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McVay v. Allied World Assurance Co., Inc.

United States District Court, D. Nevada

April 18, 2014

BECKY MCVAY, Plaintiff,
v.
ALLIED WORLD ASSURANCE COMPANY, INC., and YORK RISK SERVICES GROUP, INC., et al., Defendants

For Becky McVay, Plaintiff: Nicole M. Harvey, Harvey Law Firm, Reno, NV.

For York Risk Services Group, Inc., York Insurance Services, Group, Inc., Defendants: Wes Williams, LEAD ATTORNEY, Law Offices of Wes Williams Jr., Schurz, NV.

For Allied World Assurance Company, Inc., Defendant: Brandon D. Almond, John W. Duchelle, LEAD ATTORNEYS, Troutman Sanders LLP, Washington, DC; James W. Bradshaw, LEAD ATTORNEY, Kerry S. Doyle, McDonald Carano Wilson, Reno, NV.

OPINION

Page 1203

Howard D. McKibben, UNITED STATES DISTRICT JUDGE.

ORDER

Before the court are the defendants' motions to dismiss for failure to state a claim (#15, #22). Plaintiff has opposed the motions (#16, #30, #33), and defendants have replied (#19, #35).

Facts

In August 2009, plaintiff slipped and fell in a gas station convenience store owned by the Fallon Tribal Development Corporation (" FTDC" ), which is an entity of the Fallon Paiute-Shoshone Indian Tribe (" Tribe" ).[1]

The Tribe is covered by an insurance policy issued by defendant Allied and administered by defendant York. The " Sovereign Nation Commercial Insurance Policy" covers many things, including " all sums for which the 'Insured' shall be legally obligated to pay by reason of liability imposed upon the 'Insured' by law . . . for damages . . . and expenses . . . on account of 'personal injuries' and/or 'property damage' arising out of any 'occurrence' happening during the period of this policy." (Allied Mot. Dismiss Ex. A (Policy at 9)).

Plaintiff sent defendants a formal written demand on November 10, 2010, which was verbally denied on the grounds of the

Page 1204

insured's sovereign immunity. On June 22, 2011, defendants denied the claim in writing on the grounds that adequate warning existed and no other accidents had occurred on the premises.

Because she believes she cannot recover from the Tribe, plaintiff now seeks in this litigation to recover from its insurer Allied.

Standard

In considering a motion to dismiss under Rule 12(b)(6), the court must accept as true all material allegations in the complaint as well as all reasonable inferences that may be drawn from such allegations. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir. 2000). The allegations of the complaint also must be construed in the light most favorable to the nonmoving party. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). However, legal conclusions are not entitled to the presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

" Under the notice pleading standard of the Federal Rules, plaintiffs are only required to give a 'short and plain statement' of their claims in the complaint." Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009) (quoting Diaz v. Int'l Longshore & Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)). While this rule " does not require 'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Thus, a complaint " must contain sufficient factual matter . . . to state a claim to relief that is plausible on its face." Id. " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The plausibility standard demands " more than a sheer possibility that a defendant has acted unlawfully." Id. A pleading is ...


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