United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion to Dismiss. ECF No. 5.
For the reasons stated below, the Court grants the motion.
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.
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).
SUMMARY OF ALLEGED FACTS
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.
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
Motion to Dismiss Defendants argue only that the claims of
negligence and negligence per se are not legally cognizable
in this case.
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 ...