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Sierzega v. Country Preferred Ins. Co.

United States District Court, D. Nevada

April 25, 2014

CAROL SIERZEGA, Plaintiff(s),
v.
COUNTRY PREFERRED INS. CO., et al., Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is defendant Country Preferred Insurance Company's motion for summary judgment. (Doc. #21). Plaintiff Carol Sierzega filed a response in opposition (doc. #24), and defendant filed a reply (doc. #29).

Also before the court are plaintiff's motions for partial summary judgment. (Docs. ##25 & 32). Defendant filed responses in opposition (docs. ##30 & 35), and plaintiff filed replies (docs. ## 31 & 36).

I. Background

The instant action centers upon an insurance dispute between plaintiff Carol Sierzega and her automotive insurer, defendant Country Preferred Insurance Company.

On September 1, 2009, plaintiff was the victim of a T-bone car crash occurring at a fast food drive through in Las Vegas, Nevada. The driver of the other car was Shirleen Okelberry, who was insured by Allstate Insurance Company. At that time, plaintiff held a policy with defendant providing up to $50, 000.00 of underinsured motorist coverage. Immediately after the accident, plaintiff stated that she suffered only a bruised left elbow and did not intend to seek medical treatment. (Doc. #21-2). On September 9, 2009, plaintiff reported to defendant that she was experiencing neck and back spasms, and had been referred to a chiropractor. (Doc. #21-4).

An inter-company arbitration between defendant and Allstate resulted in a finding that Ms. Okelberry was at fault for the accident. ( See doc. #21-12). On March 5, 2010, plaintiff's counsel faxed a letter to defendant which stated, "My client is willing to settle for the policy limits provided that you have the same in my office within two weeks together with proof that those are the only policy limits available to provide compensation to my client for this incident." (Doc. #21-13). Attached to the letter was an authorization for disclosure of protected health information as well as a list of health providers that were treating plaintiff's alleged injuries. Id.

On March 11, 2010, defendant acknowledged receipt of the letter and told plaintiff's counsel that it did not have enough information with which to make a settlement offer. (Doc. #21-16). On May 13, 2010, defendant sent plaintiff's counsel a letter stating that defendant had received medical records from only two of plaintiff's medical providers. (Doc. #21-20). The letter also conveyed that defendant could not make a settlement offer unless it received information as to Ms. Okelberry's policy limits with Allstate. Id.

On September 29, 2010, plaintiff provided Ms. Okelberry's Allstate policy information to defendant, including a statement that the policy limited bodily injury liability to $50, 000 per person. (Doc. #21-23). Defendant responded on October 4, 2010, that it still needed documentation conveying the amount of plaintiff's medical expenses. (Doc. #21-24). Defendant's records indicate that it had confirmed only $22, 000 in medical costs at that time. Id. On October 15, 2010, defendant made an offer of $10, 000 to settle the disputed portion of the claim and again requested that plaintiff's counsel forward all medical records. Id. Plaintiff declined this offer, and countered with an offer to settle the claim for the policy limit. (Doc. #21-27).

On August 25, 2011, while still undergoing treatment for her alleged injuries, plaintiff filed suit against Ms. Okelberry in Nevada state court. (Doc. #24-1 p. 78). Defendant was not joined as a party to this suit. While the state court action was proceeding, defendant continued to request that plaintiff and her healthcare providers send documentation indicating the degree to which plaintiff's medical costs exceeded the limits of Ms. Okelberry's Allstate policy. (Doc. #21-28). On September 7, 2012, the state court issued a judgment in plaintiff's favor against Ms. Okelberry in the amount of $4, 040, 555.39. (Doc. #24-1 p. 3).

On September 18, 2012, defendant sent a final letter to plaintiff indicating that, after numerous requests, it still had not received billing records from five of plaintiff's medical providers. (Doc. #21-29). At that time, defendant stated that it would proceed in analyzing the claim without the missing records. Id. On September 27, 2012, defendant agreed to tender the $50, 000 policy limit to plaintiff. (Doc. #21-30) Defendant issued a check to plaintiff in the amount of $50, 000 on October 4, 2012. (Doc. #21-31).

The instant case was filed in Nevada state court on April 25, 2013. Defendant removed the case to this court on July 18, 2013, citing this court's diversity jurisdiction pursuant to 28 U.S.C. section 1332. Defendant now asserts that plaintiff has failed to provide sufficient evidentiary support for the claims in her complaint, and argues that it is entitled to summary judgment in this matter.

II. Legal Standard

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is "to isolate ...


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