Opinion
3:22-cv-01723-YY
02-23-2024
JOHN HARPER, Plaintiff, v. AMUR EQUIPMENT FINANCE, INC.; WATSON & CHELAN MANUFACTURING, INC.; ARTISAN AND TRUCKERS CASUALTY COMPANY, INC. and/or PROGRESSIVE INSURANCE CORPORATION, INC., Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiff John Harper, who is proceeding pro se, filed this suit after a trailer he was pulling with his semi-tractor caught fire in Wyoming during a delivery of heavy equipment that plaintiff was transporting from Tacoma, Washington, to Hudson, Connecticut, in February of 2022. Compl. ¶ 7, ECF 1. Plaintiff brought suit against Watson & Chelin Manufacturing, Inc., the Texas company that manufactured the axle on the trailer that caught fire, Amur Equipment Finance, Inc., the company that provided financing for plaintiff's purchase of the trailer, and Artisan and Truckers Casualty Company, the insurance company that covered the trailer. Id. ¶¶ 3, 13, 15, 17. Defendant Watson & Chelin was previously dismissed from this suit without prejudice for lack of personal jurisdiction. See Order (April 3, 2023), ECF 49.
Plaintiff's complaint asserts a claim for unjust enrichment against Artisan and Amur, Compl. ¶¶ 8-11, ECF 1, a “dispute resolution process” claim under state and federal law along with two claims for “racketeering” under federal and Oregon law against Artisan, id. ¶¶ 17-30, and a breach of fiduciary duty claim sounding in both Oregon state law and federal law and a claim for “refund” under O.R.S. 646A.781(2)(b) against Amur. Id. ¶¶ 12-14. Id. Plaintiff also seeks punitive damages against both defendants. Id. ¶ 32C.
Currently pending are Artisan's and Amur's motions for summary judgment. ECF 59, 62. For the reasons explained below, both motions should be granted, judgment should be entered for Artisan and Amur, and this case should be closed.
I. Background
The following facts are undisputed, unless specifically noted otherwise. In December of 2020, plaintiff purchased the trailer in question for $59,487.92. Plaintiff provided $5,015 for a down payment, and entered into an Equipment Finance Agreement with Amur to finance the remaining balance of $54,487.92. Under the terms of the Equipment Finance Agreement, plaintiff agreed to pay Amur $1,067.69 for 72 months, for a total cost of $76,873.68. Plaintiff made monthly payments between December 2020 and February of 2022.
Resp. Amur Mot. Summ. J. (“Resp. Amur”), Ex. R at 1, ECF 64.
Id.; see also Van Bibber Decl., Ex. A at 1, ECF 63.
See Van Bibber Decl., Ex. A at 1, ECF 63.
Id., Ex. D at 1, ECF 63.
On February 4, 2022, a fire damaged the trailer and its cargo while plaintiff was hauling a load through Wyoming. Plaintiff reported the trailer fire incident to Artisan on February 5, 2022, to initiate an insurance claim. A representative from Artisan spoke to plaintiff on February 8, 2022, to discuss the incident, and to secure plaintiff's permission to inspect the trailer and to share information with an independent adjuster. On February 14, 2022, plaintiff provided pictures of the trailer to Artisan; the next day, an Artisan representative contacted plaintiff after the pictures revealed the “trailer [had] been stripped.” Plaintiff stated he removed items from the trailer to support a warranty claim he planned to make regarding the trailer. The items taken from the trailer included “braker components,” lights, ramps, and tool boxes. The Artisan representative informed plaintiff that the “items removed will affect the value of the trailer,” which plaintiff acknowledged.
Ridenour Decl., Ex. C at 1, ECF 60-3.
Id., Ex. B at 1, ECF 60-2.
Id. at 8, ECF 60-2; see also Artisan Mot. Summ. J. 7, ECF 59.
Ridenour Decl., Ex. B at 16, ECF 60-2.
Id.
Id.
Id.
Artisan contacted Amur on February 17, 2022, to request the payoff amount for the outstanding portion of the financing for the trailer. A few days later, Amur informed Artisan that the payoff amount was $57,864.47 On March 2, 2022, Artisan received a valuation report for the trailer that declared the trailer a total loss and that the trailer's actual cash value was $57,894. Artisan requested an adjusted valuation to account for the items plaintiff removed from the trailer; the new report stated the trailer's adjusted actual cash value was $54,574.
Ridenour Decl., Ex. B at 18, ECF 60-2. In addition to the damage to the trailer, part of plaintiff's insurance claim was for damage to the cargo he was transporting at the time of the incident. The details of that portion of the insurance claim are not relevant to the issues raised by defendants' pending motions and are therefore not discussed further here. See id. at 31.
Id. at 22-23.
Id. at 24.
Id. at 25-26.
Artisan then determined the net settlement value to be $53,553.68, with a $1,000 deductible, resulting in a total settlement of $52,553.68, and a “break-even” amount of $53,599.
Ridenour Decl. ¶ 7, ECF 60; id., Ex. B at 26, ECF 60-2.
Shortly thereafter, Artisan communicated the settlement summary and valuation report to plaintiff, and on March 9, 2022, plaintiff and Artisan “discussed the total loss settlement.”Plaintiff requested that the loan payoff amount be sent to him instead of Amur, but Artisan informed plaintiff that the “payment is owed to [the] finance company and will require written communication from [the] bank to do otherwise.” Plaintiff indicated that he may want to keep the trailer as “salvage.”
Id. at 29-30.
Id. at 30.
Id.
That same day, plaintiff contacted a representative at Amur to discuss options for settling the claim and the trailer financing. A representative from Amur told plaintiff there were three options for doing so: (1) Amur receives the settlement check from Artisan, and plaintiff “pays the difference in full” on the remaining financing amount for the trailer “and is able to retain salvage”; (2) Amur receives a settlement check from Artisan, and plaintiff “pays remaining balance over 6 months or less and is unable to retain salvage”; or (3) an “equipment swap.”Representatives from Artisan and Amur exchanged phone calls with each other and with plaintiff discussing the options for how the claim could be settled. Plaintiff told Amur that he wanted to do an equipment swap and did not want to pay the remaining balance to keep the trailer as salvage. On March 11, 2022, plaintiff informed Artisan that he did not want to keep the trailer. On March 14, 2022, plaintiff again confirmed with Amur that he wanted to continue with the equipment swap, and a representative from Amur told plaintiff that the equipment swap process could continue only after Amur received the settlement funds from the insurance company and a “copy of the invoice, title, and spec sheet from the dealership” from which plaintiff purchased a new trailer.
Resp. Artisan Mot. Summ. J. (“Resp. Artisan”), Ex. N at 1, ECF 66.
See id. at 1-2.
Id. at 2.
Ridenour Decl., Ex. B at 31, ECF 60-2. It should be noted that plaintiff wrote on his own version of this document that the notes in the Artisan system reflecting that plaintiff “confirmed [he would] not be keeping trailer” were false. See Resp. Artisan, Ex. O at 11, ECF 66. This is not sufficient to create a material issue of fact as to whether plaintiff actually authorized the insurance claim to be resolved as an “equipment swap” instead of an “owner retains salvage” settlement. For one thing, the internal records from Amur consistently reflect that plaintiff was told repeatedly that he could not both keep the trailer as salvage and get an “equipment swap,” and the communications between plaintiff and Amur confirm that plaintiff agreed to an “equipment swap” as a settlement. Id., Ex. N at 1-3, ECF 66. In fact, plaintiff's own declaration (which is not sworn) states that “Artisan, Amur and [plaintiff] were in the pro[cess] for replacement/swap [of] the trailer.” Harper Decl. ¶ 3, ECF 67. And, finally, it is not disputed that plaintiff did not immediately pay the remaining balance on the trailer in full after the insurance proceeds were distributed to Amur, which, as detailed above, was a required condition for plaintiff to retain the salvaged trailer. See Van Bibber Decl., Ex. D at 1, ECF 63; Resp. Artisan, Ex. N at 1-3, ECF 66. This evidence confirms that, notwithstanding plaintiff's self-serving and unsworn assertion that one communication he made to Artisan was falsely or inaccurately reported in Artisan's internal files, all parties were initially proceeding to settle the claim as an equipment swap at plaintiff's direction.
Resp. Artisan, Ex. N at 2, ECF 66.
On March 18, 2022, Amur received $53,599 in insurance proceeds and “applied those funds to the unpaid balance due” on the Equipment Finance Agreement between Amur and plaintiff. Amur then transferred title of the trailer to Artisan in exchange for the insurance proceeds. On March 22, 2022, plaintiff contacted Artisan and stated that he had changed his mind about the “equipment swap” and wanted instead to take the trailer as salvage. A representative from Artisan told plaintiff that payment for the trailer had already been sent and the check had been cashed, and thus it was not possible to change course regarding how the claim was settled. Plaintiff had a similar conversation with an Amur representative that same day.
Van Bibber Decl. ¶ 8, ECF 63.
Id. ¶ 7.
Ridenour Decl., Ex. B at 33, ECF 60-2.
Id.
Resp. Artisan, Ex. N at 3, ECF 66.
It is this impasse from which this lawsuit arises. Plaintiff tried several different ways to regain possession of the trailer, including calling local law enforcement to the salvage yard where the trailer had been sent to report the trailer as “stolen,” and refusing to sign forms that were necessary to complete the title transfer to Artisan. Plaintiff, Artisan, and Amur discussed other ways to allow plaintiff to keep the trailer, but for various reasons, none were feasible or palatable to all involved.
Compl., Ex. 14 at 1, ECF 1; Ridenour Decl., Ex. B at 38, ECF 60-2; Artisan Mot. Summ. J. 12, ECF 59.
See Artisan Mot. Summ. J. 11-14, ECF 59.
Plaintiff filed suit against Artisan and Amur, asserting a variety of claims including unjust enrichment, racketeering under federal and Oregon law, and violations of federal and state statutes that generally apply to insurance contracts. Compl. ¶¶ 8-31, ECF 1. Both Artisan and Amur have moved for summary judgment on all claims. See ECF 59, 62.
II. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if 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.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.' ” Id. at 324, (citing Fed. R. Civ. Pro. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248, (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).
III. Claims Against Artisan
Plaintiff asserts the following claims against Artisan:
• “15 USC Ch. 93 Insurance 6701. Et seq; ORS 742.558(1) Dispute resolution process”;
• “18 USC Ch 96 1961 Et. Seq Racketeering Influence”;
• “ORS 166.720 Racketeering activities unlawful; penalties”; and
• Unjust enrichmentCompl. ¶¶ 11, 16, ECF 1 (as written). Plaintiff is proceeding pro se, and the Ninth Circuit has “held consistently that courts should construe liberally motion papers and pleadings filed by pro se [parties] and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010); see also Jackson v. Bowser, No. 2:20-cv-01090-SB, 2023 WL 2696679, at *1 (D. Or. Feb. 7, 2023). Read broadly, plaintiff's complaint and responsive briefing seem to primarily assert that the insurance coverage claim regarding the fire damage to plaintiff's trailer was not resolved to plaintiff's satisfaction. See Resp. Artisan 4, ECF 66 (“[Plaintiff] has brought claims against [Artisan], the party who insured the Trailer and illegally keep [plaintiff's] Oregon title, and the trailer Vin#1D9BG5532XL1609882.”) (as written with modifications to party names). The court agrees with defendant Artisan's characterization of plaintiff's complaint as primarily asserting a breach of insurance contract claim against Artisan. See Artisan Mot.
Summ. J. 2, ECF 59. Artisan has moved for summary judgment on the breach of insurance contract claim as well as the claims for relief that plaintiff specifically asserted in the complaint. Id. at 2-3. The analysis below addresses all those arguments.
A. Breach of Insurance Contract Claim
To prove a claim for breach of contract under Oregon law, the plaintiff must establish “the existence of a contract, its relevant terms, plaintiff's full performance and lack of breach[,] and defendant's breach resulting in damage to plaintiff.” Moyer v. Columbia State Bank, 316 Or.App. 393, 402 (2021), review denied, 369 Or. 705 (2022). A federal court, sitting in diversity jurisdiction, applies state law to interpret an insurance policy contract. Travelers Prop. Cas. Co.of Am. v. ConocoPhillips Co., 546 F.3d 1142, 1145 (9th Cir. 2008).
There is no dispute that plaintiff and Artisan entered into a contract for an insurance policy covering the trailer at issue, and that plaintiff submitted a claim under that policy after the February 2022 fire incident that damaged the trailer. Ridenour Decl., Ex A, ECF 60-1. Nor is there any dispute that Artisan resolved the claim by paying $53,599 to Amur, and that Amur, as a result of the payment, transferred the title to Artisan. Van Bibber Decl. ¶¶ 7-8, ECF 63. Plaintiff has not, however, identified any term of the insurance contract that Artisan breached, and therefore any claim for breach of contract against Artisan that could be implied from plaintiff's complaint necessarily fails.
One of plaintiff's primary complaints seems to be that Artisan sent payment to Amur, rather than to plaintiff, in setting the insurance claim. See Compl. ¶ 18, ECF 1 (“Artisan sends payment to Amur without Harper's agreements”) (as written). But the insurance policy provides for precisely this type of payment arrangement if the insured equipment was subject to a financing agreement. See Ridenour Decl., Ex. A at 101, ECF 60-1 (identifying Amur as “Loss Payee” under the insurance policy); id. at 268 (providing that Artisan will pay the “Loss Payee” for a loss covered under the policy and then “will obtain the Loss Payee's rights against any other party”).
Nor can plaintiff succeed on any claim that Artisan breached the insurance contract by refusing to allow plaintiff to take possession of the trailer as “salvage” or by wrongly refusing to deliver title to the trailer back to plaintiff. See Compl. ¶¶ 26-28, ECF 1 (alleging that “Artisan violated their own rules” by refusing to allow plaintiff to “retain [his] vehicle salvage”). The insurance policy provides for “salvage” as follows:
If we pay the actual cash value of your insured auto less the deductible, or if we pay the amount necessary to replace your insured auto less the deductible, we are entitled to all salvage. If your insured auto is a total loss and we pay the applicable Limit of Liability or Stated Amount as shown on the declarations page less the deductible, we are entitled to the same percent of salvage as our payment bears to the actual cash value of your insured auto.Ridenour Decl., Ex. A, ECF 60-1 at 267 (emphasis omitted). Artisan determined that plaintiff's trailer was a total loss with an actual cash value of $54,574, and a net settlement value of $53,553.68, with a $1,000 deductible, for a total settlement value of $52,553.68. Ridenour Decl. ¶ 7, ECF 60; id., Ex. B at 25-26, ECF 60-2. Artisan paid Amur $53,599 as part of settling the insurance claim, and thus under the insurance policy, Artisan was entitled to retain the salvage. See Van Bibber Decl. ¶ 8, ECF 63. Moreover, even if plaintiff is correct that he should have had the option to seek to retain the salvage himself, the evidence in the record shows that plaintiff instructed Artisan and Amur that he initially wanted to settle the insurance claim as an equipment swap and that he did not intend to keep the trailer as salvage. Ridenour Decl. ¶ 9, ECF 60; see also id., Ex. B at 31, ECF 60-2; Resp. Artisan, Ex. N at 2, ECF 66. In response to those instructions, Artisan settled the claim with Amur and received the title to the trailer from Amur, as Artisan was entitled to do under the terms of the insurance policy set out above. See Van Bibber Decl. ¶¶ 7-8, ECF 63. Plaintiff may be ultimately unhappy with his decision to pursue an equipment swap, but that does not provide any basis for finding that Artisan breached the insurance policy.
Finally, to the extent plaintiff seems to assert that Artisan wrongly refused to pay plaintiff for “income loss,” see Resp. Artisan 2, ECF 66, that claim also fails because plaintiff's insurance policy does not cover lost income. See Ridenour Decl., Ex. B at 52, ECF 60-2 (noting no policy provisions allowed for lost income; no such policy provisions had been purchased); see also id., Ex. A at 203-303, ECF 60-1. Therefore, defendant Artisan is entitled to summary judgment on any claim that could be broadly read from plaintiff's complaint as alleging breach of contract based on the insurance policy between plaintiff and Artisan.
B. “Dispute Resolution Process” Claim
Plaintiff also asserts that Artisan violated O.R.S. 742.558(1) , which provides:
Plaintiff's complaint alleges that Artisan violated “15 USC Ch. 93 Insurance 6701. Et seq; ORS 742.558(1) Dispute resolution process.” See Compl. 5, ECF 1. Plaintiff does not specify which of the numerous subsections of 15 U.S.C. § 6701 that he relies upon for his claims against Artisan. Moreover, plaintiff's request for relief in the complaint, as well as plaintiff's response to Artisan's motion for summary judgment, focuses on O.R.S. 742.558(1) as the basis for his claim. See Compl. 8, ECF 1; Resp. Artisan 5, ECF 66. Thus, the court's analysis focuses on that provision of state law.
(1) An insurer shall pay the insured or third-party owner of a motor vehicle the amount of the motor vehicle's value that is not in dispute if the insurer declares the motor vehicle a total loss and the insurer and the insured or third-party owner are unable to agree on the value of the motor vehicle. Acceptance of payment of the undisputed amount neither waives the rights of the insured or third-party owner under the policy nor prevents the insured or third-party owner from pursuing a claim for additional amounts. Payment of the undisputed amount by the insurer does not waive any rights of the insurer under the policy.See also Compl. 5, 8, ECF 1; Resp. Artisan 5-7, ECF 66. As applied to the situation here, Artisan was to pay the Amur as the “third-party owner” of the trailer for the value of the trailer in the event of a total loss. See O.R.S. 742.558(1). That is exactly what happened here. Therefore, plaintiff's claim against Artisan under O.R.S. 742.558(1) necessarily fails.
C. Racketeering Claim
Artisan also moves for summary judgment on plaintiff's claims for racketeering under state and federal law. Artisan Mot. Summ. J. 19-24, ECF 59; See also Compl. 5, ECF 1 (citing O.R.S. 166.720, 18 U.S.C. § 1961). Plaintiff's racketeering claims against Artisan are without merit for several reasons, but primarily because plaintiff has failed to allege, much less provide evidence showing, that Artisan engaged in any “racketeering activity” as that term is defined under state or federal law. See O.R.S. 166.715 (defining “racketeering activity” as including an attempt to commit specific types of crimes under state law); 18 U.S.C. § 1961(1) (defining “racketeering activity” to include “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical . . . which is chargeable under State law and punishable by imprisonment for more than one year” or “any act which is indictable under any of the following provisions” of the federal criminal code). Thus, plaintiff's claims for racketeering against Artisan under state and federal law necessarily fail.
D. Unjust Enrichment Claim
Finally, Artisan moves for summary judgment on plaintiff's claim for unjust enrichment. Artisan Mot. Summ. J. 24-25, ECF 59. Oregon courts analyze claims for unjust enrichment on a “case-by-case basis” by “examin[ing] the established legal categories of unjust enrichment as reflected in Oregon case law and other authorities to determine whether any particular enrichment is unjust.” Alexander Loop, LLC v. City of Eugene, 297 Or.App. 775, 789 (2019) (citing Larisa's Home Care, LLC v. Nichols-Shields, 362 Or. 115, 132 (2017)). Plaintiff has not provided any basis on which to find that Artisan was unjustly enriched when it received title to the trailer from Amur in exchange for paying Amur $53,599 for the trailer as part of settling plaintiff's insurance claim. As explained above, Artisan resolved the insurance claim for the trailer consistent with the terms of the insurance policy. Therefore, plaintiff's claim for unjust enrichment against Artisan fails as a matter of law.
IV. Claims Against Amur
Plaintiff alleges the following claims against defendant Amur:
• Breach of fiduciary duty under 29 U.S.C. § 1109;
• “Fiduciary responsibilities” under O.R.S. 646A.787;
• “Refund” under O.R.S. 646A.781(2); and
• Unjust enrichmentCompl. ¶¶ 9, 11-13, ECF 14. Defendant Amur has moved for summary judgment against each of these claims. Amur Mot. Summ. J. 3-7, ECF 62.
A. 29 U.S.C. § 1109 Claim
Plaintiff asserts a claim for “Liability for Breach of Fiduciary Duty” pursuant to 29 U.S.C. § 1109, which provides in pertinent part:
(a) Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. A fiduciary may also be removed for a violation of section 1111 of this title.29 U.S.C. § 1109(a). This statute is a “fiduciary duty provisio[n] under the Employee Retirement Income Security Act” (“ERISA”). Carney v. Wall, No. 3:22-cv-00200-IM, 2022 WL 561987, at *2 (D. Or. Feb. 24, 2022). “ERISA is a comprehensive and reticulated statute, the product of a decade of congressional study of the Nation's private employee benefit system.” Toohey v. Wyndham Worldwide Corp. Health & Welfare Plan, 673 F.Supp.2d 1223, 1228 (D. Or. 2009) (quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209 (2002)).
There is nothing in plaintiff's complaint or evidence that supports an ERISA claim against Amur. The undisputed evidence shows that plaintiff is not and has never been an employee of Amur, and that plaintiff is not a beneficiary of any ERISA plan over which Amur has any authority or control. Van Bibber Decl., ¶¶ 13-14, ECF 63; See also Landwehr v. DuPree, 72 F.3d 726, 733 (9th Cir. 1995) (“Under 29 U.S.C. §§ 1109(a) and 1132(a)(2), ERISA beneficiaries may bring an action against fiduciaries who breach their duties to the plan, and may recover both damages and equitable relief from them.”). Accordingly, Amur is entitled to summary judgment on plaintiff's ERISA breach of fiduciary claim under 29 U.S.C. § 1109(a).
B. O.R.S. 646A.787 Claim
Plaintiff asserts a claim against Amur for “[f]iduciary responsibilities” under O.R.S. 646A.787. Compl. ¶ 11, ECF 1. That statute provides in pertinent part:
(1) A person that is subject to ORS 646A.770 to 646A.787 shall act in a fiduciary capacity with respect to funds the person receives or holds for the benefit of another person.O.R.S. 646A.787(1). The referenced statutory sections, O.R.S. 646A.770 to 646A.787, apply generally to “guaranteed asset protection waivers,” which are defined as a contractual provision of or an addendum to a finance agreement that is secured by a motor vehicle under the terms of which
a creditor agrees to waive the creditor's right to collect all or part of an amount due from a borrower under the terms of the finance agreement or to release a borrower from an obligation to pay the creditor an amount due under a finance agreement if the motor vehicle:
(a) Suffers physical damage that is equivalent to a total loss; or
(b) Is stolen and is not recovered.O.R.S. 646A.770(5). As defendant Amur explains, and plaintiff does not contest, a “guaranteed asset protection waiver” is “a financial tool that a borrower can purchase, if offered by a creditor, under which the creditor agrees to waive its right to receive all or part of an amount due from a borrower under the finance agreement if certain conditions arise.” Amur Mot. Summ. J. 4-5, ECF 62.
The Equipment Finance Agreement that plaintiff (below referenced as “you” or “your”) and Amur (below referenced as “us” or “we”) entered into regarding the financing of the trailer provides as follows:
2. Grant of Security Interest. You hereby grant to us a security interest in the Collateral and all proceeds to secure all of your obligations under this EFA. Disclaimer of Warranties and Claims. We make no representation or warranty as to any matter whatsoever including the merchantability or fitness for a particular
purpose of the Collateral. This EFA is irrevocable. Your obligation to pay all amounts payable hereunder is absolute and unconditional and will not be subject to any reduction, setoff, defense, counterclaim, deferment or recoupment for any reason. You acknowledge you selected the Collateral and the Supplier and the Supplier is not our agent nor are we its agent. You agree the Collateral will only be used for commercial or business purposes only and in compliance with law.
3. Collateral. You will not modify or change location of the Collateral without our prior consent and allow us to inspect it upon our request. At your expense you will maintain the Collateral in good operating condition and repair. You will keep the Collateral free and clear from all liens and encumbrances. Titled Collateral will be titled and/or registered as we direct. You are responsible for any damage or destruction of the Collateral .Van Bibber Decl., Ex. A at 1, ECF 63 (emphasis added). The Finance Agreement did not include a guaranteed asset protection waiver; instead, the Finance Agreement required that plaintiff was responsible for the full amount of the financing Amur provided, regardless of what happened to the trailer (referenced above as the “collateral”). See also Van Bibber Decl. ¶ 5, ECF 63 (“Under the terms of the EFA and the Guaranty, [p]laintiff is obligated to repay all indebtedness due and owing to Amur under the EFA, regardless of the disposition of the Collateral.”).
Because the undisputed evidence shows that the Finance Agreement between plaintiff and Amur did not contain a guaranteed asset protection waiver that would then impose any fiduciary duties on Amur, plaintiff's claim for breach of fiduciary duty under ORS 646A.787 fails as a matter of law.
C. O.R.S. 646A.781(2)(b) Claim
Plaintiff also alleges a claim for “refund” under O.R.S. 646A.781(2)(b). Compl. ¶ 13-14, ECF 1. That statute provides:
(2) The terms of the guaranteed asset protection waiver may provide that if the borrower financed the purchase of the guaranteed asset protection waiver and cancels the guaranteed
asset protection waiver, if the borrower defaults on the obligation set forth in the finance agreement, if the creditor repossesses the motor vehicle that secures the obligation or if the finance agreement terminates for a reason other than the borrower's satisfaction of the obligation set forth in the finance agreement, any refund due as a consequence of the termination may be:
(a) Paid directly to the creditor; or
(b) Applied to any outstanding balance on the obligation set forth in the finance agreement, unless the borrower has paid the obligation in full. If the borrower has paid the obligation in full, the creditor shall pay to the borrower the refund.O.R.S. 646A.781(2). Plaintiff asserts that under subsection (2)(b) of this statute, he is entitled to a “refund” from Amur in the amount of $76,873.68. Resp. 6, ECF 64. But again, the undisputed evidence shows there was no guaranteed asset protection waiver between plaintiff and Amur that would trigger the refund provision subsection (2)(b). Van Bibber Decl. ¶ 5, ECF 63; id., Ex. A at 1, ECF 63. Therefore, plaintiff cannot establish a claim for refund under O.R.S. 646A.781(2)(b).
D. Unjust Enrichment Claim
Plaintiff's complaint and responsive briefing seem to assert that Amur was unjustly enriched at plaintiff's expense, or that plaintiff was damaged in some way because Amur sent the title for the trailer to Artisan as part of the insurance claim process. See Compl. ¶ 9, ECF 1; Resp. 4, ECF 64 (noting that Amur received $76,873.68 and the original financed amount that Amur provided was $54,472.92, resulting in $22,400.76 in “income” to which Amur was allegedly “not entitled”); id. at 6, ECF 64 (“The defendant Amur created chain reaction for trailer disappearance by illegally mail title to Artisan Insurance Company without Harper's authorization[.]”).
Plaintiff observes that the trailer purchase price was $59,487.92. Resp. 3, ECF 64. To finance the purchase, plaintiff provided $5,015.00 for a down payment, and Amur provided financing in the amount of $54,487.92 for the remaining balance. Id. Under the Finance Agreement, plaintiff was obligated to pay Amur $1,067.69 per month for 72 months, for a total of $76,873.68. See id. Plaintiff made monthly payments to Amur between December of 2020 through February of 2022. Van Bibber Decl., Ex. D at 1, ECF 63. Amur received insurance proceeds from Artisan to cover the loss of the trailer in the amount of $53,599. Id. ¶ 8; id., Ex. C at 1. To cover the balance remaining on the Finance Agreement, plaintiff's monthly payments were adjusted to be $1,209.88 per month for five months, starting in April of 2022, and a final payment of $1,209.93 in September of 2022. Id., Ex. C at 1. Plaintiff made those final payments; therefore, Amur received $76,873.68 in payments from plaintiff and from the insurance proceeds. Id. ¶ 11. However, to the extent that plaintiff's complaint or other materials could be broadly read as asserting a claim for unjust enrichment against Amur, that claim necessarily fails because Amur did not receive any more than it was legally entitled to under the terms of the Finance Agreement. See LRY, LLC v. Lake Cnty., No. 1:17-cv-00675-MC, 2018 WL 5300387, at *7 (D. Or. Oct. 25, 2018) (explaining that “the paradigm case of unjust enrichment is one in which the benefit of one side of the transaction corresponds to an observable loss on the other”) (citing Restatement (Third) of Restitution § 1 cmt. a, e(3)).
V. Punitive Damages
Plaintiff's complaint seeks punitive damages against Artisan and Amur under O.R.S. 31.730. Compl. ¶¶ 14, 31, ECF 1. Because plaintiff has not established any claim against Artisan or Amur, his request for punitive damages fails. See Moutal v. Exel, Inc., No. 21-35303, 2022 WL 3031580, at *1 (9th Cir. Aug. 1, 2022) (“Oregon law permits a punitive damages award when clear and convincing evidence shows a tortfeasor ‘acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.' ”) (quoting O.R.S. 31.730(1)).
VI. Attorney Misconduct
Finally, in response to Artisan and Amur's motions for summary judgment, plaintiff asserts that counsel for the defendants should be subject to sanctions, including suspension or disbarment, apparently in connection with some apparent discrepancy in the emails that the parties exchanged in attempting to settle the case. See Resp. Artisan 8-9, ECF 66; Resp. Amur 7-8, ECF 64. Even is plaintiff had properly asserted his request for sanctions by separate motion as required by Federal Rule of Civil Procedure 11(c)(2), and even if this court was empowered to disbar or suspend an attorney under Oregon law (which it is not), plaintiff's request for sanctions is meritless.
RECOMMENDATIONS
Defendant Artisan and Truckers Casualty Company's Motion for Summary Judgment [59] and defendant Amur Equipment Finance Inc.'s Motion for Summary Judgment [62] should both be granted, judgment should be entered for these defendants, and this case should be closed.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, March 15, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.