The opinion of the court was delivered by: Susan Oki Mollway United States District Judge
ORDER DENYING MOTION FOR
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
This case involves insurance coverage under a motor vehicle insurance policy. After Plaintiff Walter H. Schroeder hit a pedestrian with his car, he tendered a claim to his insurance carrier, Allstate Insurance Company. Allstate denied coverage and this action followed. Allstate now moves for summary judgment, arguing that Schroeder did not have an Allstate policy at the time of the accident. Because a question of fact exists as to whether Schroeder had an Allstate policy at the time of the accident, the motion to for summary judgment is denied.*fn1
Schroeder had a motor vehicle insurance policy from Allstate that was in effect from April 10, 2011, until October 10, 2011. See Auto Policy Declarations, ECF No. 18-2.
On or about August 30, 2011, Allstate sent Schroeder an offer to renew his policy. See Declaration of Sandra Ann Miller ¶ 5, ECF No. 18-1; Allstate Auto Insurance Renewal Offer, ECF No. 18-3. On or about September 20, 2011, Allstate sent Schroeder a $1,454.16 bill for the policy renewal. See ECF No. 18-4.
There is no dispute that Schroeder failed to timely renew the insurance policy. Instead, he mailed a $1,454.16 check to Allstate in November 2011, well after the policy had expired by its terms on October 10, 2011. See Declaration of Walter R. Schroeder ¶¶ 7, 9 ECF No. 25-1. Allstate cashed the check on or about November 26 or 28, 2011. Id. ¶ 9; Miller Decl. ¶ 8.
Allstate says that, on or about December 7, 2011, it mailed a refund check of $1,454.16 to Schroeder because it had determined that Schroeder no longer had a policy with it. See Miller Decl. ¶ 9; Allstate's record for Schroeder's policy, ECF No. 18-5. Schroeder says that he did not receive this refund check. See Schroeder Decl. ¶ 20. Schroeder asserts that Allstate's cashing of his check caused him to think that Allstate had renewed his insurance policy. Id. ¶ 21.
On January 4, 2012, Schroeder struck a pedestrian while driving. See Schroeder Decl. ¶ 12. When Schroeder contacted Allstate to report the accident, Allstate informed him that his policy had been cancelled. Id. ¶¶ 14-17. Schroeder says he did not know that the policy had allegedly been cancelled until he was told of its cancellation when he reported the accident. Id. ¶ 21.
On or about January 16, 2012, Allstate mailed Schroeder a check for $1,454.16. See ECF No. 25-3. The letter that accompanied this check said that it was a "replacement" for one that had been sent earlier. Id. Schroeder says that this is the only refund check that he ever received. Id. ¶ 20.
III. SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when "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(a) (2010). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The movants must support their position that a material fact is or is not genuinely disputed by either "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials"; or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary ...