United States District Court, D. Nevada
JAMES C. MAHAN, Chief District Judge.
Presently before the court is defendant State Farm Fire and Casualty Company's (hereinafter "defendant") motion to dismiss claims two, four, and five of plaintiff Angela Richardson's (hereinafter "plaintiff") complaint. (Doc. # 4). The plaintiff filed an opposition in response, (doc. # 9), and the defendant replied, (doc. # 12).
The case arises out of a car accident in which the plaintiff was allegedly rear-ended and suffered injuries. The injuries were in excess of the tortfeasor's insurance coverage and the plaintiff filed a claim with her insurance company, the defendant, to recover under her under-insured motorist (UIM) coverage. The plaintiff alleges the defendant improperly withheld UIM benefits and thereby breached duties created by common law, the Nevada Revised Statutes (NRS), and the Nevada Administrative Code (NAC). Specifically, the plaintiff puts forward claims of: (1) breach of contract; (2) breach of "special and fiduciary-like" duties; (3) breach of the covenant of good faith and fair dealing; (4) negligence; and (5) negligence per se.
II. Legal Standard
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
"Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citation omitted).
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 1949.
Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949.
Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged - but not shown - that the pleader is entitled to relief." Id. (internal quotations omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.
The Ninth Circuit addressed post- Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated, "First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Id.
A. Breach of "fiduciary-like duty"
Nevada law does not recognize a claim for breach of fiduciary duty in the context of insurance. Powers v. United Services Automobile Ass'n, 115 Nev. 38, 42 (1999) (concluding duty insurers owe to policy holders is "akin to a fiduciary relationship... [but] does not equate to creation of new cause of action"). The Nevada Supreme Court has unequivocally stated that although a special, "fiduciary-like" duty exists between the insurer and the insured, that it is part of the duty of good faith and fair dealing. Powers v. United Services Automobile Ass'n, 114 Nev. 690 (1998) ("We are not adopting a new cause of action based on an insurance company's failure to put its insured's interests above its own; we are merely recognizing that breach of the fiduciary nature of the insurer-insured relationship is part of the duty of good faith and fair dealing."). Therefore the ...