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Sloan v. Country Preferred Insurance Co.

United States District Court, D. Nevada

March 5, 2015

LUCIA SLOAN, Plaintiff,
v.
COUNTRY PREFERRED INSURANCE COMPANY, Defendant.

ORDER DENYING MOTION FOR ATTORNEYS' FEES, COSTS, PREJUDGMENT INTEREST, AND RESOLVING PARTIES' COMPETING BILLS OF COSTS (Dkt. #47, #48, #49, #52, #54)

ANDREW P. GORDON, District Judge.

Plaintiff Lucia Sloan moves for attorneys' fees, costs, and prejudgment interest. Sloan contends that she made an offer of judgment pursuant to Nevada Revised Statutes § 17.115, that defendant Country Preferred Insurance Company did not accept that offer, and that Country later paid more than the offer of judgment when it tendered the insurance policy limits. She therefore argues she is entitled to attorneys' fees, costs, and prejudgment interest from the date of the offer of judgment. Sloan also argues she is entitled to costs pursuant to Nevada Revised Statutes § 18.020 because she is the prevailing party.

Country responds that Sloan is not entitled to fees, costs, or prejudgment interest under § 17.115 because she did not obtain a judgment in her favor. Instead, Country contends it voluntarily tendered policy limits and then prevailed at summary judgment. Country also argues Sloan is not entitled to costs under § 18.020 because she has cited no legal authority for the proposition that Nevada law governs costs in this action. Country further contends Sloan is not a prevailing party because she lost on summary judgment on all of her claims. According to Country, its voluntary payment of the policy limits does not make Sloan a prevailing party in this litigation. Additionally, each party filed a bill of costs to which the other objects.

The parties are familiar with the facts of this case, which I set forth in a prior order. (Dkt. #45.) I will not repeat them here except where necessary.

I. Nev. Rev. Stat. § 17.115

Nev. Rev. Stat. § 17.115 may apply to a state law claim litigated in federal court. MRO Commc'ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1283 (9th Cir. 1999). Pursuant to § 17.115(1), "any party may serve upon one or more parties a written offer to allow judgment to be taken in accordance with the terms and conditions of the offer of judgment." If the party who rejects the offer of judgment "fails to obtain a more favorable judgment, " the court must order that party to pay costs and may order reasonable expert witness costs, prejudgment interest from the date of the offer to the date of the judgment, and reasonable attorney's fees from the date of the offer to the date of the judgment. Nev. Rev. Stat. § 17.115(4).

Sloan made an offer of judgment for $249, 999.99 on June 27, 2012. (Dkt. #49-3.) It is undisputed Country did not accept this offer. On April 2, 2013, Country tendered the policy limits of $250, 000 to Sloan. (Dkt. #49-4.) Country was not compelled to do so by any order or judgment of this court. At summary judgment, I granted Country's motion and denied Sloan's. (Dkt. #45.) The clerk of court entered judgment in Country's favor. ( Id. at 13; Dkt. #46.)

Sloan contends, without citation to any legal authority beyond the statute itself, that Country's voluntary payment of the $250, 000 policy limits qualifies as a "judgment" that was less favorable to Country than her $249, 999.99 offer of judgment. Country responds, also without citation to any legal authority beyond the statute itself, that the statute's reference to a "judgment" does not encompass an insurer's voluntary payment of policy benefits. Sloan does not respond to this argument in her reply and simply assumes, without discussion, that the voluntary $250, 000 payment triggered § 17.115.

Nevada has not addressed whether an insurer's voluntary payment of policy benefits after the insured makes an offer of judgment constitutes a "judgment" for purposes of § 17.115. Sloan's opening brief cited no law for the proposition that the voluntary payment qualifies as a "judgment" within the meaning of § 17.115. Country argued in its opposition that the statute's plain language required a "judgment" and that a voluntary payment does not constitute a judgment. Country also noted that the actual judgment in this case was entered in favor of Country, not Sloan. Sloan's reply brief cited no law and made no responsive argument on this issue. I agree with Country's arguments. I therefore deny her request for attorneys' fees, costs, and prejudgment interest under § 17.115.

II. Nev. Rev. Stat. § 18.020

Section 18.020(2) requires the court to award costs "to the prevailing party against any adverse party against whom judgment is rendered" in any action for the recovery of money damages in excess of $2, 500. Here, Sloan sought damages in excess of $2, 500. The parties dispute whether § 18.020 applies in federal court and whether Sloan is the "prevailing party."

Sloan cited no law supporting the application of § 18.020 in federal court. She also cited no law for the proposition that she is the prevailing party where the judgment was entered against her and the $250, 000 payment was not the result of any judicially-sanctioned order or judgment. Sloan assumed, without citing any supportive legal authority in either her motion or reply brief, that she is the prevailing party within § 18.020's meaning and that § 18.020 applies. I disagree with Sloan. As set forth below, she was not the prevailing party. I therefore deny Sloan's request for costs under § 18.020.

III. Bill of Costs Pursuant to Federal Rule of Civil Procedure 54

Each party filed a bill of costs (Dkt. #47, #48) and an objection to the other's bill of costs (Dkt. #52, #54). Pursuant to Federal Rule of Civil Procedure 54(d)(1), "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." This Rule "creates a presumption in favor of awarding costs to a prevailing party." Ass'n of Mexican-Am. Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000) (en banc). Despite ...


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