United States District Court, D. Nevada
JUDITH T. SKACH, Plaintiff,
AAA NORTHERN CALIFORNIA, NEVADA & UTAH INSURANCE EXCHANGE, Defendant.
ROBERT C. JONES, District Judge.
This is a first-party insurance action arising out of an automobile accident. Pending before the Court are four motions for summary judgment and a motion for an adverse inference instruction. The Court previously entered an order denying Motions Nos. 50, 53, and 54, granting Motion No. 52 in part, and denying Motion No. 51. Defendant has asked the Court to reconsider. The Court hereby reconsiders in part. The entry of the order was in error as to Motions Nos. 50, 53, and 54. That is, a proposed order drafted by a law clerk was inadvertently entered. The Court, however, had rejected that proposed order and approved the rewritten proposed order embodied herein. The present motion to reconsider is therefore granted under Rule 60(a).
I. FACTS AND PROCEDURAL HISTORY
On or about September 16, 2010, Plaintiff Judith Skach was involved in a car accident caused by a non-party who was found to be at fault. (Am. Compl. ¶ 5, Aug. 29, 2012, ECF No. 1, at 6). Plaintiff sustained permanent injuries; her medical expenses exceed $27, 000, and treatment is ongoing. ( Id. ). The non-party tortfeasor's insurance company tendered the policy limits of $50, 000. ( Id. ). Plaintiff, believing that her eventual expenses would exceed $50, 000, tendered a claim for an unspecified amount of Underinsured Motorist ("UIM") benefits to Defendant AAA Northern California, Nevada & Utah Insurance Exchange ("AAA") under a policy she had with AAA. ( See id. ¶¶ 4-5). Defendant rejected the claim. ( Id. ¶ 7).
Plaintiff sued Defendant in state court on three causes of action: (1) breach of contract; (2) insurance bad faith; and (3) violations of Chapter 686A of the Nevada Revised Statutes ("NRS") and Chapter 686A of the Nevada Administrative Code ("NAC"). Defendant removed the Amended Complaint ("AC"). The Court denied summary judgment to Defendant as to the bad faith claim but dismissed the claim, with leave to amend. The Court noted that under Nevada law, Plaintiff would have to prove fault by the tortfeasor in order to recover upon her breach of bad faith claims based upon her UIM policy. Upon amendment, Defendant moved to dismiss because Plaintiff had not included any claim for declaratory judgment as to the issue of the tortfeasor's fault. The Court refused to dismiss but noted that Plaintiff would indeed have to prove the tortfeasor's fault as part of the breach and bad faith claims. Defendant has now filed for motions for summary judgment and a motion for an adverse inference instruction.
II. LEGAL STANDARDS
A. Summary Judgment
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 claims." 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 of proving 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 demonstrating 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 Celotex Corp., 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. P. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by 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 nonmovant 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.
B. Adverse Inference Instructions
"If a party or a party"s officer, director, or managing agent-or a witness designated under Rule 30(b)(6) or 31(a)(4)-fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is ...