United States District Court, W.D. Oklahoma
STACY A. BONCIC, Plaintiff,
PERMANENT GENERAL ASSURANCE CORPORATION, GENERAL AUTOMOBILE INSURANCE SERVICES, INC., and AUDATEX NORTH AMERICA, INC., Defendants.
L. PALK UNITED STATES DISTRICT JUDGE.
the Court is the Motion to Dismiss [Doc. No. 19] filed by
Defendant Audatex North America, Inc. It is at issue.
See Resp., Doc No. 21; Reply, Doc. No.
Stacy Boncic obtained collision and comprehensive insurance
coverages for her vehicle from Defendant Permanent General
Assurance Corporation (PGAC). The comprehensive coverage
included losses caused by floods. Plaintiff asserts that the
total due to her from PGAC was controlled by the following
portion of her insurance policy:
For a loss covered under [the physical damage section of the
insurance policy], we will not pay more than our Limit of
Liability which is the lesser of:
a. The actual cash value, at the time of loss, of the damaged
or stolen auto, or its parts if the loss is limited to parts;
b. The amount necessary to repair physical damage to the
auto, or its parts if the loss is limited to parts, to return
it to its pre-loss physical condition. No. amount for any
diminution of value or other change in market value of the
auto will be included in, or paid with, the amount to repair;
c. The amount necessary to replace the damaged or stolen
auto, or its parts if the loss is limited to parts, with that
of like kind and quality; or
d. Any stated limit of liability, as shown on the
declarations page, for loss to custom furnishings and
equipment for which you have paid the extra premium for
custom furnishings and equipment coverage.
Auto Policy 20, Doc. No. 1-2 (bold emphasis omitted) (Exhibit
No. 1 to Plaintiff's state-court-filed Petition). Per the
insurance policy, “‘[a]ctual cash value'
means, at the time of the accident or loss, the fair market
value of the stolen or damaged property. The fair market
value is affected by: a. The age, mileage and physical
condition of the property; and b. Depreciation and prior
damage; which may reduce value.” Id. at 4
(bold emphasis omitted).
September 3, 2018, Plaintiff's vehicle flooded with salt
water in Galveston, Texas. Plaintiff subsequently submitted
an insurance claim to PGAC and Defendant General Automobile
Insurance Services, Inc. (GAIS) The specific relationship
between these defendants is unclear, though Plaintiff treats
them as partners in the insurance claim-handling process (as
the Court will do in deciding Audatex's motion). PGAC and
GAIS eventually declared Plaintiff's vehicle to be a
handling Plaintiff's insurance claim, PGAC and GAIS
utilized Autosource-a software program owned by Audatex that
it sells and/or licenses to insurers-to determine the
“market value” (also described as the
“market driven value”) of Plaintiff's
vehicle. See Autosource Market-Driven Valuation 2,
Doc. No. 1-2 (Exhibit No. 6 to Plaintiff's
state-court-filed Petition). In addition to evaluating the
condition of various portions of Plaintiff's vehicle
(e.g., mileage, seats condition, glass condition, engine
condition, and transmission condition) and making adjustments
to a base price for any other-than-expected wear or damage
(which Plaintiff challenges), the Autosource valuation
determines a vehicle's local market value based on the
prices associated with other automobiles pulled from
“dealer inventories, dealer advertisements, phone
verified vehicles, and private party advertisements from
thousands of sources including automotive publications,
newspapers and Web sites.” Id. Plaintiff
asserts that these comparator vehicles were not, in fact,
comparable-resulting in undervaluation of her vehicle by
Autosource and underpayment of the amount due to her by PGAC.
Plaintiff also asserts that the Autosource valuation's
adjustment of advertised prices of comparator vehicles for
“typical negotiation” price decreases
(approximately 5% of the comparators' advertised prices)
resulted in undervaluing the comparator vehicles, thereby
undervaluing her vehicle, and proposed or actual payment to
her of less than actual cash value for her
vehicle. See Pet. ¶ 17, Doc. No. 1-2.
Plaintiff also faults the Autosource valuation with
inadequate explanation of how comparator vehicles' values
are calculated, and she alleges that “[t]he intent and
effect of the Autosource valuation is to intentionally
obscure the most controversial aspects of the valuation and
mislead insureds concerning the quality of the evaluation and
the unlawfulness of key aspects of the [Autosource
v]aluation.” Id. ¶ 19.
on the Autosource valuation, PGAC and GAIS determined the
fair market value of Plaintiff's vehicle (not taking into
account her deductible) was $20, 338. Plaintiff alleges that
this amount undervalued her vehicle by $2, 254 to $2, 429.
asserts five causes of action-two of which (breach of
contract and unjust enrichment) are asserted against PGAC
alone, two of which (breach of the duty of good faith and
fair dealing (i.e., the tort of bad faith) and
fraud/constructive fraud/negligent misrepresentation) are
asserted against PGAC and GAIS, and the last of which
(tortious interference with a contract) is asserted against
GAIS and Audatex. Only the tortious interference with a
contract claim against Audatex is at issue ...