Ninth Circuit Affirms Judgment, Rejecting Plaintiffs’ Belated Effort To Change Insurance Bad Faith Theories

Plaintiffs injured in a car accident obtained an assignment of the at-fault driver’s rights and sued the driver’s insurance carrier for bad faith.  They alleged that they had sent the carrier a settlement demand letter, but the carrier failed to timely accept.  The carrier moved for summary judgment, presenting indisputable evidence that the demand letter had never been sent.  In opposing summary judgment, plaintiffs attempted to change their liability theories.  They claimed for the first time that the carrier had improperly settled a third party’s injury claims, failed to disclose all insureds on the underlying policy, and failed to interplead the policy limits.  The Ninth Circuit Court of Appeals affirmed summary judgment, unanimously adopting GMSR’s arguments.  The court held that “it was improper to advance these new theories for the first time” in opposing summary judgment and, in any event, those theories lacked merit.