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Farrand v. American General Life Insurance Co.

United States District Court, D. Utah, Northern Division

January 22, 2019

MOLLY FARRAND, Plaintiff,
v.
AMERICAN GENERAL LIFE INSURANCE COMPANY, Defendant.

          MEMORANDUM DECISION AND ORDER

          DEE BENSON, UNITED STATES DISTRICT JUDGE

         District Judge Dee V. Benson Before the Court is Defendant's Motion for Summary Judgment on Plaintiff's breach of contract claim, which was filed on June 22, 2018. (Dkt. No. 45.) Plaintiff filed a memorandum in opposition to Defendant's motion on July 27, 2018. (Dkt. No. 54.) Defendant filed a reply in response to Plaintiff's opposition on August 24, 2018. (Dkt. No. 55.) On December 11, 2018, the Court heard oral argument on Defendant's motion, as well as Defendant's Motion to Exclude Plaintiff's Damages Expert Thomas Pastore and Defendant's Motion to Exclude Plaintiff's Insurance Expert Bennett Bibel. (Dkt. Nos. 42-43.) At the conclusion of the hearing, the Court opted to take the matter under advisement with a written order to follow. The Court now enters the following Memorandum Decision and Order granting Defendant's Motion for Summary Judgment.

         BACKGROUND

         On April 13, 2014, Vincent Farrand had an argument with his wife Molly Farrand at their Centerville, Utah home about a friend, Brett Clyde, as Mr. Clyde had purportedly made an unsolicited sexual advance toward her a few weeks earlier. (Dkt. No. 2 at 3; Dkt. No. 45 at 8.) In response, Mr. Farrand grabbed one of his firearms and left his house. Id. Mrs. Farrand testified she “believed” that her husband had been drinking that day, which was later confirmed by a toxicology report. (Dkt. No. 54 at 7, 12-13.) After her husband left with the gun, Mrs. Farrand called 9-1-1 to report her concern about what her husband might do to Mr. Clyde while in that mental state. (Dkt. No. 45 at 8.) She told the 9-1-1 dispatcher, “He wants to go kill him. I'm afraid he is either going to kill himself or this other person.” Id.

         While Mrs. Farrand was on the phone with the dispatcher, she reported that Mr. Farrand came back into the house and put the gun back in the safe. (Dkt. No. 45-6 at 6-7.) Police officers arrived soon thereafter, and parked outside the house. (Dkt. No. 45 at 8.) Mrs. Farrand told her husband that the police wanted him to come outside, and at that moment she reported to the 9-1-1 dispatcher, “He does have weapons again . . . . [H]e has the .22 handgun and another gun. And I think he wants the police to shoot him . . . He's been suicidal for a long time . . . He'll pistol whip them. Suicide by cops.” (Dkt. No. 45-6 at 12-13.) Around this time, Mr. Farrand also sent a text message to his son stating “Hey Logan I love you . . .” (Dkt. No. 45 at 8.) Mrs. Farrand repeated her fearful sentiment later on the same call: “He's suicidal, and I'm afraid he wants suicide by cops.” (Dkt. 45-6 at 13.) Mr. Farrand had previously struggled with depression, including an alleged prior suicide attempt. (Dkt. No. 54 at 8.)

         Mrs. Farrand also told the dispatcher “I have a very large dog who will protect me. Please, please, don't hurt my dog.” (Dkt. No. 45-6 at 13.) She then informed the dispatcher that the police had arrived, hung up the phone, and exited the house through a side door to meet the arriving officers. (Id.; Dkt. No. 54 at 10.) Officer Jason Read first apprehended Mrs. Farrand, and then turned her over to Officer Preston Casey who led her away from the scene to a police car. (Dkt. No. 54 at 10.)

         Mr. Farrand eventually exited through the front door of his house, holding a pistol down by his side; two neighbor witnesses testified in witness statements that they saw Mr. Farrand exit the front of his house with a gun in his hand, supporting the officers' testimonies. (Dkt. No. 45 at 9; Dkt. No. 45-9 at 2-3; Dkt. No. 54 at 10.) Farrand was then met by Officer Read. (Dkt. No. 45 at 9.) Officer Gary Thomas approached from behind to help provide cover to Officer Read, and witnessed some of the confrontation that ensued between Read and Farrand. A microphone on Officer Thomas captured their dialogue during the encounter; the dash camera on his car also caught a partial view of their confrontation. Id.

         Immediately before Mr. Farrand appears in Officer Thomas's video footage, what appears to be a dog approaches Officer Read from the house's porch area, and then returns back toward the house immediately before Mr. Farrand appears in the footage. (Dkt. No. 45-13 at 15:38:25-38:43.) Neighbor Jacob Layton witnessed that he saw Farrand turn around and let the dog back into the house and then close the door. (Dkt. No. 45-9 at 2-3.) When Farrand then turned back, Officer Read promptly asked Farrand to drop the gun. Officer Read repeatedly pleaded with Farrand throughout the entire encounter, ordering him to “Drop the gun” a total of at least nine times. (See Dkt. No. 45-13.) According to Officers Read and Thomas, Mr. Farrand never complied with Read's orders, but instead rubbed and tapped the trigger repeatedly with the gun “just down by his side.” (Dkt. No. 45-10 at 11; Dkt. No. 54 at 11.) Read accordingly gave Farrand the following order: “Don't put your finger on that trigger, man. Don't put your finger on that trigger.” (Dkt. No. 54 at 11.) Read reported that in response to this order, Farrand laughed nervously and sighed. (Dkt. No. 45-10 at 11.) During the confrontation, Farrand also responded to Officer Read at least three times with the words “Do it, ” which Officer Read interpreted to mean that Farrand was encouraging Read to shoot him. (See id.; Dkt. No. 45-13.) Officer Read states that he feared for his life and for Officer Thomas's during this encounter. (See Dkt. No. 45-10 at 11.)

         Mr. Farrand then moved toward the gate positioned between the house and the detached garage, opened the gate, and began to pass through the gate opening. (See Dkt. No. 54 at 19; Dkt. No. 45-10 at 24.) Plaintiff contends that Farrand was walking toward the fence to put their dog Brutus in the backyard because Brutus had exited the house through the side door and “most likely entered the front yard from the side gate left open when Officer Read removed [Mrs. Farrand] from the backyard.” (Dkt. No. 54 at 19.) Officer Read later confirmed that as Farrand was walking toward the backyard there was “a dog running around, ” and he further stated that he didn't “know if [Farrand] was putting the dog in the back yard or what he was doing . . . .” (Dkt. No. 45-10 at 11, 24.) Read also claimed, however, that at that moment he began to worry that if Farrand was able to get past the gate, he could enter the house through a side door and threaten anyone potentially still inside the house, as Read did not know whether anyone else remained in the house. (Id. at 11.) Read also testified that he feared losing sight of the gun, as Farrand might then be able to target him or Officer Thomas from behind the fence. (Id. at 24.)

         About two seconds before shooting Farrand, Officer Read again shouted “Drop the gun, Vince” one last time. (Dkt. No. 45-13 at 15:39:36.) According to Read's account, Farrand then turned around and gave him a “smirk” which Read said made him feel as if Farrand was saying to him “You ready?” (Dkt. No. 45-10 at 24.) At this point in Officer Thomas's dash camera footage of the encounter, Farrand is no longer visible to the camera. (See Dkt. No. 45-13.) Officer Read then claims that Farrand turned into a sideways “bladed” position, and lifted his gun toward Read. (Dkt. No. 45 at 9.) Read fired five shots, some of which hit and killed Mr. Farrand. (Dkt. No. 45-13 at 15:39:38; Dkt. No. 54 at 21.)

         After waiting for a period of time, Read testified that he walked toward the fence, kicked open the spring-loaded gate door to approach Farrand's body on the ground, and then promptly kicked the gun out of Farrand's hand. (Dkt. No. 45-10 at 12, 24.) Officer Thomas testified that he also witnessed Farrand's body on the ground with the gun still in his hand, and that he subsequently saw Read kick the gun out of Farrand's hand. (Dkt. No. 45-11 at 21.)

         Plaintiff argues that a material issue of fact remains regarding whether Mr. Farrand placed his gun on the ground prior to being shot. (See Dkt. No. 54 at 18, 21.) Attempting to contradict Read's account of the confrontation, Plaintiff submits video evidence from Officer Cannon Heslop's Body Camera of Officer Casey telling Officer Heslop that Farrand had put the gun down. (See Dkt. No. 54 at 20.) Specifically, Officer Heslop asked Officer Casey who had shot Farrand, to which Officer Casey responded in part: “He [Mr. Farrand] came out with a gun in his hand, and then put it down and started running toward the fence, and then he turned around. And Jason [Read] followed him.” (Dkt. No. 54-1, Ex. 6 at 20:00-20:32.) In further support of Plaintiff's contention, Mrs. Farrand testified in her 2017 deposition testimony that immediately before she was escorted away from the scene out of view, she saw her husband “lifting” the gun out of his waist band with his left hand before “setting” the gun down, although she clarified that she never actually witnessed the gun touch the ground. (See Dkt. No. 45-3 at 10; Dkt. No. 54 at 18.) Defendant responds that Officer Casey's statement is consistent with Read's assertion that Farrand brought the gun down to his side during the confrontation, but never actually obeyed orders to drop the gun to the ground. (Dkt. No. 55 at 3-4.)

         Plaintiff also contends that Farrand did not turn to point a gun at Read, but was instead shot in the back. (Dkt. No. 54 at 21.) Plaintiff further argues that Read would not have been able to see Farrand lift a gun toward him because the gate was closed behind Farrand at the time he was shot; Read's view of Farrand would have thus been completely obstructed by the nontransparent fence. (Id. at 21, 26.) In addition to the issue of whether Farrand actually lifted his gun toward Read, Plaintiff contends that another issue of fact remains as to whether Farrand was shot through the fence after the gate was fully closed behind him (i.e., when he was not visible to Read) or whether he was shot while the gate was open (i.e., when he remained visible to Read). Plaintiff submits that some of the bullets retrieved from Farrand's body had paint remaining on them, suggesting that they passed through the painted fence, and further that Farrand's body was found lying fully inside the backyard fence. (See Id. at 12.) Defendant responds by pointing to the Utah Medical Examiner autopsy report which concluded that the projectiles initially struck Farrand in the back, traveled through his right chest cavity, and then “exited the chest and re-entered the right arm . . .”, contending that this report is consistent with Officer Read's account of Farrand turning in a bladed position to raise his gun right before he was shot. (See Dkt. No. 55 at 4; Dkt. No. 45-16 at 2.)

         On April 21, 2016, Mrs. Farrand submitted a claim to Defendant American General Life Insurance Company (AGLIC) based on Mr. Farrand's death seeking $500, 000 in benefits under an accidental injury policy insuring her husband. (Dkt. No. 2 at 4.) Mrs. Farrand was the sole named beneficiary on that policy, which had been effective since September 28, 2011, with all monthly premiums paid up to the date of the shooting. (Id. at 3.) In response to Plaintiff's claim, Defendant retained third party Curry & Associates to acquire the Davis County Police Department's official investigation reports of the incident, which they claim included “numerous witness statements from the officers and other eye-witnesses, transcripts of interviews, a detailed ballistics analysis, a medical examiner's report, a toxicology report, an analysis of Mr. Farrand's computer and cell phone, and numerous other materials.” (Dkt. No. 45 at 9.) On August 5, 2014 Defendant determined that the claim was not payable based on the policy exclusions, and on August 18, 2014 Defendant sent a denial letter to Mrs. Farrand. (See Dkt. No. 2 at 4.) On September 21, 2016, Plaintiff brought the present case against Defendant for breach of contract, breach of the implied covenant of good faith and fair dealing, and other tortious actions. (Id. at 9-10.)

         DISCUSSION

         To prevail on its motion for summary judgment, Defendant as the moving party must show that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A disputed fact is “material if it might affect the outcome of the suit under the governing law; the dispute is genuine if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party.” Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). The Court construes all facts ...


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