United States District Court, D. Nevada
MAXWELL B. WILLIAMS and CLAIR N. WILLIAMS, Plaintiffs,
THE TRAVELERS HOME AND MARINE INSURANCE COMPANY and THE TRAVELERS INDEMNITY COMPANY, Defendants.
ORDER GRANTING MOTION TO DISMISS (ECF No. 5)
P. GORDON UNITED STATES DISTRICT JUDGE.
Maxwell Williams and Claire Williams filed this lawsuit in
Nevada state court on June 17, 2016. Defendants The Travelers
Home and Marine Insurance Company (THMIC) and The Travelers
Indemnity Company (TIC) removed it to this court on August 5,
2016. ECF No. 1. The defendants now move to dismiss most of
the Williamses' claims. They argue that TIC should be
dismissed because it is not a party to the insurance policy
at issue. They also argue the claims for vicarious liability
and punitive damages are remedies, not causes of action.
According to the defendants, all of the Williamses' other
claims, except for their breach of contract claim, are
time-barred. Finally, they contend the Williamses cannot
bring negligence and intentional infliction of emotional
distress claims against their insurance carrier.
convert the motion into one for summary judgment because the
parties have attached evidence to the motion and response. I
grant summary judgment in favor of TIC because it is not a
party to the insurance contract out of which the
Williamses' claims arise. I dismiss the asserted claims
for vicarious liability and punitive damages because these
are theories of recovery, not causes of action. I grant
summary judgment in THMIC's favor on all of the
Williamses' remaining claims, except for their breach of
contract and negligence claims, as time-barred. Finally, I
grant summary judgment in THMIC's favor on the negligence
claim because an insured cannot sue his or her insurer for
negligence where that claim would be duplicative of a breach
of contract or bad faith claim. As a result, the
Williamses' only remaining claim is a breach of contract
claim against THMIC.
Williamses purchased homeowners' insurance from THMIC to
cover their residence. ECF Nos. 1-1 at 5; 5-1. In June 2010,
they suffered a water loss at their home and they submitted a
claim under the policy. ECF No. 1-1 at 5. According to the
complaint, THMIC inspected the property but refused to pay
benefits for the reasonable repair of the residence or for
replacement of damaged contents. Id. at 6. The
complaint alleges that THMIC “ultimately closed the
Plaintiffs' outstanding claims without arriving at a fair
and equitable settlement . . . .” Id. On
October 5, 2011, THMIC sent a letter to the Williamses
stating that it was “closing this file” because
the Williamses allegedly had not cooperated with THMIC. ECF
on THMIC's alleged acts and omissions in its handling of
the Williamses' claim, the complaint asserts the
following: (1) vicarious liability for the alleged actions or
inactions of the defendants' employees; (2) breach of
contract for failing to pay benefits due under the policy;
(3) breach of the implied covenant of good faith and fair
dealing for failing to make repairs or replace the contents
and for “closing the Plaintiffs' outstanding claims
without arriving at a fair and equitable settlement
resolution;” (4) statutory violations for unfair claims
practices; (5) common law bad faith; (6) negligence; (7)
intentional infliction of emotional distress; and (8)
punitive damages. Id. at 6-13.
styled a motion to dismiss, the parties attach evidence to
the motion and the response, which I have considered. I
therefore convert the motion into one for summary judgment.
See In re Rothery, 143 F.3d 546, 549 (9th Cir.
1998); Fed R. Civ. P. 12(d).
judgment is appropriate if the pleadings, discovery
responses, and affidavits demonstrate “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), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
An issue is genuine if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the nonmoving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000). I view the evidence and make
reasonable inferences in the light most favorable to the
nonmoving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
contends it is not a party to the contract out of which the
plaintiffs' claims arise. The Williamses respond that TIC
is mentioned on page 11 of the policy, TIC sent them a
pamphlet, and TIC sent correspondence in July 2012 regarding
an uncashed check made out to the Williamses. They thus argue
there are questions of fact regarding whether TIC is in
privity of contract with the Williamses.
complaint does not allege facts supporting TIC's
liability. It groups the two defendants together and
identifies them collectively as “Travelers.” ECF
No. 1-1 at 4-5. But it contains no factual allegations about
why TIC is liable. The insurance policy identifies the
insurer as THMIC. ECF No. 5-1 at 2. TIC is not listed as an
insurer or a party ...