Opinion
NO. CIV. S-05-2389 FCD KJM.
October 23, 2007
MEMORANDUM AND ORDER
Plaintiff Donna Grant as Executrix of the Estate of George Grant ("plaintiff" or the "Estate") brings this diversity action against defendant State Farm Life Insurance Company ("defendant"), alleging state law claims of breach of contract, tortious breach of the implied covenant of good faith and fair dealing ("bad faith" claim), intentional and negligent infliction of emotional distress, and fraud and negligent misrepresentation, arising from defendant's delay in paying the proceeds of George Grant's life insurance policy to the Estate.
Plaintiff filed this action on October 11, 2005 in Solano County Superior Court; defendant removed the action to this court on November 28, 2005 on the basis of diversity jurisdiction.
Plaintiff also alleged as its ninth cause of action a claim for "coverage by estoppel," asserting that based on certain representations made by defendant to plaintiff, defendant is precluded from denying coverage herein. Plaintiff did not respond to defendant's motion on this claim, and as such, the court construes plaintiff's silence as a non-opposition to the motion (E.D. Cal. L.R. 78-230(c)). The court therefore grants defendant's motion with respect to this claim. Nevertheless, the court notes that, on the merits, this claim would fail as it is undisputed that defendant did not deny coverage in this case; rather, as set forth below, it has paid the policy's proceeds to the Estate (with the appropriate interest).
Plaintiff seeks, among other relief, a declaration that defendant's delay in paying benefits due under the insurance policy was "deliberate, intentional, and in bad faith" (Compl. at ¶ 35) and attorney fees under Brandt v. Sup. Ct., 37 Cal. 3d 813 (1985) (holding that when an insurer tortiously withholds benefits, attorney fees reasonably incurred to compel payment of the policy benefits are recoverable as an element of the damages resulting from the tortious conduct). Plaintiff pled these requests for relief as separate causes of action, namely its "first cause of action" for "declaratory relief" and its "fourth cause of action" for "Brandt fees." (Compl. at ¶ s 33-35, 46-47.) However, said claims are more properly considered as part of plaintiff's request for relief pursuant to her causes of action above, rather than as substantive claims in and of themselves.
This matter is before the court on defendant's motion for summary judgment, or alternatively, partial summary judgment. Plaintiff opposes the motion, arguing triable issues of fact remain as to each of its claims. For the reasons set forth below, the court GRANTS defendant's motion in its entirety. Plaintiff has failed to establish any cognizable damage to the Estate, the sole plaintiff in this action, and thus, all of the Estate's claims must fail. Alternatively, even were the court to find a triable issue with respect to plaintiff's damages, plaintiff cannot establish a triable issue as to one or more of the other requisite elements of its claims.
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h).
BACKGROUND
Unless otherwise noted, the court finds the following facts undisputed. While plaintiff attempts to dispute some of the facts recited below, it does so citing inadmissible or immaterial evidence, and as such, the court treats the subject fact as undisputed. In other respects, the court finds the parties' dispute with regard to a particular fact not material to resolution of the motion, and thus, while the fact may be included herein to provide context to the issues, the evidence is not considered by the court. (Pl.'s Reply to Def.'s Stmt. of Undisputed Facts [Docket #47], filed Sept. 18, 2007 ["RUF"].)
With its reply, defendant filed evidentiary objections to plaintiff's declaration and the declaration of plaintiff's counsel Tim Pori (Docket #50); the court declines to rule on said objections because even considering the proffered evidence, it fails to raise a triable issue of fact sufficient for plaintiff to withstand summary judgment.
On November 18, 1994, defendant issued a life insurance policy to insure the life of George Grant in the amount of $250,000.00 (the "Policy"). (RUF ¶ 1.) Mr. Grant died as a result of a homicide on May 30, 2004. (RUF ¶ s 3, 17.) At the time, the Policy named Mr. Grant's former business partner, William D. Anderson, as the beneficiary of the Policy. (RUF ¶ 4.) However, Mr. Anderson had died eight years earlier. (RUF ¶ 5.) The Policy provides that if no beneficiary is living at the time of the insured's death, the proceeds shall be paid, pursuant to the terms of the Policy, to the estate of the insured. (RUF ¶ s 4, 6, 7.)
Mr. Grant was killed in the bedroom of the home he shared with his wife, Donna Grant. To date, no one has been arrested or prosecuted for his murder. (Def.'s Resp. to Pl.'s Sep. Stmt. of Undisputed Facts [Docket #49], filed Sept. 24, 2007 ["PUF"], ¶ s 3-4.)
Defendant was notified of George Grant's death on August 5, 2004. (RUF ¶ 15.) On August 19, 2004, defendant learned that Mr. Grant's will nominated Donna Grant, his wife, as the executrix of his estate. (RUF ¶ 20.) That same day, defendant informed Donna Grant's representative, John Hall, that defendant could not pay the proceeds of the Policy without a court order appointing a representative of the estate. (RUF ¶ s 20-21.)
Ms. Grant contends that on this day she made a formal "notice of claim" to defendant to collect the proceeds of the Policy. (PUF ¶ 9.) She maintains that defendant did not formally acknowledge receipt of the claim until September 13, 2004, when defendant's claims agent told Ms. Grant that defendant would make every effort to handle the claim for benefits in a timely manner and that the claim could be processed in as little as three weeks. (PUF ¶ 15.) Defendant disputes these facts. However, as set forth below, the parties' dispute is not material to resolution of the motion.
Anticipating that Ms. Grant eventually would make a claim for benefits on behalf of the estate, defendant began assembling information about Mr. Grant's death. (RUF ¶ s 16, 18-19, 23-24, 26-27, 29-35, 37-38, 41-46, 49-50, 52-96, 98-106, 108-116, 118-124, 126, 134-135.) Among other things, defendant contacted the law enforcement agency investigating Mr. Grant's death and learned that Ms. Grant had not been eliminated as a suspect in Mr. Grant's murder. (RUF ¶ s 23, 31, 46, 58, 71, 107, 135.) Defendant also communicated with one of Mr. Grant's brothers, who told defendant that he believed Ms. Grant had been involved in Mr. Grant's murder, and that he did not want her to serve as executrix of Mr. Grant's estate. (RUF ¶ s 75-76, 81-82.)
On February 9, 2005, the Solano County Superior Court appointed Ms. Grant as the Executrix of the Estate of George Grant. (RUF ¶ 97.) However, plaintiff did not inform defendant of Ms. Grant's appointment until April 8, 2005. (RUF ¶ 116.) Defendant thereafter, on April 14, 2005, sent plaintiff, through plaintiff's attorney at the time, Kendall Hillman, a request that Ms. Grant complete, sign and date an IRS Form W-9 on behalf of the Estate. (RUF ¶ 118.) Defendant received the form from plaintiff, signed by Ms. Grant on May 4, 2005, on May 9, 2005. (RUF ¶ s 124.)
Plaintiff asserts that from September 13, 2004 through May 9, 2005, defendant did not regularly communicate with her or provide her a firm estimate of the amount of time needed to process the claim for benefits. (PUF ¶ s 17-24, 27-33, 35.) Defendant, plaintiff contends, only requested documents of Ms. Grant, including a claimant's statement, a W-9 form and a copy of the court order appointing her executrix of the Estate; plaintiff contends that defendant often made duplicate requests asking plaintiff to complete substantially similar dcouments. (PUF ¶ 13, 17, 27.) Defendant disputes these facts, arguing that it regularly communicated with plaintiff and that it could not process any claim for benefits by plaintiff until a legal representative of the Estate was appointed (which did not occur until February 9, 2005 and which defendant was not informed of until April 8, 2005). For the reasons set forth below, the parties' dispute in this regard nevertheless does not preclude an award of summary judgment to defendant.
To process plaintiff's claim, defendant thereafter took action to confirm the validity of the order appointing Ms. Grant as executrix of the Estate. (RUF ¶ s 126, 134-135, 139-140.) On June 9, 2005, defendant wrote to plaintiff's attorney, Tim Pori, informing him that defendant had received all necessary paperwork from plaintiff for the claim but that defendant could not pay benefits to Ms. Grant, either as an individual or as executrix of the Estate, while she remained a suspect in the ongoing homicide investigation of Mr. Grant's death; defendant indicated that once the police and prosecutor either charge Ms. Grant or exonerate her from being a suspect, defendant would be able to finalize the claim. (PUF ¶ 32.) In response, Mr. Pori sent defendant a letter on June 20, 2005, summarizing his investigation into the murder of Mr. Grant, which included reports of interviews of various witnesses, conducted by a private investigator Mr. Pori retained. (PUF ¶ 34.) Ms. Grant asserted these interviews confirmed that she and George Grant had a loving relationship, and that she had no motive to kill her husband. (Id.) Defendant responded to Mr. Pori's letter on June 27, 2005, informing him that defendant was in the process of reviewing the documents Mr. Pori submitted with his letter. (RUF ¶ 131.)
On June 29, 2005, defendant was informed by the Solano County Sheriff's Office that Ms. Grant had not been eliminated as a suspect in the homicide of Mr. Grant. (RUF ¶ 135.) Nevertheless, defendant continued to review plaintiff's claim; on August 12, 2005, Bill Dolk, of State Farm's Life General Claims Department, recommended that defendant pay the proceeds to Ms. Grant as Executrix of the Estate. (RUF ¶ s 136-137.) On August 17, 2005, defendant telephoned the Solano County Sheriff's Department and Mr. Grant's brother to inform them that defendant was getting ready to pay the proceeds of the Policy to the Estate. (RUF ¶ s 139-140.) Defendant informed Mr. Pori of the same on August 17, 2005. (RUF ¶ 141.)
On August 18, 2005, defendant paid the proceeds of the Policy, plus applicable interest, to plaintiff in the amount of $260,825.72. (RUF ¶ s 142, 143.)
The check was made payable to "Donna Grant, as Executrix of the Estate of George Grant." (RUF ¶ 142.)
Ms. Grant contends that in reliance on representations made by defendant in September 2004 regarding the prompt payment of the Policy proceeds (see n. 7 supra), she decided to continue to run the family business and to sell the family home; she asserts that these decisions ultimately resulted in financial losses to her and/or the Grant Family Trust as a result of defendant's delay in payment of the proceeds. (PUF ¶ s 16, 26, 39.) For example, Ms. Grant declares that she decided to sell the home where Mr. Grant was murdered and move back to a previous home she had lived in with Mr. Grant; while that previous home was more expensive than she could afford based on the income from the Grant Family Trust, she believed with the proceeds from the Policy she could afford to live in that home with her daughter. (Pl.'s Decl., filed Sept. 7, 2007, ¶ 34.) Ms. Grant contends that defendant's delay in paying the Policy proceeds caused her to lose $50,000.00 in conjunction with the home sell and purchase. (Id.) Ms. Grant also maintains that she believed the prompt receipt of the Policy proceeds would enable her to continue to operate her husband's glass business. (Id. at ¶ 35.)
STANDARD
The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
ANALYSIS
1. Standing
Before the court addresses plaintiff's claims for relief, it must preliminarily resolve the parties' dispute over whether Ms. Grant has standing in her individual capacity to bring the instant claims against defendant. Resolution of this question is critical to the motion, as the issue of damages to the Estate versus Ms. Grant, individually, is ultimately determinative of the motion.
Only parties in privity of contract have standing to sue under a contract. Gruenberg v. Aetna Insur. Co., 9 Cal. 3d 566, 576-78 (1973). Accordingly, only insureds and their beneficiaries have standing to sue for damages resulting from an insurer's withholding of policy benefits from an insured. Austero v. Nat'l Casualty Co., 62 Cal. App. 3d 511, 515-16 (1978) (citing Gruenberg, 9 Cal. 3d at 576-78); Seretti v. Superior Nat'l Insur. Co., 71 Cal. App. 4th 920, 929 (1999) (holding that non-parties to the contract lack standing to enforce the implied covenant of good faith and fair dealing or to recover extra-contractual damages for its breach).
Here, defendant issued the Policy to Mr. Grant, and Mr. Grant named William Anderson, his business partner, as the beneficiary of his coverage. (RUF ¶ s 1, 4.) Because Mr. Anderson predeceased Mr. Grant, the terms of the Policy directed that the proceeds be paid to Mr. Grant's estate. (RUF ¶ s 1, 4.) Thus, the only party with standing to sue for damages under the Policy is Mr. Grant's estate. Id.
Plaintiff argues, nonetheless, that as a beneficiary of Mr. Grant's estate, she has standing to sue in her individual capacity. Plaintiff contends: "By virtue of the Last Will and Testament of George Grant, the only named beneficiaries who would inherit the proceeds of the [Policy] [are] Donna Grant and her daughter, Nicole Grant." (Opp'n, filed Sept. 9, 2007, 1:27-2:1.) However, the documentary evidence submitted by plaintiff in opposition to the motion proves otherwise. Specifically, Mr. Grant's will directs that his son receive a specific automobile and that Ms. Grant receive any "remaining tangible personal property." (Grant Decl., filed Sept. 9, 2007, Ex. 4 [§ 2.1].) The proceeds of the subject Policy are not such "tangible property."See e.g. Fairbanks v. Sup. Ct., 154 Cal. App. 4th 435, 442-43 (2007) (explaining that insurance is not a tangible item). Instead, the Policy proceeds pass via the residuary provision of Mr. Grant's will which directs that the proceeds of the Policy be added to the principal of the Grant Revocable Family Trust and distributed "in accordance with the provisions of that declaration of trust." (Grant Decl., Ex. 4 [§ 3.1].) Thus, it is only the Grant Revocable Family Trust that could legitimately claim "beneficiary" status under the Policy. The Trust, however, is not a named party to this action.
Moreover, while Ms. Grant claims she is a beneficiary of the Grant Revocable Family Trust, she has not offered any competent evidence to support that claim. Indeed, plaintiff has not produced the trust documents; instead, she simply asserts in her declaration that she and her daughter "were the sole named beneficiaries of all of the residual assets of the estate of George Grant." (Grant Decl., ¶ 26.) Plaintiff's unsubstantiated assertion is insufficient to raise a triable issue of fact as to her individual standing to sue under the Policy.
Even if plaintiff had proffered sufficient evidence of her status as a beneficiary of the Trust, that status is too remote to grant her standing to sue for the Policy proceeds. As set forth above, only parties to the insurance contract or named beneficiaries have standing to enforce the contract or to recover extra-contractual damages for wrongful withholding of benefits.See e.g. Hatchwell v. Blue Shield of Cal., 198 Cal. App. 3d 1027, 1034 (1998). Courts have thus recognized that "incidental beneficiaries" do not have standing to sue under an insurance contract. See e.g. Jones v. Aetna Cas. Surety Co., 26 Cal. App. 4th 1717, 1725 (1994) (fact that lessee "would have received some benefit in the event Aetna indemnified the lessor . . . only makes him an incidental beneficiary under the policy," lacking standing to sue); Gantman v. United Pacific Insur. Co., 232 Cal. App. 3d 1560, 1568 (1991) ("although [homeowners] stand to gain when Association gains, the benefits [they] seek belong to the Association by the insurance contracts sued upon . . . [the homeowners] are simply not claimants whose benefits were wrongfully withheld.")
In a final attempt to establish standing in her individual capacity, Ms. Grant argues that California courts have recognized a spouse's standing to sue under an insurance contract, if the insurance premiums were paid with community property assets. (Opp'n at 5:6-9.) The lone case cited by Ms. Grant, however, actually establishes the contrary. In Seretti, the California court of appeal held that an insured's spouse is at most "an incidental or remote beneficiary and, as such, can state no cause of action against [the insurer] for breach of a duty, express or implied, arising from the contractual relationship." Seretti, 71 Cal. App. 4th at 929-30 (emphasis added). Moreover, even if case law supported Ms. Grant's argument, she offers no evidence that any of the premiums for the subject Policy were paid with community property assets. Thus, the factual premise for Ms. Grant's assertion is wholly unsupported.
Finally, while Ms. Grant could have certain rights to the Policy proceeds if Mr. Grant used community property assets to pay the premiums for the Policy, those rights would not include a claim against defendant. Rather, Ms. Grant would simply be a creditor of Mr. Grant's estate and could pursue a claim against Mr. Grant's estate; this fact does not, however, provide her standing to bring a claim against defendant. See Cal. Fam. Code § 1100(a); see Burch v. George, 7 Cal. 4th 246, 264, 285 (1994).
Thus, for all these reasons, only the Estate, through its Executrix Ms. Grant, has standing to pursue the instant claims against defendant.
2. Damages to the Estate
Defendant moves for summary judgment as to each of plaintiff's claims arguing the Estate, the sole plaintiff in this action as set forth above, has not suffered any damage, and thus, each of its claims must fail. Defendant is correct that absent evidence of damage to plaintiff as a result of defendant's delay in payment of the Policy proceeds, plaintiff does not have a cognizable claim against defendant, and defendant is entitled to summary judgment. The court thus considers the issue of damages in the first instance as it obviates the need for a full analysis of the other elements of plaintiff's claims.
It should be noted at the outset that this case involves a delay in payment of policy proceeds (for at most, approximately 41/2 months), not a denial of payment. At times, plaintiff cites cases involving denial of coverage or payments; that situation is clearly not present here. It is undisputed that defendant has paid the Policy proceeds, with applicable interest, to plaintiff in the amount of $260,825.72. (RUF ¶ s 142, 143.) Thus, for plaintiff to establish damages, at all, the Estate must tie its purported damages to the delay in payment by defendant.
Defendant may only properly be charged with any delay from the time it received notice of Ms. Grant's appointment as Executrix of the Estate, April 8, 2005, to the date it paid the policy proceeds, August 18, 2005. Prior to April 8, 2005, defendant had no obligation to process a claim for the Policy proceeds pursuant to the express terms of the Policy. (RUF ¶ s 4, 6, 7, 20-21.)
In support of its motion, defendant proffers evidence of its payment of the Policy proceeds to the Estate and evidence that the value of the Estate did not change between the date of Mr. Grant's death and the date on which defendant paid the proceeds, with interest. (RUF ¶ s 142, 143; Pohls Decl., Ex. 7 [Grant Dep. 106:5-18 and Ex. 19].) Plaintiff does not dispute these facts. (RUF ¶ 10, 14.) Instead, plaintiff asserts in its opposition that:
Plaintiff "denied" this latter fact in its response to defendant's statement of undisputed facts (RUF ¶ 14) but it cited no contrary evidence and, indeed, also conceded that the Estate was affected if, at all, only positively in that the Policy proceeds ultimately "increased" the value of the Estate. Plaintiff's response does not raise a triable issue of fact that the Estate was harmed in any way by the delay in payment of the proceeds.
[T]he Grant Family Estate [sic] suffered a loss of earnings, various special damages, the costs of attorney fees and Ms. Grant herself suffered severe emotional upset and distress. [citing PUF ¶ s 16, 26, 37, 39.]
Since there is no entity known as the "Grant Family Estate," the court assumes plaintiff is referring to the Grant Revocable Family Trust mentioned in Mr. Grant's will.
(Opp'n at 15:18-21.) (Emphasis added.) However, as set forth above, only the Estate may assert the instant claims against defendant; any damage to the Grant Revocable Family Trust, a non-party to the action, or Ms. Grant individually, or even ostensibly as the legal representative of the Trust, is irrelevant.
Plaintiff does not offer any evidence to rebut defendant's showing that (1) the Estate was not harmed in any way as the Policy proceeds were paid to the Estate with the appropriate interest and (2) any delay in payment of the Policy proceeds, even assuming such delay was "unreasonable," did not cause any cognizable harm to the value of the Estate. Therefore, defendant is entitled to judgment as a matter of law as to each of plaintiff's claims.
To prevail on a claim for breach of the implied covenant of good faith and fair dealing, plaintiff must prove that defendant withheld a benefit that was payable under the policy, unreasonably and without proper cause. See e.g. Gruenberg, 9 Cal. 3d at 575.
3. Plaintiff's Claims for Relief
While not necessary to resolution of the motion in light of the above findings, the court nonetheless briefly discusses below its findings regarding other elements of plaintiff's claims. There are further, alternative reasons to grant defendant's motion.
Regarding plaintiff's breach of contract and bad faith claims, plaintiff argues defendant unreasonably delayed paying the Policy proceeds for over a year. Plaintiff maintains said monies were due upon "proof of the Insured's death" which defendant received in August 2004. (Opp'n at 6:17.) Plaintiff's argument wholly ignores the other terms of the Policy, providing that the Estate is the applicable beneficiary and requiring appointment of a representative for the Estate in order to make a claim to the Policy proceeds. (RUF ¶ s 4, 6, 7, 20-21.) Any obligation of defendant to "process" plaintiff's claim for benefits did not arise, as set forth above, until April 8, 2005, when defendant received copies of the letters of administration identifying Ms. Grant as the Executrix of the Estate. See e.g. 10 C.C.R. § 2695.5(e). Thus, any delay at issue is from April 8 to August 18, 2005, the date defendant paid the Policy proceeds plus applicable interest.
As to that specific time frame, plaintiff fails to proffer any evidence from which a jury could find unreasonable withholding of benefits. To the contrary, defendant submits evidence that during this time, it investigated, in light of Ms. Grant's suspected role in Mr. Grant's death, the validity of the order appointing her Executrix. (RUF ¶ s 126, 134-135, 139140.) This investigation included making contact with plaintiff's counsel, the Solano County Sheriff's Department and defendant's own legal department; defendant consulted its legal department specifically for an opinion as to the effect, if any, that Ms. Grant's possible involvement in Mr. Grant's homicide would have on her authority to act as the legal representative of his estate. (RUF ¶ s 131, 135; PUF ¶ s 32, 34.) These contacts occurred in May and June 2005. Defendant's legal department responded to the last inquiry, made on June 28, 2005, on August 8, 2005. On August 12, 2005, Bill Dolk of defendant's General Claims Department recommended payment of the proceeds to Ms. Grant as Executrix of the Estate; the monies were thereafter paid on August 18, 2005. (RUF ¶ s 136-137, 142-143.)
Both parties spend a large portion of their briefing discussing conduct by Ms. Grant and defendant prior to April 8, 2005. However, this conduct is irrelevant to the instant motion as the period of any delay with which defendant may be charged occurred between April 8 and August 18, 2005.
Defendant preliminarily began this investigation in late-2004.
The only evidence plaintiff submits is its counsel's letter of June 20, 2005 to defendant, informing defendant of plaintiff's counsel's investigation into Mr. Grant's murder (which plaintiff's counsel asserted established that Ms. Grant was not involved). (PUF ¶ 34.) Defendant, however, promptly responded to this letter on June 27, 2005. (RUF ¶ 131.) Defendant continued investigating the situation in July and early-August 2005, and ultimately paid the proceeds less than two months after plaintiff's counsel's June 20 letter.
Under these facts, no reasonable juror could find that defendant withheld benefits payable under the Policy "unreasonably and without proper cause." Gruenberg, 9 Cal. 3d at 575; see also Fraley v. Allstate Insur. Co., 81 Cal. App. 4th 1282 (2000) (summary judgment proper when payment delayed to investigate genuine issue regarding coverage); see Lunsford v. American Guarantee Liability Insur. Co., 18 F.3d 653, 656 (9th Cir. 1994) ("[a] court can conclude as a matter of law that an insurer's denial of a claim is not unreasonable, so long as there existed a genuine issue as to the insurer's liability").
Because plaintiff cannot sustain its bad faith claim, it likewise cannot maintain a claim for attorney fees and costs pursuant to Brandt. 37 Cal. 3d at 813 (a viable bad faith claim is a prerequisite to seeking fees and costs based thereupon).
As to plaintiff's intentional and negligent infliction of emotional distress claims, these claims fail since the Estate, as a legal entity, cannot suffer emotional distress. See e.g. Diamond View Limited v. Herz, 180 Cal. App. 3d 612, 618-19 (1986) (emotional states are exhibited by natural persons, not legal entities). Because the Estate cannot establish this requisite element of its claims, that it suffered "severe emotional distress," defendant's motion on these claims is properly granted on this alternative basis.
Michaelian v. State Compenstation Insur. Fund, 50 Cal. App. 4th 1093, 1113-14 (1996) (setting forth elements of claim for intentional infliction of emotional distress); Bogard v. Employers Casualty Co., 164 Cal. App. 3d 602, 618 (1985) (setting forth elements of claim for negligent infliction of emotional distress).
Finally, as to plaintiff's fraud and negligent misrepresentation claims, both claims require proof that the Estate relied on certain, specific representations by defendant regarding the payment of the Policy proceeds. Fed.R.Civ.P. 9(b). However, plaintiff proffers no evidence of the Estate's reliance on any representations by defendant. At most, plaintiff offers evidence of Ms. Grant's reliance on a purported representation by defendant on September 13, 2004, indicating, Ms. Grant contends, that defendant would promptly pay the Policy proceeds within as little as three weeks. (See n. 7 supra.) Even assuming defendant made this representation (which defendant disputes and offers evidence to the contrary [see Reply, filed Sept. 24, 2007, at 12]), plaintiff only proffers evidence that Ms. Grant relied on the representation not the Estate. Indeed, at that time, no representative of the Estate had been appointed; Ms. Grant was not authorized to act on behalf of the Estate until February 9, 2005. Plaintiff fails to identify any misrepresentation by defendant after that date, upon which the Estate relied to its detriment, and thus, defendant's motion as to these claims is also properly granted for this further reason.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is GRANTED in its entirety. The Clerk of the Court is directed to close this file.
IT IS SO ORDERED.