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Smith v. USAA Property and Casualty Insurance3/16/1999
1999 Opinion No. 25
Boise, September 1998 Term
Appeal from the District Court of the Second Judicial District of the State of Idaho, Nez Perce County. Hon. Ron Schilling, District Judge.
Appeal from a summary judgment motion granted in favor of Respondent. Affirmed.
This is an appeal from a summary judgment motion granted in favor of USAA Property and Casualty Insurance on an insurance bad faith claim. We affirm the district court's ruling.
I.
BACKGROUND
The appellant, Tammi Smith (Smith), was involved in an automobile accident in Lewiston, Idaho, in which she collided with a vehicle driven by Alice Chappell (Chappell). Smith suffered bodily injury and damage to her automobile as a result of the accident. At the time of the accident, Smith was insured by the respondent, USAA Property and Casualty Insurance (USAA), and Chappell was insured by Mutual of Enumclaw (Mutual). USAA paid Smith's medical expenses, in the amount of $3,371.87, and her property damage, in the amount of $8,015.61. A clause in Smith's contract with USAA gave USAA the right to be subrogated to Smith's right to recover damages from another. In a letter to Smith after the accident, USAA informed Smith of that right and advised Smith not to sign any type of release unless the release was for her interest only. In a subsequent letter to Smith's attorney, USAA stated that they would waive subrogation if her settlement with Mutual reached the limit of Mutual's coverage.
In negotiating with Mutual regarding Smith's property damage, USAA agreed that Smith was 25% negligent, and therefore, Mutual paid only 75% of Smith's property damage. Smith objected to the 75%/25% liability apportionment and began her own negotiations with Mutual with respect to her personal injury claim. Smith and Mutual agreed that Smith's personal injury damages totaled $12,000. However, because USAA had conceded that Smith was 25% negligent, Mutual refused to settle the claim for more than $9,000. Ultimately, Smith accepted the $9,000 settlement. After Smith received the settlement, USAA demanded $2,528.90 from Smith, which constituted 75% of the money USAA paid for Smith's medical bills. Smith then placed $3,371.87 in trust, refusing to pay USAA, and brought an action for a declaratory judgment stating that USAA was not entitled under the insurance policy to recover its subrogated interest from Smith because Smith had not been fully compensated for her damages by Mutual. In her complaint, Smith also alleged breach of contract and insurance bad faith.
Both USAA and Smith moved for summary judgment. In response to USAA's motion for summary judgment, Smith submitted to the court the affidavit of Joe Conway (Conway), an expert in the adjustment of automobile insurance claims. USAA filed a motion to strike Conway's affidavit. The district Judge denied USAA's motion to strike, but stated that it would not consider paragraphs five, six, and seven of Conway's affidavit because they contained inadmissible evidence. The district Judge granted Smith's motion for summary judgment with respect to the declaratory judgment and breach of contract claim, and granted USAA's motion for summary judgment with respect to the bad faith claim.
Smith filed a motion for reconsideration of the district Judge's ruling regarding the admissibility of portions of Conway's affidavit and the bad faith claim, and supported her motion with a second affidavit by Conway. The district Judge denied Smith's motion for reconsideration and also denied Smith's request for attorney's fees under I.C. ยง 41-1839(1).
II.
THE DISTRICT JUDGE PROPERLY GRANTED USAA'S
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