Documente Academic
Documente Profesional
Documente Cultură
TIER 3
Defendants.
Plaintiff Rachel Eskamani, by and through her counsel of record, hereby submits her First
Amended Complaint.
PARTIES
1.
2.
insurance company. At all relevant times, Auto-Owners was authorized to, and did, conduct
business within the state of Utah.
JURISDICTION AND VENUE
3.
Auto-Owners prosecuted the civil action that forms the basis of Ms. Eskamanis
claims in Salt Lake County. Accordingly, jurisdiction is proper under Utah Code 78A-5102(1).
4.
5.
Ms. Eskamani operated a business called Bella Citta Gelato & Caf which was
7.
alleging that Four Seasons negligently caused the flooding. At the time, Four Seasons was
insured by Auto-Owners.
8.
Attempts to negotiate with Auto-Owners were fruitless, and on October 29, 2010,
Rachel Bartnicki, an
individual doing business as Bella Citta Gelato & Caf v. Four Seasons Communications, Inc.,
Third Judicial District Court in and for Salt Lake City, State of Utah, Civil No. 100921498.
9.
negligence claim grew, Ms. Eskamani began to express her frustration through various
communication media, including Facebook, emails, and signs posted on and around her
storefront (collectively, the Statements).
10.
In September 2011, Ms. Eskamani exercised her legal right to hold a rally at her
11.
A local television news station, KSL News, covered the rally and ran a news story
caf.
on September 15, 2011. In the September 15, 2011, news story, Ms. Eskamani made verbal
statements about Auto-Owners handling of her claim against Four Seasons.
12.
A few days after the rally, Auto-Owners representative Bruce Lawhun drove to or
past Ms. Eskamanis caf and saw the signs in her storefront windows.
13.
On November 14, 2011, nearly two months after the rally and KSL News story,
Facebook, in the news, and in all other forms of media. I have thoroughly
reviewed the statements and have them well-documented, as well as the public
and documented reactions. It will be quite easy to provide [sic] publication of the
statements as well as damages regarding this issue.
15.
email that stated, in part, Please let me know if you are willing to remove the signs from your
storefront and, if so, I will ask Auto Owners how they want to proceed.
16.
On December 10, 2011, Auto-Owners via Mr. Barlow followed up with an email
Ms. Eskamani responded to Mr. Barlows letter via email, asking Auto-Owners to
Owners stated, Mrs. [Eskamani], we are asking you to remove all of them. (Emphasis added).
19.
or sign that your client deems defamatory and wishes me to remove, I will not
remove any of them.
As soon as you can provide me with a detailed list of the items / statements that
your client wishes me to remove, as I stated in my previous email, I will review
them and respond accordingly.
20.
Eskamani as follows:
Im sorry you have chosen to force my hand in this matter. Your opinion
regarding the defamatory nature of those statements does not matter. Utah law
says that they are defamatory, and I have given you every opportunity to avoid
litigation. It is clear that you will not take a reasonable, conciliatory approach to
this matter, and I am forced to file a legal action against you. As I have said
repeatedly, I do not want to do it, but you leave me no choice. I will file the
action and have you served.
21.
22.
See Auto-Owners
Insurance Company v. Rachel Barnicki d/b/a Bella Cita Gelato & Caf, and Rachel Bartnicki,
an Individual, Third District Court in and for Salt Lake County, State of Utah, Civil No.
120900139.
23.
Auto-Owners asserted counts for Defamation, Defamation Per Se, and Tortious
Interference With Existing and Prospective Economic Relations (the Defamation Suit).
24.
In the Defamation Suit, Auto-Owners did not disclose that Ms. Eskamani had
asked Auto-Owners to identify specific statements that it considered defamatory, and that AutoOwners had refused to identify any such statements before filing suit.
26.
Eskamanis alleged actions, it had been damaged and had sustained damages.
27.
In the Defamation Suit, Auto-Owners asked for punitive damages and attorney
At the time the Defamation Suit was filed, Auto-Owners knew that the Statements
were not actionable under Utah law, or proceeded in reckless disregard thereof. Further, a
reasonable person would have recognized that its claims were not actionable, and that material
facts upon which its claims were based did not exist.
29.
When Auto-Owners filed the Defamation Suit, it knew that the Statements had
November 14, 2011, letter was sent by Auto-Owners attorney, Auto-Owners knew that it could
not in fact prove damages regarding this issue.
30.
Auto-Owners filed the Defamation Suit with the primary improper purposes of
retaliating against Ms. Bartnicki for exercising constitutionally-protected rights to free speech
and of obtaining leverage in the Negligence Suit.
31.
Defamation Suit if Ms. Eskamani would accept a particular settlement in the Negligence Suit.
This was not the first occasion on which Auto-Owners had tied a settlement of the Negligence
Suit to resolution of its dispute with Ms. Eskamani regarding the Statements.
32.
Knowing that its claims in the Defamation Suit were without merit and that Ms.
that Auto-Owners did not intend to seek anything other than nominal damages:
Were not necessarily looking for damages, because the damages would be
difficult, if not hard to prove, but we do believe we would be entitled to probably
nominal damages or whatever damages the court may determine. But we do not
intend to provide or try to prove any loss of business as a result of her statements.
34.
Auto-Owners withdrew its claims for defamation and tortious interference with
economic relations, but only after having conducted expensive and time-consuming discovery on
the pretext that those, in fact, were viable claims that Auto-Owners intended to prove and to
recover under.
35.
36.
In an order dated December 13, 2012, the court hearing the Defamation Suit
recognized that Auto-Owners had voluntarily withdrawn its defamation and tortious interference
claims and dismissed them with prejudice.
37.
The same court also determined as a matter of law that none of the Statements
was defamatory per se and dismissed Auto-Owners sole remaining claim with prejudice.
CLAIMS FOR RELIEF
38.
The headings stated under each individual cause of action are for general
descriptive purposes only, and are not intended to limit the Plaintiffs claims for relief. The
Plaintiffs reserve the right to assert any legal theory or claim for relief applicable to the facts set
forth in this Complaint or an amended complaint pursuant to U.R.Civ.P. 8.
39.
The claims for relief asserted herein are asserted individually and/or in the
alternative.
FIRST CLAIM FOR RELIEF
(Wrongful Use of Civil Proceedings)
40.
probable cause.
a.
A reasonable person would not have believed that the statements that Ms.
Eskamani made about Auto-Owners were actionable.
b.
43.
In bringing and prosecuting the Defamation Suit, Auto Owners acted primarily for
a purpose other than that of securing the proper adjudication of its claims for defamation,
defamation per se, or tortious interference with economic relations.
a.
44.
b.
c.
45.
with an ulterior motive and did not use the legal processes invoked by filing the action for their
lawful and intended purposes. Auto-Owners filed the Defamation Suit for the primary improper
purpose of causing Ms. Eskamani financial hardship and inconvenience, a move which AutoOwners hoped would provide it leverage in resolving the Negligence Suit.
47.
In bringing and prosecuting the Defamation Suit, Auto-Owners did not intend to
Auto-Owners knew both before and during the Defamation Suit that the
Statements were not actionable.
b.
Auto-Owners knew both before and during the Defamation Suit that Ms.
Eskamanis statements had not caused it damages.
c.
48.
the use of the process not proper in the regular prosecution of the proceedings.
a.
b.
c.
d.
10
B.
C.
D.
E.
All other equitable relief deemed just and appropriate by the Court.
JURY DEMAND
Plaintiffs hereby demand trial by jury and tender herewith the statutory fee.
DATED this 26th day of January, 2016.
CHRISTENSEN & JENSEN, P.C.
/s/ William J. Hansen
William J. Hansen
Karra J. Porter
Bryson R. Brown
Attorneys for Plaintiff
11
CERTIFICATE OF SERVICE
I hereby certify that on this 26th day of January, 2016, a true and correct copy of the
foregoing FIRST AMENDED COMPLAINT was delivered via the courts electronic filing
system to the following:
Richard K. Glauser
rkg@smithglauser.com
Albert W. Gray
awg@smithglauser.com
SMITH & GLAUSER, P.C.
1218 East 7800 South, Suite 300
Sandy, UT 84094
/s/ Bengta M. Williams
12