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Donald Willis v. State Farm Mutual Automobile Insurance Co


April 26, 2013


The opinion of the court was delivered by: Robert C. Jones United States District Judge


This case arises out of an automobile insurance company's alleged failure to pay its an underinsured motorist ("UIM") provision. Pending before the Court is a Motion for Summary Judgment (ECF No. 12). A response was due March 18, 2013, but Plaintiff has not responded as of April 11, 2013. Because this constitutes consent to granting the motion, Local R. 7-2(d), and for the reasons given herein, the Court grants the motion.


On September 12, 2011, a third-party caused an automobile collision with Plaintiff Donald Willis, causing Plaintiff serious and potentially disabling injuries. (Compl. ¶¶ 6--7, June 5, 2012, ECF No. 1, at 6). The third-party paid his insurance policy limits to Plaintiff, but because Plaintiff's damages exceed that amount, Plaintiff demanded that Defendant State Farm Mutual Automobile Insurance Co. ("State Farm") tender Plaintiff's own policy limits under a UIM provision of a policy Defendant had issued to Plaintiff. (See id. ¶¶ 10--12). Defendant Id. ¶ 13).

Plaintiff sued Defendant in state court for: (1) breach of contract; (2) insurance bad faith;

(3) unjust enrichment; and (4) violations of Nevada Revised Statutes ("NRS") section 686A.310(1)(b)--(g). Defendant removed and has now moved for summary judgment as against all claims except the claim for breach of contract. Plaintiff has not timely responded.


A court must grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported Celotex Corp. v. Catrett,477 U.S. 317, 323--24 (1986). In determining summary judgment, a court uses a burden-shifting scheme:

When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.

C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See , 477 U.S. at 323--24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159--60 (1970).

If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment

relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.

At the summary judgment stage, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249--50.


First, the Court grants summary judgment to Defendant as a matter of law as against the unjust enrichment act, because no such claim can lie where a contract governs the relationship between the parties, as here. See Leasepartners Corp. v. Robert L. Brooks Trust, 942 P.2d 182, 187 (Nev. 1997).

Second, as Defendant notes, no insurance bad faith claim lies where the insurer has a reasonable basis for challenging a claim or the extent of a claim, see Allstate Ins. Co. v. Miller, 212 P.3d 318, 324 (Nev. 2009), such as where the merits of a claim are "fairly debatable" in fact Bellville v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468, 481 (Iowa 2005). In Nevada, fair debatability is a question of fact. See Albert H. Wohlers & Co. v. Bartgis, 969 P.2d 949, 956--57 (Nev. 1998) (citing Sparks v. Republic Nat'l Life Ins. Co., 647 P.2d 1127, 1137 (Ariz. 1982)). Therefore, the Court must not determine the issue under its own judgment as a matter of law, but must apply the summary judgment standards to the issue as a factual question. Because Plaintiff has not responded, Defendant will be entitled to summary judgment if it has met its initial burden, i.e., if it has presented evidence to negate an essential element of the bad faith claim, or if it has demonstrated that Plaintiff has failed to make a showing sufficient to establish an essential element. Defendant is entitled to summary judgment, because it has pointed out that Plaintiff has not made any showing that could support any element of the claim. Plaintiff has not showing that could negate any reasonable basis for Defendant's rejection of the claim. Moreover, the evidence Defendant adduces documenting Plaintiff's pre-existing injuries likely from previous automobile accident. Plaintiff has produced no evidence indicating that Defendant's rejection of his claim because of a dispute over causation of the claimed injuries was unreasonable. The Court grants summary judgment to Defendant on the bad faith claim.

Third, the Court also grants summary judgment on the statutory claims. Defendant has provided evidence indicating that it promptly communicated with, investigated, determined, and attempted to settle the disputed claims according to a reasonable policy and in a fair manner. Plaintiff has not responded.

The Court also grants the motion insofar as it asks to strike the claim for punitive damages, because Plaintiff has provided no evidence of oppression, fraud, or malice.


IT IS HEREBY ORDERED that the Motion for Summary Judgment (ECF No. 12) is IT IS SO ORDERED.

Dated this 11th day this 26th day of April, 2013. of April, 2013.


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