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Chacon v. State Farm Automobile Insurance Co.

United States District Court, D. Nevada

March 29, 2017

GERARDO CHACON, Plaintiff,
v.
STATE FRAM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court is Defendant's Motion to Dismiss. ECF No. 5. For the reasons stated below, the Court grants the motion.

         II. BACKGROUND

         Defendant filed the petition for removal with attached complain on April 4, 2016. ECF No. The Complaint asserts the following claims: (1) Breach of Contract, (2) Breach of Duty of Good Faith, (3) Negligence, and (4) Negligence Per Se for violation of NRS 686A.310 et seq. and NAC 686A.600 et seq. Defendant filed the Motion to Dismiss on May 4, 2016. ECF No. 5. The Motion attacks only the (3) and (4) claims for Negligence and Negligence Per Se on the grounds that they are not legally cognizable in this context. Plaintiff responded on May 20, 2016, and Defendant replied on May 27, 2016. ECF Nos. 10, 11.

         III. LEGAL STANDARD

         In order to state a claim upon which relief can be granted, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In ruling on a motion to dismiss for failure to state a claim, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Security Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). To survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” meaning that the court can reasonably infer “that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).

         IV. SUMMARY OF ALLEGED FACTS

         The Court incorporates by reference the factual allegations of the Complaint. The Court does make note of the following allegations in the Complaint. On May 13, 2012, Plaintiff was rear-ended as the vehicle slowed down for traffic. Helen Danshell Gooch (“Gooch”) was driving the fourth vehicle in a line of four, and the resultant chain of rear-ends led to plaintiff being rear-ended. Gooch was negligent and liable for Plaintiff's damages. At the time of the accident, Gooch was covered by Geico with limits of $15, 000 per person and $30, 000 per accident. Plaintiff was insured for underinsured motorist (“UIM”) coverage under policy #0786072-E02-28 with coverage limits of $100, 000.00 per person and $300, 000.00 per accident. On November 8, 2013, Chacon presented Defendants with proof of claim for damages for injuries to his neck and back. The proof contained billing showing he had incurred $86, 821.28 in medical treatment as a result of the accident, and provided a copy of the Accident Report. Based on the proof of claim, Chacon demanded the policy limit of $100, 000 and gave Defendants 30 days to evaluate the plan. On April 23, 2015, Defendants sent correspondence stating that they were only able to consider and thus offer $7, 020 medical special damages for Chacon's urgent care visit, physical therapy, and massage therapy under the UIM plan.

         Plaintiff alleges that Defendants unreasonably and unfairly denied him coverage by failing to adequately investigate and evaluate his claim, or provide him reasons for their denial determination. Among other deficiencies in the coverage investigation, Plaintiff alleges: failure to take a recorded statement of Chacon; failure to consider sufficient pain and suffering damages and/or diminished earning capacity damages, or if they did, failure to inform Chacon in writing of their evaluation or the basis for them; failure to consult with a spine surgeon; failure to follow up with Dr. Schifini after being notified of additional treatment; and failure to have or articulate a basis for Schifini's pre-existing condition determination.

         V. DISCUSSION

         In this Motion to Dismiss Defendants argue only that the claims of negligence and negligence per se are not legally cognizable in this case.

         A. Legal Standard

         “To establish a prima facie case of bad-faith refusal to pay an insurance claim, the plaintiff must establish that the insurer had no reasonable basis for disputing coverage, and that the insurer knew or recklessly disregarded the fact that there was no reasonable basis for disputing coverage.” Powers v. United Services Auto. Ass'n, 962 P.2d 596, 702-03 (Nev. 1998). “Negligence per se is not a distinct cause of action from negligence, but rather a means of establishing the duty and breach elements of a negligence claim, “if the injured party belongs to the class of persons that the statute was ...


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