Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court need not 9 “speculate on which portion of the record the nonmoving party relies, nor is it obliged to 10 wade through and search the entire record for some specific facts that might support the 11 nonmoving party’s claim.”). The opposing party must present significant and probative 12 evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 13 952 F.2d 1551, 1558 (9th Cir. 1991). Uncorroborated allegations and “self-serving 14 testimony” will not create a genuine issue of material fact. Villiarimo v. Aloha Island Air, 15 Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). 16 In insurance coverage cases, summary judgment is warranted when “(1) there is no 17 dispute about the facts, and (2) coverage depends solely on the language of the insurance 18 policy.” Stouffer & Knight v. Cont’l Co., 96 Wn. App. 741, 747, 982 P.2d 105 (1999). 19 IV. DISCUSSION 20 Defendant First American moves for summary judgment, contending that “no 21 material facts are disputed and summary judgment hinges on the plain language of the 22 Policy.” Dkt. # 17 at 9–10. Accordingly, and because the Policy is “clear and 23 unambiguous,” Defendant contends that summary judgment is appropriate based on the 24 record in this action. Specifically, Defendant submits that there are no disputes of material 25 fact that (a) First American accepted coverage of the damaged DVDs; (b) the Policy 26 precludes Plaintiff’s sought recovery of $31,000 for the DVDs; and (c) Plaintiff has shown 27 no basis for additional payment on his DVDs. Dkt. # 17 at 10–12. The Court considers 1 each of these arguments in turn. 2 A. First American Accepted Coverage of the Damaged DVDs 3 Plaintiff seeks punitive damages on the basis of his allegation that Defendant 4 “intentionally did not disclose” the fact that Plaintiff’s damaged DVDs were covered by 5 the Policy. Dkt. # 1-2 at 5. Defendant contends, however, that no issue of material fact 6 exists as to First American’s acceptance of coverage of the DVDs. Dkt. # 17 at 10. 7 The Court agrees with Defendant. The evidence demonstrates that First American 8 has openly accepted coverage of the DVD collection as personal records pursuant to the 9 Policy, as Plaintiff acknowledged during his deposition. Dkt. # 18-1 at 44 (Q: “Do you 10 agree with me that First American agreed that there was coverage for your DVDs, right?” 11 A: “Yeah.” Q: “They said it was covered. But they were just going to pay you $5.99 per 12 DVD, right?” A: “Yeah.”). Plaintiff does not offer any evidence rebutting Defendant’s 13 argument that punitive damages are unavailable in light of First American’s acceptance of 14 coverage. Accordingly, the Court GRANTS Defendant’s Motion on Plaintiff’s request for 15 punitive damages, as set forth in Point No. 2 of Plaintiff’s Prayer for Relief. Dkt. # 1-2 at 16 5. 17 B. Plaintiff Is Not Entitled to Damages of $31,000 Under the Policy 18 Defendant also contends that there is no dispute of material fact as to Plaintiff’s 19 claim for $31,500.00 under the terms of the Policy. The Court agrees. The Policy limits 20 damages for all property falling into specified categories of personal property, including 21 personal records: 22 3. Special Limits of Liability 23 The special limit for each category shown below is the total limit for each 24 loss for all property in the category. These special limits do not increase the Coverage C limit of liability. 25 … 26 b. $1,500 on securities, accounts, deeds, evidences of debt, letters of credit, notes other than bank notes, manuscripts, personal records, 27 passports, tickets and stamps. This dollar limit applies to these categories regardless of the medium (such as paper or computer software) on which 1 the material exists. 2 Dkt. # 18-2 at 17 (emphasis added). 3 The DVD collection is property comprising the category of “personal records,” as 4 contemplated by the Policy. Accordingly, applying the “plain and unambiguous” terms of 5 the Policy “as written,” there can be no genuine dispute that Plaintiff’s maximum potential 6 recovery for his damaged DVD collection is $1,500.00. Quadrant Corp. v. Am. States Ins. 7 Co., 154 Wash. 2d 165, 171 (2005). Accordingly, the Court GRANTS Defendant’s 8 Motion on Plaintiff’s request for “judgment in the amount of $31,000,” as set forth in Point 9 No. 3 of Plaintiff’s Prayer for Relief. Dkt. # 1-2 at 5. 10 C. A Dispute of Material Fact Exists as to the Value of the DVDs 11 Finally, Defendant moves for summary judgment as to Plaintiff’s claim for damages 12 in excess of the payments already offered by First American, arguing that Plaintiff “failed 13 to show any basis for additional payment on his DVDs.” Dkt. # 17 at 11. The Court 14 disagrees. 15 Defendant contends that, “[i]n accordance with the terms of the Policy,” First 16 American accepted coverage for the damaged DVDs and “determined the amount of 17 damages based on the actual cash value of $147.04, which covered the cost of 30 18 prerecorded DVDs at $5.99 each with applicable tax and depreciation.” Dkt. # 17 at 11– 19 12. Therefore, according to Defendant, “[t]he facts are undisputed.” Dkt. # 17 at 12. While 20 Defendant may be correct that the foregoing represents an accurate retelling of its handling 21 of Plaintiff’s coverage claim, it does not follow that there is no genuine dispute of material 22 fact with respect to the value of the DVDs. On the contrary, the evidence submitted by the 23 parties clearly highlights a significant and persisting dispute as to this material factual 24 issue. 25 Under Washington law (which Defendant acknowledges applies in this action1), the 26 27 1 Dkt. # 17 at 9 (citing Paulson v. City of San Diego, 294 F.3d 1124, 1128 (9th Cir. 2002). 1 standard for recovery of destroyed personal property is as follows: (1) if the destroyed 2 personal property may have had market value, the measure of damages is the market value; 3 (2) if the destroyed property has no market value but can be replaced or reproduced, then 4 the measure is the cost of replacement or reproduction; and (3) if the destroyed property 5 has no market value and cannot be replaced or reproduced, then the value to the owner is 6 the proper measure of damages. Mieske v. Bartell Drug Co., 92 Wash. 2d 40, 43–44, 7 (1979) (citing McCurdy v. Union Pac. R.R., 68 Wash. 2d 457 (1966)). 8 As the movant for summary judgment, Defendant “bears the burden of showing an 9 absence of a factual dispute with respect to the measure of damages.” Scottsdale Ins. Co. 10 v. Ford Motor Co., No. C10-373 MJP, 2011 WL 2292328, *3 (W.D. Wash. June 8, 2011). 11 Because Plaintiff must ultimately prove damages at trial, Defendant adequately shifts the 12 burden by “simply point[ing] out through argument—the absence of evidence to support 13 [the plaintiff’s] claim.” Id. (citing Deveraux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 14 2011)). First American has done so here by arguing in its Motion that Plaintiff “failed to 15 show any basis for additional payment on his DVDs” beyond the cash value of the discs, 16 based on the “undisputed” fact that Plaintiff “never provided any information to First 17 American” regarding the cost to research, replace, or restore the recordings. Dkt. # 17 at 18 11-12. 19 With the burden shifted, Plaintiff offers evidence relevant to the impossibility of 20 restoring the recordings—and, by extension, the difficulty of valuing the DVDs on this 21 basis. See Dkt. # 19 at 5 (citing deposition testimony reflecting that some of the destroyed 22 DVDs contained recordings of separate family members’ burials, and adding: “Does 23 Plaintiff have to resurrect the dead again . . . in order to recreate and restore the videos of 24 the damaged DVD[s]?”). Plaintiff thereby “has met [his] burden at the summary judgment 25 stage of showing the destroyed property” is irreplaceable and that the measure of damages 26 may be the actual value to the owner, rather than the market value of the discs. Scottsdale, 27 2011 WL 2292328 at *3 (denying defendant’s motion for summary judgment after 1 concluding that the plaintiff adequately identified a genuine dispute as to the value of the 2 destroyed property by submitting a declaration attesting to the difficulty of replacing the 3 property). 4 Plaintiff’s rebuttal is consistent with Washington law. Notwithstanding First 5 American’s repeated requests for restoration or replacement costs, Plaintiff’s explanation 6 that the DVDs were irreplaceable is a legitimate explanation of the difficulty in valuing 7 this kind of destroyed personal property. Nor is the “actual cash value” of the DVDs, as 8 determined by First American, a legitimate measure of recovery under these circumstances. 9 As in Mieske, here, Plaintiff “lost not merely film able to capture images by exposure but 10 rather [discs] upon which was recorded a multitude of [recordings] depicting many 11 significant events” in his life. Mieske, 92 Wash. 2d at 44. Awarding Plaintiff the value of 12 30 prerecorded DVDs is “hardly a replacement of the [DVD recordings] which [he] had 13 recorded over the years.” Id. 14 Accordingly, here, the third category contemplated in Mieske and McCurdy reflects 15 the appropriate measure of damages: in other words, the destroyed property at issue “has 16 no market value and cannot be replaced or reproduced.” Id. Under these circumstances, 17 “the measure of damages is to be determined by the value to the owner, often referred to 18 as the intrinsic value of the property.” Mieske, 92 Wash. 2d at 44. The record in this case 19 reflects that Defendant, in denying recovery beyond the cash value of the prerecorded 20 DVDs, has in at least one instance stated that it “understand[s] the sentimental value of the 21 recorded information,” but nonetheless “no additional payment for the DVDs is owed” 22 without information germane to the cost to reproduce the recordings. Dkt. # 1-2 at 35–36. 23 While it is true that “compensation for sentimental or fanciful values” associated with 24 damaged or destroyed property is not allowed, intrinsic value to the owner is not 25 coextensive with sentimental value. Mieske, 92 Wash. 2d at 45. Rather, the “type of 26 sentiment which is not compensable is that which relates to ‘indulging in feeling to an 27 unwarranted extent’ or being ‘affectedly or mawkishly emotional . . .’” Id. (citing 1 Webster’s Third New International Dictionary (1963)). Plaintiff, by citing the 2 irreplaceability and personal significance of the lost recordings, is not demanding 3 compensation for the “sentimental” value of the recordings. Rather, by requesting a 4 “reasonable value for the damaged DVDs” in order to be “compensated adequately” for 5 the loss thereof, Plaintiff is in effect asking for the intrinsic or actual value of this 6 irreplaceable destroyed property, consistent with applicable law. Dkt. # 19 at 6, 12. 7 The Court acknowledges that the actual or intrinsic value to Plaintiff of the 8 destroyed DVDs may be “difficult to ascertain and measure.” Mieske, 92 Wash. 2d at 44. 9 However, “difficulty of assessment is not cause to deny damages to a plaintiff whose 10 property has no market value and cannot be replaced or reproduced.” Id. (citing 11 Jacqueline’s Washington, Inc. v. Mercantile Stores Co., 80 Wash. 2d 784, 498 P.2d 870 12 (1972)). While the value to the owner “encompasses a subjective element,” id. at 45, a 13 factfinder could very well find that the intrinsic value of the irreplaceable DVDs to the 14 Plaintiff, exclusive of any noncompensable “sentimental” value, exceeds the $147.04 15 quoted by First American.2 As such, a dispute of material fact as to the value of the DVDs 16 exists such that disposing of Plaintiff’s claim at the summary judgment stage is 17 inappropriate. Accordingly, the Court DENIES Defendant’s Motion on Plaintiff’s request 18 for “compensatory damages in an amount to be proven” at a trial by jury, as set forth in 19 Point Nos. 1 and 4 of Plaintiff’s Prayer for Relief. Dkt. # 1-2 at 5. 20 21 22 23 24 2 This finding is not disturbed by the language in the Policy indicating that the $1,500.00 limit of liability for each category of specified personal property, including personal records, 25 “includes the cost to research, replace or restore the information from the lost or damaged material.” Dkt. # 17 at 12 (citing Dkt. # 18-2 at 17). This provision merely clarifies that the 26 $1,500.00 limit is inclusive of any costs of restoration or reproduction of property (or associated 27 research). It does not, however, impose a condition barring recovery for personal property which cannot be replaced or restored. 1 V. CONCLUSION 2 Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART 3 Defendant First American’s Motion for Summary Judgment. Dkt. # 17. 4 5 Dated this 21st day of October, 2025. A 6 7 The Honorable Richard A. Jones 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27