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Kindinger v. Esurance Property and Casualty Insurance Co.

United States District Court, D. Nevada

May 13, 2015

Linda S. Kindinger, Plaintiff,
Esurance Property and Casualty Insurance Company, Defendant.


GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is the Motion for Dismissal or Summary Judgment, (ECF No. 11), filed by Defendant Esurance Property and Casualty Insurance Company. Plaintiff Linda Kindinger filed a Response in opposition, (ECF No. 14), to which Defendant replied, (ECF No. 15). For the reasons set forth herein, the Court will grant the Motion and enter summary judgment in Defendant's favor.


This case arises out of Plaintiff's allegations that Defendant failed to pay benefits required under an uninsured motorist policy ("UIM policy").

Specifically, the Complaint states that Plaintiff suffered extensive injuries when she was rear-ended by a vehicle making an unsafe start at the intersection of Eastern Avenue and Silverado Ranch Boulevard in Las Vegas, Nevada on December 19, 2012. (Compl. ¶ 7, Ex. A to Pet. for Removal, ECF No. 1). On December 31, 2013, Plaintiff submitted a demand letter to Defendant, requesting payment of the full $250, 000 UIM policy limit. (ECF No. 14-9). On January 28, 2014, Defendant requested that Plaintiff submit five years of medical records and undergo an independent medical examination so that Defendant could properly evaluate Plaintiff's claim. (ECF No. 14-12).

On April 10, 2014, Plaintiff's counsel submitted Plaintiff's medical records to Defendant, and enclosed a letter requesting the name of the physician who would be conducting the independent medical examination and stating that Defendant had until May 22, 2014, to respond to Plaintiff's policy-limit demand. (ECF No. 14-13).

On April 29, 2014, Defendant informed Plaintiff's counsel that it had arranged for a physician named Dr. Erkulvrawatr to evaluate Plaintiff on May 16, 2014. (Pl.'s Resp. 4:20-5:1, ECF No. 14). On April 30, 2014, Plaintiff's counsel informed Defendant that, due to "scheduling issues, " it was uncertain whether Plaintiff would be able to attend the medical examination on that date. ( Id. at 5:1-3). At that time, Plaintiff's counsel withdrew its demand that Defendant respond to Plaintiff's policy-limit demand by May 22, 2014. (ECF No. 14-14).

On May 15, May 28, June 17, and July 29, 2014, Defendant placed calls to Plaintiff's counsel and left messages requesting that Plaintiff's counsel call back to discuss rescheduling the medical examination. (Claim Notes pp. 17-20, Ex. D to Motion, ECF No. 11-1).[1] Plaintiff's counsel declined to return these calls or make any attempt to contact Defendant to reschedule the medical examination. (Pl.'s Resp. 9:24-10:3). Instead of responding to Defendant's repeated requests, Plaintiff filed this lawsuit in Clark County District Court on August 27, 2014. (Compl. p. 1). Plaintiff's Complaint sets forth claims for: (1) breach of contract; (2) bad faith; and (3) violations of Section 686A.310(1)(e) of the Nevada Revised Statutes. (Compl. ¶¶ 6-33). Based on these claims, Plaintiff seeks compensatory and punitive damages in excess of $10, 000 for each of her claims as well as unspecified amounts in general damages and attorneys' fees. (Compl. pp. 8-9).

On October 20, 2014, Defendant removed the action to this Court. (Pet. For Removal, ECF No. 1). Thereafter, Defendant filed the instant Motion, seeking summary judgment as to all of Plaintiff's claims. (ECF No. 11).


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 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 that 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. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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 applies a burden-shifting analysis. "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 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 satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. 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 that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the ...

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