United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is the Motion for Summary Judgment, (ECF No.
12), filed by Defendants American Family Financial Services,
Inc., and American Family Medical Insurance Company
(collectively “American Family”). Plaintiff
Angelena Gutting (“Plaintiff”) filed a Response,
(ECF No. 14), and American Family filed a Reply, (ECF No.
pending before the Court is Plaintiff's cross-Motion for
Summary Judgment, (ECF No. 20), to which American Family
filed a Response, (ECF No. 24). Plaintiff did not file a
reply, and the time to do so has passed. For the reasons
discussed below, the Court GRANTS American Family's
Motion for Summary Judgment and DENIES Plaintiff's
case arises from American Family's initial refusal to pay
the policy limit under Plaintiff's Uninsured/Underinsured
Motorist (“UIM”) coverage policy. Plaintiff was
involved in a motor vehicle accident on October 27, 2007.
(Ex. B to Defs.' Mot. for Summary J. (“MSJ”)
at 9, ECF No. 12-2). On July 24, 2009, Plaintiff informed
American Family that she had reached a settlement with the
insurance carrier for the third party involved in the
accident for $25, 000. (Ex. H to Defs.' MSJ, ECF No.
12-8). On August 28, 2009, Plaintiff demanded that American
Family tender her the UIM policy limit of $100, 000. (Ex. I
to Defs.' MSJ, ECF No. 12-9).
Plaintiff's policy limit demand, American Family notified
Plaintiff's counsel on September 15, 2009, that they were
conducting a medical review of Plaintiff's claim and
requested additional information. (Ex. K to Defs.' MSJ,
ECF No. 12-11). On September 18, 2009, American Family
completed the medical review and, three days later, extended
an oral offer to settle Plaintiff's claim for $10, 000.
(Ex. J to Defs.' MSJ at 11, ECF No. 12-10). Although
Plaintiff's counsel requested this offer in writing, none
was ever sent. (Id.). Instead, American Family
notified Plaintiff on September 21, 2009, that they would
proceed with an independent medical exam (“IME”)
and requested Plaintiff's medical records or medical
authorization. (Ex. M to Defs.' MSJ, ECF No. 12-13).
late September 2009 and January 25, 2010, American Family via
its vendor attempted to schedule the IME with Plaintiff but
received no response from her or her attorney. (Ex. J at
8-9); (Ex. N to Defs.' MSJ, ECF No. 12-14). After
American Family notified Plaintiff's counsel in writing
of their intent to unilaterally schedule the IME,
Plaintiff's counsel contacted American Family and
scheduled the IME for March 19, 2010. (Ex. J at 9); (Ex. N).
On the day of the IME, Plaintiff's counsel asked to
reschedule the IME because he did not have all the material
required for the visit. (Ex. J at 7). The IME was ultimately
rescheduled and conducted on May 7, 2010, by Dr. Clive Segil
(“Dr. Segil”). (Id.).
Segil issued a report opining that Plaintiff's medical
condition was “very good” and that the chronic
degenerative disc disease in her neck “definitely
predated” the October 27, 2007 accident. (Ex. P to
Defs.' MSJ at 12, ECF No. 12-16). Further, Dr. Segil
concluded that the medical procedures recommended by
Plaintiff's treating physicians were “not medically
necessary and . . . not related to the accident.”
(Id.). Based on Dr. Segil's report, American
Family determined that only $6, 070 of Plaintiff s medical
costs were attributable to the accident, an amount covered by
the third party settlement, and offered Plaintiff $5, 000 to
resolve her UIM claim. (Ex. Q to Defs.' MSJ, ECF No.
12-17); (Ex. R to Defs.' MSJ, ECF No. 12-18).
than respond to the offer, Plaintiff filed suit in the Eighth
Judicial District Court for the District of Nevada on July
21, 2010. (Ex. S to Defs.' MSJ, ECF No. 12-19). The
parties agreed to submit the valuation of Plaintiff's
injury claim to an arbitrator and participated in binding
arbitration on September 30, 2014. (Ex. T to Defs.' MSJ,
ECF No. 12-20). The arbitrator reviewed Plaintiff's
medical records from her treating physicians as well as the
IME conducted by Dr. Segil and a later IME performed on May
2, 2013, by Dr. Hugh S. Selznick, whose conclusions matched
Dr. Segil's opinions. (See Id. at 3-8). Based on
his review of the evidence and Plaintiff's testimony
regarding her condition, the arbitrator found that all of
Plaintiffs past medical expenses were related to the accident
and valued Plaintiff's injury from the accident at $147,
826.46. (Id. at 16). As a result of this decision,
American Family tendered Plaintiff the $100, 000 policy
limits. (See Ex. 1 to Pet. for Removal ¶ 9,
(“Compl.”), ECF No. 1).
then filed the instant Complaint in state court, alleging the
following causes of action against American Family: (1)
common law bad faith; (2) breach of the covenant of good
faith and fair dealing; (3) statutory breach of insurer's
duty pursuant to NRS § 686A.310; and (4) insurer bad
faith and unfair practices. On November 24, 2015, American
Family removed the action to this Court. In the instant
Motions, the parties seek summary judgment on each of these
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
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).
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. Pac. 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). ...