William Hansen, #1353

Karra Porter, #5223

Bryson R. Brown, #14146
CHRISTENSEN & JENSEN, P.C.
257 East 200 South, Suite 1100
Salt Lake City, Utah 84111
Telephone: (801) 323-5000
Facsimile: (801) 355-3472
karra.porter@chrisjen.com
william.hansen@chrisjen.com
bryson.brown@chrisjen.com
Attorneys for Plaintiff

IN THE THIRD JUDICIAL DISTRICT COURT,

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH
RACHEL ESKAMANI, an individual,
FIRST AMENDED COMPLAINT
Plaintiff,
vs.

Case No.: 150905157

AUTO OWNERS INSURANCE COMPANY

aka AUTO-OWNERS INSURANCE
COMPANY,

The Hon. Royal I. Hansen

TIER 3
Defendants.

Plaintiff Rachel Eskamani, by and through her counsel of record, hereby submits her First
Amended Complaint.
PARTIES
1.

Plaintiff Rachel Eskamani aka Rachel Bartnicki (Ms. Eskamani) is a resident of

the State of Utah, and is a resident of Salt Lake County.

2.

Defendant Auto-Owners Insurance Company (Auto-Owners) is a foreign

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.

Venue is proper under Utah Code 78B-3-307.

GENERAL ALLEGATIONS

5.

Ms. Eskamani operated a business called Bella Citta Gelato & Caf which was

located at 2101 East 94th South in Sandy, Utah.

6.

In December 2009, the caf flooded.

7.

Ms. Eskamani pursued a claim against Four Seasons Telecommunications, Inc.,

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,

Ms. Eskamani brought a negligence action against Four Seasons.

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.

In the fall of 2011, as her frustration with Auto-Owners handling of the

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,

Auto-Owners authorized or directed an attorney, Peter H. Barlow, to send a letter to someone he

believed represented Ms. Eskamani, stating, inter alia:
Auto Owners Insurance has asked me to advise it regarding Mrs. [Eskamani]s
actions and efforts to influence public opinion against Auto Owners, as the insurer
of Four Seasons Communications. After reviewing the comments made by Mrs.
[Eskamani] and her agents it is our opinion that some of the statements are
libelous and actionable under Utah law. I have thoroughly reviewed the
statements made by Mrs. [Eskamani] and her agents in Facebook, on the KSL
news broadcast, and in the signage that continues to exist in the former Bella Citta
shop location. Auto Owners would like to resolve this matter without resorting to
further litigation.
14.

The November 14, 2011, letter continued:

I am demanding on behalf of Auto Owners Insurance that Mrs. [Eskamani]
cease and desist from making defamatory and libelous statements. Moreover, her
libelous signs continue to be posted in and around her stores former location.
We demand that these signs be removed. Auto Owners also demands that Mrs.
[Eskamani] immediately stop making her defamatory and libelous comments on

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.

On or about December 2, 2011, Auto-Owners attorney sent Ms. Eskamani an

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

to Ms. Eskamani that stated, in part:

Auto Owners agrees that a lawsuit arising from your tortious actions would be
inconvenient, costly, and time consuming. If I were advising a client in your
position, I would counsel them to take down the offending messages, and let the
underlying litigation take its proper course, and trust in the system.
17.

Ms. Eskamani responded to Mr. Barlows letter via email, asking Auto-Owners to

identify the specific statements that Auto-Owners believed were defamatory:

Can you please specify in detail which offending messages and libelous
statements from my Facebook page you and your client are requesting that I
remove/take down? Once I receive a detailed list, I will review and promptly
respond.
18.

Instead of identifying specific statements as Ms. Eskamani had requested, Auto-

Owners stated, Mrs. [Eskamani], we are asking you to remove all of them. (Emphasis added).
19.

Ms. Eskamani then wrote back stating, in part:

You will have to excuse my naivite [sic], but it is my opinion that none of the
statements that I have made are defamatory.
It is also my opinion that it is unreasonable for you to ask me to remove every
single statement. If you will not or cannot identify each and every statement and

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.

On December 12, 2011, Auto-Owners, via Mr. Barlow, responded to Ms.

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.

In response, Ms. Eskamani wrote,

Peter, Force your hand??? On the contrary Mr. Barlow, I asked you to specify
which comments you and your client wish me to remove, and I would review
them and respond accordingly. It is you and your client that are not being
reasonable or conciliatory. It is absolutely absurd that you and your client
would think it even remotely reasonable to ask me to remove every single
comment and sign. Such a demand is preposterous and baseless.

22.

On January 6, 2012, Auto-Owners sued Ms. Eskamani.

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.

Auto-Owners designated the Defamation Suit as Tier 2, which meant that

Auto-Owners was seeking damages of $50,000-299,000.

25.

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.

In the Defamation Suit, Auto-Owners represented that, as a result of Ms.

Eskamanis alleged actions, it had been damaged and had sustained damages.
27.

In the Defamation Suit, Auto-Owners asked for punitive damages and attorney

fees against Ms. Eskamani.

28.

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

not caused Auto-Owners any damages, economic or otherwise.

Similarly, at the time the

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.

On at least one occasion, Auto-Owners stated that it would dismiss the

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.

Eskamanis statements had not caused Auto-Owners damages, Auto-Owners continued to

prosecute the Defamation Suit by conducting discovery, including a motion to compel discovery,
and filing a motion for summary judgment.
33.

At the close of discovery, a representative of Auto-Owners conceded under oath

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.

Eventually, Auto-Owners defamation per se claim came up for judicial review.

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.

Ms. Eskamani incorporates by reference all other paragraphs of this Complaint as

though fully set forth herein.

41.

Auto Owners took an active part in the initiation, continuation, or procurement of

the Defamation Suit.

42.

In bringing and prosecuting the Defamation Suit, Auto-Owners acted without

probable cause.
a.

A reasonable person would not have believed that the statements that Ms.
Eskamani made about Auto-Owners were actionable.

b.

Auto-Owners knew, believed, or acted in reckless disregard of the fact that

the statements that Ms. Eskamani made about Auto-Owners were not
actionable.

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.

Auto-Owners primary purpose in bringing the defamation suit was to

retaliate against Ms. Eskamani and to gain leverage in the Negligence Suit
by causing her financial hardship and inconvenience, not to secure the
proper adjudication of its claims.

44.

b.

Auto-Owners knew that it could not prove damages.

c.

Auto-Owners knew that the Statements were not actionable.

The Defamation Suit terminated in favor of Ms. Eskamani.

SECOND CLAIM FOR RELIEF
(Abuse of Process)

45.

Ms. Eskamani incorporates by reference all other paragraphs of this Complaint as

though fully set forth herein.

46.

In bringing and prosecuting the Defamation Suit, Auto-Owners primarily acted

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

vindicate a breach of duty or to collect damages.

a.

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.

Auto-Owners knew and believed that the claims it raised in the

Defamation Suit were not sustainable.

48.

In bringing and prosecuting the Defamation Suit, Auto-Owners engaged in acts in

the use of the process not proper in the regular prosecution of the proceedings.
a.

Auto-Owners filed a complaint knowing that there was no probable cause

for the claims asserted therein.

b.

Auto-Owners filed a complaint for damages knowing that it had suffered

no damages.

c.

Auto-Owners conducted discovery on claims that it did not intend to prove

and, in fact, withdrew after discovery had concluded.

d.

Auto-Owners conducted discovery knowing that there was not a

reasonable basis for its claim and believing that it likely would not

10

discover information to support its claims or to support an award of actual

damages.
e.

On at least one occasion, Auto-Owners offered to dismiss its Defamation

Suit if Ms. Eskamani would accept a particular settlement in the
Negligence Suit.
PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against Auto-Owners as follows:

A.

Economic and noneconomic damages as provided under applicable law and

deemed appropriate by a jury;

B.

Punitive damages against Auto-Owners as provided under applicable law and to

the extent deemed appropriate by a jury;

C.

Costs as provided under applicable law;

D.

Pre-judgment and post-judgment interest as provided under applicable law; and

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