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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Tyler Jacobson, et al.,

Plaintiffs,

v. 

American Family Insurance Company, et 

al.,

Defendants.

No. CV-17-04373-PHX-MTL

ORDER 

I. Background

Before the Court are Defendant American Family Insurance Company’s Motion 

for Summary Judgment (Doc. 48) and Plaintiffs Cathy, William and Tyler Jacobson’s 

Cross-Motion for Summary Judgment (Doc. 50). The Court adjudicated some of the 

issues in those Motions in its January 31, 2020 Order. (Doc. 65.) The Court relies on the 

factual recitation contained in that Order. 

For the reasons expressed herein, the Court grants American Family summary 

judgment on the negligence claims and denies the cross-motions for summary judgment 

on the breach of contract claims of Cathy, William and Tyler Jacobson; the prior grant of 

summary judgment for Cathy Jacobson is vacated. 

II. Legal Analysis

A. Legal Standard on a Motion for Summary Judgment 

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary 
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judgment. The Court may grant summary judgment when the movant shows that (1) 

there are no genuine issues of material fact; and (2) when the evidence is viewed in the 

light most favorable to the non-moving party, the movant is entitled to a favorable 

judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Adickes v. S. H. Kress & Co., 

398 U.S. 144, 157 (1970). Material facts are those which might affect the outcome of the 

suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact does 

not arise solely from allegations in pleadings; the non-moving party also has to produce 

affirmative evidence to rebut the moving party’s motion. Id. at 257. When deciding a 

defendant’s motion for summary judgment, the “mere existence of a scintilla of evidence 

in support of the plaintiff’s position will be insufficient; there must be evidence on which 

the jury could reasonably find for the plaintiff” in order to deny a defendant’s motion. Id. 

at 252.

B. Negligence

Plaintiffs initially certified that they needed to provide an expert opinion affidavit 

to establish the insurance agent’s liability. (Doc. 22-1 at 32.) The Plaintiffs argue, 

however, that the affidavit was no longer necessary after dropping the insurance agent 

and agency from the lawsuit and pursuing the negligence claim against American Family 

under a vicarious liability theory. This Court rejected that argument, finding that the 

preliminary expert report requirement of A.R.S. § 12-2602 applies. (Doc. 71.)

Section 12-2602(F) states that the Court shall dismiss a case, without prejudice,

when a plaintiff does not produce an expert opinion affidavit after a plaintiff has certified 

that one is required. Additionally, § 12-2602(C) allows an application for extension of 

time for compliance with the requirement under certain circumstances. Neither party has 

timely availed itself to the rights and remedies provided under the statute. Additionally,

the Court cannot ignore that the statute seems to contemplate that this affidavit 

requirement will be addressed at an early stage of the case. See A.R.S. § 12-2602(B) 

(“the claimant shall serve [the] affidavit with initial disclosures. . . .”). 

More than two years have passed since the initial filing of this case in state court. 
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(Doc. 1-1 at 13.) Thus, the lack of an expert opinion affidavit at this point of the case is 

no longer a matter of gatekeeping. Rather, it shows a fundamental obstacle to proceeding 

with a negligence trial: the lack of evidence to establish the insurance agent, Ms. 

Melody’s, duty vis-à-vis the Jacobsons, which is a lack of proof as to an essential element 

of the claim. Without the expert opinion, no reasonable juror could find in favor of the 

Jacobsons on the negligence claim. Thus, the Court interprets American Family’s 

argument concerning the lack of an expert opinion affidavit (Doc. 55 at 9-12) as a motion 

for summary judgment on Plaintiffs’ negligence claim, based on Plaintiffs’ failure to 

disclose a standard of care expert, and grants the Motion. 

C. Breach of Contract

In its January 31, 2020 Order (Doc. 65), this Court granted Cathy Jacobson 

summary judgment with respect to her breach of contract claim, altering the policy for 

her purposes to meet what the Court found to be Ms. Jacobson’s reasonable expectations. 

Defendant argued in supplemental briefing (Doc. 72) and at oral argument (Doc. 71) that 

“[w]hether or not Cathy’s expectation of coverage was reasonable under the 

circumstances relied on by the Court is a question for the finder of fact.” (Doc. 72 at 5.) 

Plaintiffs countered by arguing that, under these circumstances, the scenarios in which a 

court will apply the reasonable expectations doctrine, as outlined in Gordinier v. Aetna 

Cas. & Sur. Co., 742 P.2d 277, 283-84 (Ariz. 1987), are applicable. (Doc. 74 at 8-11.) 

Defendant points to contravening evidence in the record, including the inferences to be 

drawn from Ms. Jacobson’s asking for a full coverage quote for Tyler Jacobson’s 

motorcycle. (Doc. 75 at 4.)

After reviewing the parties’ supplemental briefing, the Court is now persuaded 

that while the actual terms of the policy are undisputed, a jury should decide whether the 

policy should be reformed to be consistent with Cathy Jacobson’s alleged reasonable 

expectations.1 See Taylor v. State Farm Mut. Auto. Ins. Co., 854 P.2d 1134, 1145 (Ariz. 

1 This decision, which rests on the current record and the legal standard for a motion for 

summary judgment, is without prejudice to Plaintiffs’ moving for a directed verdict at the 

close of evidence at trial. 
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1993) (“because the extrinsic evidence established controversy over what occurred and 

what inferences to draw from the events, the matter was properly submitted to the jury.”). 

Any derivative claim for benefits for William and Tyler Jacobson would have to stem 

from a revision of the policy consistent with Ms. Jacobson’s alleged reasonable 

expectations.

All three Jacobson’s breach of contract claims shall be tried to a jury. 

III. Conclusion

Accordingly, 

IT IS ORDERED granting summary judgment to Defendant on the issue of 

negligence, as raised in Doc. 55.

IT IS FURTHER ORDERED otherwise denying both Motions for Summary 

Judgment. (Docs. 48 and 50.) All three Plaintiffs’ breach of contract claims shall be 

tried to a jury.

2 This Court’s January 31, 2020 Order (Doc. 65) is amended to the extent 

that it is inconsistent with this Order. 

IT IS FURTHER ORDERED setting an in-person trial-setting conference for 

Tuesday, March 10, 2020, at 2:00 P.M., in Courtroom 504, Sandra Day O’Connor U.S. 

Federal Courthouse, 401 W. Washington St., Phoenix, Arizona 85003-2151. The parties 

shall be prepared to discuss a proposed length of trial and potential trial dates. 

Dated this 26th day of February, 2020.

2 As stated in the January 31, 2020 Order, the issue of bad faith shall also be tried to the 

jury. The issue of punitive damages (see Doc. 10 at 11, ¶ 3) shall also be tried to the jury.