United States District Court, D. Nevada
before the court is defendant Colorado Casualty Insurance
Company's motion for declaration of offset. (ECF No. 16).
Plaintiff filed a response (ECF No. 24), and defendant filed
a reply (ECF No. 26).
January 13, 2016, plaintiff filed a complaint in Nevada state
court alleging breach of contract against defendant regarding
insurance coverage for medical treatment in connection with a
December 15, 2011, automobile accident with an underinsured
driver. (ECF Nos. 1-1, 16). On February 8, 2016, codefendant
United Financial Casualty Company removed this case to
federal court. (ECF No. 1).
asserts that, as of October 6, 2015, he had “incurred
medical expenses from health care providers in excess of
$185, 000.00 with future recommended medical expenses of over
$200, 000.00” and now seeks coverage pursuant to an
agreement with defendant, manifested in policy number
PLPW289540. (ECF No. 1-1 at 4-5). Accordingly, plaintiff
alleges two claims for breach of contract. (Id. at
instant motion, defendant contests that plaintiff would have
been eligible for worker's compensation, but he did not
apply for the same. (ECF No. 16). As a result, defendant
requests a declaration that “Colorado Casualty
Insurance Company is entitled to an offset of amounts to
which [plaintiff] was eligible to receive from workers'
compensation insurance, including all medical specials, lost
wages, and any permanency found to be applicable.”
(Id. at 8) (emphasis removed). To this end,
plaintiff refers to its language in its “limit of
liability” section of the applicable insurance policy,
No one will be entitled to receive duplicate payments for the
same elements of loss under this coverage and Part A or Part
B of this policy . . . .
D. We will not pay for any element of loss if a person is
entitled to receive payment for the same element of loss
under any of the following or similar law:
1. Workers' compensation law; or
2. Disability benefits law.
(ECF No. 16-1 at 174) (emphasis added).
responded that, in light of the Nevada Industrial Insurance
Act (“NIIA”) and the instigating driver's
negligence, he is not obligated to pursue workers'
compensation before seeking coverage from an insurance
policy, particularly when that insurance policy is between
and individual and the insurance provider-not an employer.
(ECF No. 24). Additionally, plaintiff offers that Nevada
Revised Statute 616C.215 and case law allow him to pursue
full recovery from defendant. (Id.). Finally,
plaintiff asserts that the terms of the policy do not exclude
benefits to plaintiff because “he is not entitled to
receive payment through the NIIA” and any estimate as
to the amount he would have received would be mere
speculation. (Id. at 8-9).
replies that the relevant policy language explicitly
“excludes coverage if the insured is entitled to
workers' compensation benefits.” (ECF No. 26 at 3).
Moreover, defendant asseverates that a favorable ruling would
not be against public policy, particularly since plaintiff
elected not to claim those benefits he allegedly was eligible
to receive. (Id.).
law permits an automobile insurer to exclude coverage for
medical expenses to the extent the expenses are paid by
worker's compensation insurance in order to prevent a
double recovery by the insured.” Rubin v. State
Farm Mut. Auto. Ins. Co., 222 F.3d 750, 751 (9th Cir.