Espensched v. Fleetwood , 422 P.3d 829 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 32
IN THE
SUPREME COURT OF THE STATE OF UTAH
ESPENSCHIED TRANSPORT CORP.,
Appellant,
v.
FLEETWOOD SERVICES, INC. and WILSHIRE INSURANCE COMPANY,
Appellees.
No. 20160873
Filed July 5, 2018
On Direct Appeal
Third District, Salt Lake
The Honorable Paige Petersen
No. 070913289
Attorneys:
L. Rich Humpherys, Karra J. Porter, Salt Lake City, for appellant
Ben T. Welch, Amber M. Mettler, Michael A. Gehret, Salt Lake City,
for appellee Fleetwood Services, Inc.
Nelson Abbot, Provo, Robert D. Moseley, Jr., Greenville, South
Carolina, for appellee Wilshire Insurance Company
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and ASSOCIATE PRESIDING JUDGE CHRISTIANSEN
joined.
Having recused herself, JUSTICE PETERSEN does not participate
herein; COURT OF APPEALS ASSOCIATE PRESIDING JUDGE MICHELE
M. CHRISTIANSEN sat.
JUSTICE HIMONAS, opinion of the Court:
ESPENSCHIED v. FLEETWOOD
Opinion of the Court
INTRODUCTION
¶1 Espenschied Transport Corp. has used Fleetwood Services,
Inc. to procure insurance since 1982. In 2003, Fleetwood obtained an
insurance policy from Wilshire Insurance Company meant to cover
all of Espenschied’s vehicles and trailers; the list of insured vehicles
was based on a list of equipment provided by Espenschied.
However, Fleetwood gave Wilshire an incorrect list not containing
all the equipment Espenschied had listed, resulting in Espenschied’s
believing that certain equipment was covered by the insurance
policy when, in reality, it was not. One of the trailers that
Espenschied believed to be covered, but that was not on the policy
schedule, was involved in a deadly accident, resulting in litigation.
Wilshire refused to defend Espenschied in the litigation, causing
Espenschied to incur attorney fees and a consent judgment;
Espenschied sued Fleetwood and Wilshire under various theories of
liability.
¶2 The district court concluded that Espenschied had suffered
no damages and granted summary judgment to Fleetwood.
Additionally, the district court granted summary judgment to
Wilshire, finding that the trailer was not on Wilshire’s insurance
policy and Fleetwood was not Wilshire’s agent. Additionally, the
district court ruled that Wilshire could have no vicarious liability
because Fleetwood had no liability. We affirm.
BACKGROUND
¶3 Espenschied was an interstate trucking company established
in 1982. 1 For a majority of its existence, Espenschied used Fleetwood
to procure insurance from a variety of insurers. In December 2003,
Fleetwood procured a commercial lines insurance policy from
Wilshire to cover Espenschied’s vehicles. The policy was a scheduled
vehicle policy, meaning that a vehicle must be listed on the policy to
be covered. Espenschied intended to have all of its vehicles covered
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1 On summary judgment, we view “the facts and all reasonable
inferences . . . in the light most favorable to the nonmoving party.”
Heslop v. Bear River Mut. Ins. Co., 2017 UT 5, ¶ 24, 390 P.3d 314
(citation omitted).
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Opinion of the Court
by the policy. Wilshire listed the insured vehicles on the policy based
on a list provided by Fleetwood.
¶4 On January 1, 2005, Espenschied sold or leased almost all of
its assets to DATS Trucking, Inc. The leased assets consisted of
ninety-three trailers. As part of the lease agreement, DATS agreed to
indemnify Espenschied from and against all claims, liability, or
expenses (including attorney fees) relating to the trailers.
Espenschied did not cancel its insurance on the trailers.
¶5 On January 30, 2005, one of the trailers Espenschied leased
to DATS killed Kimball Herrod in an accident. Mr. Herrod’s family
brought a wrongful death action against Espenschied and DATS.
Espenschied submitted a claim to Wilshire for coverage. Although
the trailer was on the list of equipment that needed to be insured
that Espenschied had provided to Fleetwood, the trailer was not
listed on the schedule for the policy Wilshire issued. After
determining that the trailer involved in the accident was not covered
by the policy, Wilshire denied the claim. Espenschied then made a
claim for coverage to Fleetwood for failing to procure insurance,
which Fleetwood also denied.
¶6 Espenschied defended itself in the wrongful death suit.
Ultimately, Espenschied entered into a settlement agreement with
the Herrods for $1.1 million; that settlement was reduced to a
judgment. By the time Espenschied entered into the settlement
agreement, it was no longer doing business, had formally dissolved,
and had no assets other than potential claims against third parties.
As part of the settlement agreement, Espenschied assigned the
Herrods any claim it had against DATS (except for indemnification
for attorney fees) and agreed to pursue claims against Fleetwood and
Wilshire. Espenschied was not required to pay any attorney fees up
front for its lawsuit against Fleetwood and Wilshire. Instead, any
recovery from claims against Fleetwood and Wilshire would first be
used to pay the attorney fees and costs, then the settlement amount,
and any remainder would go to Espenschied. In return, the Herrods
agreed that they would not pursue claims against the principles of
Espenschied and would withhold collection against Espenschied’s
assets until the claims against Fleetwood and Wilshire were fully
resolved. Additionally, Espenschied agreed to “fully pursue and
prosecute all claims it may have” against Fleetwood or Wilshire and
to hire the Herrods’ attorney from the wrongful death suit to pursue
those claims.
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ESPENSCHIED v. FLEETWOOD
Opinion of the Court
¶7 In defending the wrongful death suit, Espenschied incurred
approximately $93,500 in attorney fees and costs. Based on the
indemnity agreement, DATS paid Espenschied $90,000 for the
attorney fees. Espenschied has not paid any money toward the
settlement agreement. Additionally, at oral argument in this matter,
Espenschied’s attorney conceded that the Herrods will never be able
to collect against Espenschied unless Espenschied recovers in this
case because Espenschied is a defunct corporation with no assets.
¶8 Fleetwood and Wilshire moved for summary judgment.
The district court concluded that Fleetwood was, “at most, . . . a
contract breacher [and] . . . . would only be obligated to pay what
[Espenschied] actually had to pay. . . . [which was] zero dollars.”
Because the district court determined that Espenschied had suffered
no actual damages, it granted Fleetwood’s motion for summary
judgment.
¶9 The district court also granted Wilshire’s motion for
summary judgment. Relevant to this appeal, the district court
concluded that Fleetwood was not acting as Wilshire’s agent, and
therefore Wilshire would not be liable for Fleetwood failing to
procure insurance for the trailer. Alternatively, the district court
concluded that because Fleetwood had no liability, Wilshire could
have no vicarious liability for Fleetwood.
¶10 Espenschied appealed these decisions. We have jurisdiction
pursuant to Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶11 A party is entitled to “summary judgment if the moving
party shows that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.”
UTAH R. CIV. P. 56(a). “We review the summary judgment decision de
novo.” Salo v. Tyler, 2018 UT 7, ¶ 19, 417 P.3d 581 (citation omitted).
ANALYSIS
¶12 Fleetwood and Wilshire separately moved the district court
for summary judgment, and the district court granted both motions.
The district court granted Fleetwood’s motion for summary
judgment on the grounds that Espenschied was unable to raise a
dispute of material fact regarding damages. We agree with the
district court and affirm.
¶13 The district court granted summary judgment to Wilshire on
the four claims against Wilshire and on the theory of vicarious
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liability. On appeal, Espenschied only challenges the vicarious
liability determination, which was based on two alternative grounds:
1) there was no material dispute of fact that Fleetwood was
Wilshire’s agent and 2) Fleetwood had no liability, and therefore
Wilshire could have no vicarious liability. We conclude that
Espenschied failed to adequately attack the district court’s decision
on the vicarious liability ground and therefore affirm the district
court.
I. SUMMARY JUDGMENT FOR FLEETWOOD IS APPROPRIATE
BECAUSE ESPENSCHIED DID NOT ASSERT ANY DISPUTED
MATERIAL FACTS TO SUPPORT COMPENSABLE HARM
¶14 Espenschied brought claims against Fleetwood alleging both
breach of contract and “breach of fiduciary and other tort duties.”
These claims stem from Fleetwood’s failure to procure insurance on
the trailer involved in the accident. An insurance agent may be
obligated to procure insurance by contract or by duty. Harris v.
Albrecht, 2004 UT 13, ¶ 30, 86 P.3d 728. An insurance agent who fails
to procure insurance may be liable for breach of contract or
negligence. Id.
¶15 In order to succeed on its claims, Espenschied must prove
that it suffered damages. See Am. W. Bank Members, L.C. v. State, 2014
UT 49, ¶ 15, 342 P.3d 224 (“The elements of a prima facie case for
breach of contract are (1) a contract, (2) performance by the party
seeking recovery, (3) breach of the contract by the other party, and
(4) damages.” (emphasis added) (citation omitted)); B.R. ex rel. Jeffs v.
West, 2012 UT 11, ¶ 5 n.2, 275 P.3d 228 (“To assert a successful
negligence claim, a plaintiff must establish that (1) defendant owed
plaintiff a duty of care, (2) defendant breached that duty, and that
(3) the breach was the proximate cause of (4) plaintiff’s injuries or
damages.” (emphasis added) (citation omitted)). 2 The district court
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2 Although Espenschied brought a claim alleging both fiduciary
and other tort duties, Espenschied presented no argument to us that
the duty to procure insurance is in fact a fiduciary duty. We need not
consider that issue because damages are an essential element of a
claim for breach of fiduciary duty as well. See Gables at Sterling Vill.
Homeowners Ass’n, Inc. v. Castlewood-Sterling Vill. I, LLC, 2018 UT 4,
¶ 52, 417 P.3d 95.
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ESPENSCHIED v. FLEETWOOD
Opinion of the Court
granted summary judgment on all of Espenschied’s claims against
Fleetwood because Espenschied could not “establish that it has
suffered damages.”
¶16 Espenschied makes two main arguments that it has suffered
damages: 1) it incurred attorney fees and costs from the wrongful
death suit and 2) the settlement agreement and judgment from the
wrongful death suit caused compensable harm. 3 Although we agree
with Espenschied’s first point, and conclude that Espenschied had
raised a dispute of material fact in that it had suffered $3,400 in
attorney fees and costs, we disagree with Espenschied’s second
contention. Because Espenschied stated at oral arguments that it
would be uninterested in pursuing this case for $3,400, we affirm the
district court.
A. Espenschied’s Attorney Fees and Costs for the Underlying Action
Constitute Actual Damages to the Extent that Espenschied Did Not
Receive Indemnification from DATS
¶17 When Fleetwood and Wilshire refused to defend
Espenschied in the wrongful death suit, Espenschied had to hire an
attorney at its own expense. Espenschied ultimately incurred around
$93,500 in attorney fees and costs for the wrongful death suit. Based
on the indemnification agreement Espenschied had with DATS,
DATS indemnified Espenschied for $90,000 in attorney fees and
costs.
¶18 Espenschied cites Wilson v. IHC Hospitals, Inc., 2012 UT 43,
289 P.3d 369, to support its proposition that the indemnification from
DATS “does not reduce or eliminate Fleetwood’s liability for costs
and attorney fees that Espenschied incurred in defending the
[wrongful death suit].” Although Espenschied never mentions the
collateral source rule, it seems that Espenschied may be attempting
to invoke this rule through this one citation in its brief.
¶19 As Fleetwood points out, any argument about the collateral
source rule is indeed inadequately briefed. “Appellants have the
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3In its brief, Fleetwood argued that Espenschied’s claim was
moot because the consent judgment had lapsed. However,
Espenschied argued that the consent judgment had been renewed,
and Fleetwood conceded at oral arguments that the claim was not
moot.
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burden to clearly set forth the issues . . . and to provide reasoned
argument and [valid] legal authority.” See ASC Utah, Inc. v. Wolf
Mountain Resorts, L.C., 2013 UT 24, ¶ 16, 309 P.3d 201 (citation
omitted). “[I]t is not the size of an argument that matters. Some
parties adequately brief an argument in a well-crafted paragraph.
Others manage to inadequately brief an argument in fifty pages.”
2010-1 RADC/CADC Venture, LLC v. Dos Lagos, LLC, 2017 UT 29,
¶ 30, 408 P.3d 313. Yet, “[a]s we have repeatedly noted, we are not ‘a
depository in which [a party] may dump the burden of argument
and research.’” Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT
23, ¶ 46, 70 P.3d 904 (second alteration in original) (citation omitted).
“Arguments, like gardens, take work, and a party who hopes to
prevail on appeal should be willing to dig in the dirt and not expect
that opposing counsel or the court will do that work for them.” A.S.
v. R.S., 2017 UT 77, ¶ 16, 416 P.3d 465.
¶20 Because we do not consider the collateral source rule,
Espenschied’s damages of the attorney fees and costs from the
wrongful death suit must be offset by the $90,000 indemnification
from DATS. This would leave Espenschied with approximately
$3,400 in damages from the attorney fees. Ordinarily, this would
cause us to reverse summary judgment as Espenschied has raised a
dispute of material fact to show that it has suffered compensable
harm. However, at oral arguments in this matter, Espenschied’s
counsel stated that Espenschied would be uninterested in pursuing
the case against Fleetwood for $3,400. Because, as we discuss below,
Espenschied has not raised another dispute of material fact that
would show any other compensable harm, we affirm the district
court’s grant of summary judgment to Fleetwood.
B. The Settlement Agreement and Consent Judgment Do Not Constitute
Actual Damages in This Case
¶21 Espenschied contends that the settlement agreement with
the Herrods and the corresponding consent judgment constitute
actual harm in this case even though Espenschied has no assets and
has never had to pay any money to the Herrods. In support of its
position, Espenschied makes two arguments. First, Espenschied
argues that the policy considerations we announced in Ammerman v.
Farmers Insurance Exchange, 450 P.2d 460 (Utah 1969) (Ammerman II),
should be extended to insurance agents and brokers. Second,
Espenschied claims that it suffered damages because it lost part of its
claims against Fleetwood and Wilshire as part of the settlement
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ESPENSCHIED v. FLEETWOOD
Opinion of the Court
agreement. We disagree and affirm the district court’s grant of
summary judgment.
¶22 By the time Espenschied entered into the settlement
agreement with the Herrods, Espenschied was a defunct corporation
with no assets except for potential claims against third parties.
Espenschied has never paid any money to the Herrods. And, at oral
arguments, Espenschied’s counsel conceded that he could not
hypothesize a scenario where the Herrods would ever be able to
collect against Espenschied. However, Espenschied argues that this
should not matter because the policy considerations in Ammerman II
should extend to this case.
¶23 In Ammerman II, we held that collection from an insured by
a “judgment creditor was not a prerequisite to a cause of action
against the insurer for the excess judgment.” 450 P.2d at 462. We
found three sound reasons to justify the adoption of this view: 1) it
“prevents an insurer from benefiting from the impecuniousness of
an insured who has a meritorious claim;” 2) it “negates the
possibility that the insurer would be . . . less responsive to its trust
duties where the insured is [un]able to pay the excess judgment”
because “at worst, it would only be liable for the amount specified
by the policy,” which would “impair the usefulness of insurance for
the poor [person];” and 3) it “recognizes that the fact of entry of the
judgment itself against the insured constitutes a real damage to him
because of the potential harm to his credit rating.” Id. (first alteration
in original) (citations omitted) (internal quotation marks omitted).
¶24 These policy considerations make sense in the context of the
cause of action at issue: breach of the insurer’s fiduciary duty to
defend the insured in the third-party context. See Ammerman v.
Farmers Ins. Exch., 430 P.2d 576, 578 (Utah 1967) (Ammerman I). In
Ammerman I, we recognized that an insurer has a fiduciary duty to
“act in good faith and be as zealous in protecting the interests of its
insured as it would in looking after its own.” Id. at 579 (citation
omitted).
¶25 Espenschied argues that an insurance agent or broker
should be treated like an insured. But we have declined to extend an
insurer’s fiduciary duty to first-party insurance claims. See Beck v.
Farmers Ins. Exch., 701 P.2d 795, 800 (Utah 1985). And Espenschied
has not convinced us that the policy considerations behind recovery
for breach of an insurer’s fiduciary duty to defend should extend to a
breach of contract or duty to procure insurance.
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¶26 These policy considerations do not all translate to insurance
agents and brokers. A contract breacher is required “to compensate
the nonbreaching party for actual injury sustained.” 4 Trans-Western
Petroleum, Inc. v. U.S. Gypsum Co., 2016 UT 27, ¶ 15, 379 P.3d 1200
(citation omitted) (internal quotation marks omitted). Although this
may mean that a contract breacher benefits from the
impecuniousness of the nonbreaching party, the other methods of
monetizing a judgment, see infra ¶ 29, allay any of these concerns.
And if the nonbreaching party has not sustained any actual injury
because they have not and will never pay the judgment, there should
be no contractual liability. See TruGreen Cos., L.L.C. v. Mower Bros.,
2008 UT 81, ¶ 19, 199 P.3d 929 (recognizing the value of efficient
breach).
¶27 Moreover, an insurer’s trust duties become most relevant
when an insured has a claim under the insurance because “a conflict
of interests may exist.” Ammerman I, 430 P.2d at 578. Our holding in
Ammerman II removed the insurer’s perverse incentive to breach its
trust duties at the time a claim is filed because there would
otherwise be no financial downside to the insurer who “would only
be liable for the amount specified by the policy” even if it breached
its duties and there would be a potential financial upside. 450 P.2d at
462. An insurance agent or broker does not have the same perverse
incentive to breach its contract or duty to procure insurance. The
agent’s breach would occur when there is significant financial
downside (a claim for breach of contract or negligence) with little to
no financial upside (the agent must only find an insurer willing to
cover the risks).
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4 In its ruling, the district court found that “Fleetwood’s status is,
at most, that of a contract breacher.” We recognize that Espenschied
may have a claim against Fleetwood for either breach of contract or
for negligence. However, Espenschied has not challenged the district
court’s conclusion or argued to us that the damages available for
breach of a duty to procure insurance should be different than the
damages available for breach of a contract to procure insurance. We
therefore do not opine in this case whether an unexecuted judgment
that cannot be recovered under can be considered damages for a
breach of a duty to procure insurance.
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Opinion of the Court
¶28 However, entry of the judgment itself may constitute real
harm for which an insurance agent or broker may be held liable. See
Steele v. Hartford Fire Ins. Co., 788 F.2d 441, 450 (7th Cir. 1986)
(“[E]ven an unexecuted judgment can cause an injury, present or
future, that can be monetized.”). But this real damage does not exist
in a vacuum, and we will not presume it exists. Instead, it is up to
the plaintiff to establish that it has suffered harm that can be
monetized, such as harm to its credit rating or reputation, loss of
business opportunities, or even being forced into bankruptcy.
¶29 An insurance agent or broker is not an insurer who has
breached its fiduciary duty to defend. And we do not believe that the
policy considerations that apply to an insurer’s breach of its duty
also apply wholesale to an insurance agent or broker. Therefore, we
refuse to extend Ammerman II outside of the context of an insurer’s
breach of its fiduciary duty to defend. However, we do not believe
that it is impossible to monetize an unexecuted judgment, and if
Espenschied is able to show a dispute of material fact of such harm,
summary judgment would be inappropriate.
¶30 Because Espenschied has never and will never pay money to
the Herrods, the only theory of harm Espenschied puts before us
(aside from the attorney fees and costs from the wrongful death suit,
discussed above) is that it lost part of its claims against Fleetwood
and Wilshire because it would be required to use any judgment
against Fleetwood or Wilshire to pay the Herrods.
¶31 Espenschied has failed to convince us that its partial loss of
claims against Fleetwood or Wilshire would constitute actual injury.
To this day, Espenschied has not paid any money to the Herrods. If
Espenschied does not recover against Fleetwood or Wilshire based
on the settlement agreement and consent judgment, Espenschied
will not suffer any actual injury because it will never have any assets
to pay the Herrods. However, if Espenschied does recover against
Fleetwood or Wilshire based on the settlement agreement and
consent judgment, Espenschied would then be obligated to pay the
money to the Herrods and would suffer an actual injury. We decline
to conclude that a party has suffered an actual injury if their injury
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Opinion of the Court
would only exist if they were successful in the lawsuit to recover for
that injury. 5
¶32 Because Espenschied has failed to show a material dispute
of fact of damages, other than the potential $3,400 in attorney fees
and costs it stipulated was not worth pursuing alone, we affirm
summary judgment for Fleetwood.
II. WILSHIRE WAS ENTITLED TO SUMMARY JUDGMENT
BECAUSE ESPENSCHIED HAS NOT SHOWN IT CAN RECOVER
UNDER VICARIOUS LIABILITY
¶33 The district court granted summary judgment for Wilshire
on Espenschied’s four causes of action and separately on the theory
of vicarious liability. On appeal, Espenschied only attacks the district
court’s decision to grant summary judgment to Wilshire based on
vicarious liability. The district court granted summary judgment on
this theory for two alternative reasons: 1) there was no dispute of
material facts that could show Fleetwood was Wilshire’s agent and
2) because Fleetwood has no liability, Wilshire cannot have vicarious
liability.
¶34 In its brief, Espenschied recognizes that these were
alternative grounds for the district court’s decision. Before us,
Espenchied makes three arguments for why the district court erred:
1) there was a dispute of material fact of agency, 2) Wilshire should
be held vicariously liable for Fleetwood’s breach of its duty to
procure insurance, and 3) Wilshire is bound by Espenschied’s
reasonable reliance on Fleetwood’s representations that the policy
would cover the trailer. 6
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5 Importantly, we affirm the district court’s grant of summary
judgment to Wilshire. See infra ¶ 37. Therefore, Espenschied’s
potential loss of some recovery under its claim against Wilshire
creates no harm for which Fleetwood must compensate Espenschied.
6 In its statement of issues presented for review, Espenschied
included the following issue: “Did the trial court err by ruling as a
matter of law that there could only be coverage under the Wilshire
insurance policy if the trailer in question was specifically named in
the policy?” Espenschied provided no other briefing on this issue so
we do not consider it. See supra ¶ 19 (refusing to consider
inadequately briefed argument).
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Opinion of the Court
¶35 We do not need to reach whether there was a dispute of
material fact of agency because we find Espenschied’s two other
arguments insufficient. As set forth above, see supra ¶ 32, we affirm
the district court’s grant of summary judgment to Fleetwood.
Espenschied has not provided any argument that Wilshire should be
vicariously liable for Fleetwood’s breach of contract or duty to
procure insurance if Fleetwood itself is not liable. Nor has
Espenschied argued that a different damages analysis should apply
to Wilshire than the one that applies to Fleetwood. Therefore, we
conclude that Espenschied cannot be successful under a theory of
vicarious liability.
¶36 Espenschied is similarly unable to prevail on its reasonable
reliance argument. “An insurance company may be vicariously liable
for the tortious conduct of its agent, or it may directly incur tort
liability by imputation of the agent’s knowledge.” Allen v. Prudential
Prop. & Cas. Ins. Co., 839 P.2d 798, 806 n.16 (Utah 1992) (citation
omitted). It is unclear whether Espenschied’s argument sounds in
vicarious liability or direct liability. To the extent that Espenschied’s
reasonable reliance argument is grounded in vicarious liability, it
must fail because Espenschied loses on the vicarious liability ground.
See supra ¶ 35. If, instead, the reasonable reliance argument sounds
in direct liability, it must fail because Espenschied has not attacked
this ground. See Kendall v. Olsen, 2017 UT 38, ¶ 9, ___P.3d___
(holding that a party’s failure to challenge an independent basis for
dismissal “leaves us with no basis for reversal and thus no choice
except to affirm”). A principal’s vicarious liability for one of its
agent’s acts and a principal’s direct liability for its own acts, which
were committed with the agent’s imputed knowledge, “are separate
legal questions.” Wardley Better Homes & Gardens v. Cannon, 2002 UT
99, ¶ 19, 61 P.3d 1009. Espenschied has not argued that the district
court’s independent determination that Wilshire could not be held
vicariously liable for Fleetwood’s actions was erroneous because it
only considered one of the two routes of liability agency creates.
Espenschied’s failure to attack this independent ground “leaves us
with . . . no choice except to affirm.” Kendall, 2017 UT 38, ¶ 9.
¶37 We therefore affirm the district court’s grant of summary
judgment to Wilshire.
CONCLUSION
¶38 We affirm the district court’s grant of summary judgment to
Fleetwood because Espenschied was unable to raise a dispute of
material fact of damages. Similarly, we affirm the district court’s
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grant of summary judgment to Wilshire because Espenschied failed
to argue why Wilshire should have vicarious liability when
Fleetwood has no liability.
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