NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT 

PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

AVANNA ANN RIBITZKI, a single woman, 

Plaintiff/Appellant,

v.

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, 

Defendant/Appellee.

No. 1 CA-CV 15-0509

Appeal from the Superior Court in Maricopa County

No. CV2013-005242

The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

Avanna Ann Ribitzki, Scottsdale

Plaintiff/Appellant

Tyson & Mendes LLP, Phoenix

By Lynn M. Allen, JP Harrington Bisceglia

Counsel for Defendant/Appellee
RIBITZKI v. AMERICAN FAMILY

Decision of the Court

2

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.

H O W E, Judge:

¶1 Avanna Ann Ribitzki appeals from the trial court’s judgment 

dismissing her claims against American Family Mutual Insurance 

Company and denial of a motion for new trial. For the following reasons, 

we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 American Family insured Ribitzki under a homeowner’s 

insurance policy that covered loss for personal property. In the event of 

loss, the policy required that Ribitzki provide requested records, submit to 

an examination under oath, and cooperate with all acts reasonably required 

by the policy.

¶3 In November 2010, Ribitzki reported a claim to American 

Family for loss of personal property due to a theft that occurred at her 

temporary residence. Over the next several months, American Family 

requested various documents. Ribitzki provided some documentation, but 

delayed providing all the requested documents. American Family 

reminded Ribitzki that the policy conditions required cooperation and 

advised it could not process her claim without the requested documents. 

Ribitzki provided additional documentation.

¶4 While investigating the insured property’s deed, American 

Family noticed several discrepancies. American Family sent Ribitzki a 

reservation of rights letter advising that “[a]n initial review of your loss has 

identified facts which may affect the coverages provided under [the policy].

We are advising you at this time that there is a question whether the 

coverage under the policy mentioned above will apply to this loss.” After 

further review, American Family sent Ribitzki a letter explaining that 

“many discrepancies” existed in her claim and that a “thorough 

investigation is being conducted.”

¶5 American Family conducted an examination under oath in

June 2011. Ribitzki stated that upon abuse of questioning tactics, and the 
RIBITZKI v. AMERICAN FAMILY

Decision of the Court

3

eliciting of no new information, she ended the examination and walked out.

The record and contemporaneous correspondence of American Family, 

however, indicates that Ribitzki chose not to proceed with the examination 

after she was informed that her friend, the person who reported the theft, 

could not attend. Ribitzki stated that she would reschedule the examination 

under oath.

¶6 For several months, American Family sent letters requesting 

that Ribitzki reschedule the examination under oath. Even after American 

Family sent notice to Ribitzki that her claim would be placed on inactive 

status for failing to comply with the policy conditions, Ribitzki failed to 

reschedule the examination under oath. 

¶7 In December 2013, Ribitzki sued American Family alleging 

breach of contract and a violation of the covenant of good faith and fair 

dealing, and sought punitive damages. American Family moved for 

summary judgment pursuant to Arizona Rule of Civil Procedure 56, to 

which Ribitzki never responded. The trial court granted American Family’s 

motion and entered judgment dismissing all claims against American 

Family. Ribitzki moved for a new trial, which the trial court denied. The 

trial court noted that Ribitzki’s failure to respond was one basis to grant 

summary judgment but that it had also reviewed the entire record and 

found no genuine issue of material fact. Ribitzki timely appealed. 

DISCUSSION

¶8 Ribitzki argues that the trial court erred by granting American 

Family’s motion for summary judgment. Ribitzki does not, however, 

challenge the denial of her motion for new trial. We review de novo 

whether the trial court properly entered summary judgment. Awsienko v. 

Cohen, 227 Ariz. 256, 258 ¶ 7, 257 P.3d 175, 177 (App. 2011). We view the 

evidence in the light most favorable to Ribitzki, against whom the trial court 

entered judgment. Id.

¶9 Summary judgment is proper when “there is no genuine 

dispute as to any material fact and the moving party is entitled to judgment 

as a matter of law.” Ariz. R. Civ. P. 56(a). The nonmoving party “must set 

forth specific facts showing that there is a genuine issue for trial.” Ariz. R. 

Civ. P. 56(e). A nonmoving party who chooses to not respond “does so at 

his peril because uncontroverted evidence favorable to the movant, and 

from which only one inference can be drawn, will be presumed to be true.”

Choisser v. State ex rel. Herman, 12 Ariz. App. 259, 261, 469 P.2d 493, 495 

(1970).
RIBITZKI v. AMERICAN FAMILY

Decision of the Court

4

¶10 Ribitzki argues that the trial court erred by granting summary 

judgment as a discovery sanction and for lack of a response. Contrary to 

Ribitzki’s argument, the trial court did not grant summary judgment as a 

discovery sanction. Moreover, although the trial court cited Ribitzki’s lack 

of response as one basis for granting summary judgment, the trial court 

stated that it had reviewed the record and found no genuine issue of 

material fact. Appellate courts “determine whether the judgment, not the 

reasoning, of the trial court was correct.” Picaso v. Tucson Unified Sch. Dist., 

217 Ariz. 178, 181 ¶ 9, 171 P.3d 1219, 1222 (2007).

¶11 Breach of a cooperation clause is a defense to a claim for 

breach of contract “if the insurer has been substantially prejudiced 

thereby.” Clark Equip. Co. v. Ariz. Proper. & Cas. Ins. Guar. Fund, 189 Ariz. 

433, 442, 943 P.2d 793, 802 (App. 1997). Although Ribitzki argues that the 

evidence on the cooperation issue presented a factual dispute, because she 

failed to respond to the Rule 56 motion, no factual dispute was before the 

trial court. Because the policy requires submission to an examination under

oath and the undisputed record before the trial court shows Ribitzki’s 

failure to comply therewith thwarted American Family’s ability to assess 

the claim, the trial court properly granted summary judgment to American 

Family based on Ribitzki’s breach of the cooperation clause. See Warrilow v. 

Super. Ct., 142 Ariz. 250, 255, 689 P.2d 193, 198 (App. 1984) (holding that the 

insured’s refusal to answer questions during the examination under oath 

constituted a breach of contract and barred recovery on the claim).

¶12 As for Ribitzki’s claim for violation of the covenant of good 

faith and fair dealing, an insurer that “intentionally denies, fails to process 

or pay a claim without a reasonable basis for such action” breaches the 

implied duty of good faith it owes to its insured. Regal Homes, Inc. v. CNA 

Ins., 217 Ariz. 159, 170 ¶ 48, 171 P.3d 610, 621 (App. 2007). The insurer may 

challenge claims that are “fairly debatable” without acting in bad faith. Id.

¶13 The record before us is not clear whether American Family 

was required to pay on Ribitzki’s claim, and no objective evidence shows 

any unreasonable delay in processing Ribitzki’s claim. American Family 

presented evidence—which, again, Ribitzki failed to refute—that it made 

reasonable efforts to process the claim, placed the claim on inactive status

due to Ribitzki’s failure to comply, and advised it would reopen the claim 

if Ribitzki complied. The record is devoid of any evidence that American 

Family ever formally denied Ribitzki’s claims before Ribitzki filed suit. 

Ribitzki cannot fail to comply with policy conditions, then complain that 

American Family breached its contractual duty of good faith and fair 

dealing and acted in bad faith when American Family could not adequately 
RIBITZKI v. AMERICAN FAMILY

Decision of the Court

5

assess its liability in the absence of Ribitzki’s cooperation. Ribitzki identifies 

no evidence suggesting that American Family acted unreasonably under 

these circumstances. In the absence of any evidence of bad faith, the trial

court properly granted summary judgment on the bad faith claim. Because 

Rbitiski’s bad faith claim presents no genuine issue of material fact, we need 

not consider American Family’s statute of limitations argument.

¶14 Relying on Robinson v. Higuera, Ribitzki next argues that she 

was denied due process because an evidentiary hearing was required. See 

157 Ariz. 622, 760 P.2d 622 (App. 1988). Robinson, however, discussed 

default judgment, not summary judgment. Id. at 625, 760 P.2d at 625. Here, 

no default judgment occurred. Instead, the trial court reviewed the entire 

record and granted summary judgment on the merits.

¶15 Finally, because Ribitzki’s claims for breach of contract and 

bad faith fail, the trial court properly dismissed her request for punitive 

damages. See Saucedo ex rel. Sinaloa v. Salvation Army, 200 Ariz. 179, 185–86 

¶ 21, 24 P.3d 1274, 1280–81 (App. 2001) (holding that the claimant could not 

recover punitive damages in the absence of recovery of actual damages).

¶16 American Family requests attorneys’ fees incurred on appeal 

pursuant to A.R.S. § 12–341.01. We grant its request and will award 

reasonable fees upon timely compliance with Arizona Rule of Civil 

Appellate Procedure 21.

CONCLUSION

¶17 For the foregoing reasons, we affirm.