United States District Court, D. Nevada
before the court is defendant Louis Vignola's motion to
dismiss. (ECF No. 16).Plaintiff Mutual of Enumclaw Insurance
Company (“MOE”) filed a response (ECF No. 24), to
which defendant replied (ECF No. 27).. . . . . .
an action for declaratory relief arising from a 2010
automobile accident in Nevada involving Charles Gilman, Jr.
and Nancy Ouellet. Ms. Ouellet was pronounced dead at the
scene. Mr. Gilman was insured under a policy with MOE,
covering bodily injury limits up to $100, 000.00 per claim
with a $300, 000.00 aggregate limit.
Ouellet's estate brought suit in the matter of
Vignola v. Gilman, et al., case number
2:10-cv-02099-RFB-GWF (“Vignola”). The
case resulted in a verdict for the wrongful death plaintiffs.
In particular, on April 27, 2015, the court in
Vignola awarded damages as follows: (a) $1, 037, 513
for economic losses, (b) $8, 033, 333 for non-economic
damages and (c) $25, 900 for property damages, all totaling
$9, 096, 746.00.
August 12, 2016. Mr. Gilman entered into an assignment of
rights and forbearance agreement, under which Mr. Gilman
assigned to defendant Vignola all rights, privileges, claims,
causes, or actions that Mr. Gilman may have against MOE.
August 22, 2016, Vignola filed a 20-day notice of claim under
the Washington Insurance Fair Conduct Act
(“IFCA”) with the office of the insurance
commissioner for the state of Washington. The complaint
raised five claims for relief under Washington law arising
from MOE's handling of the estate's claim against Mr.
Gilman in Vignola: (1) breach of contract; (2) bad
faith; (3) IFCA violations; (4) violations of
Washington's Consumer Protection Act; and (5) negligence
(the “Washington action”). (ECF No. 16 at 9-10).
September 1, 2016, MOE filed the underlying complaint for
declaratory relief. (ECF No. 1). MOE seeks a declaration that
its obligation to indemnify Gilman is subject to policy
limits of $100, 000.00. (ECF No. 1).
September 12, 2016, Vignola filed suit (the Washington
action) against MOE in Washington state court. (ECF No. 16 at
may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A properly pled complaint must provide “[a]
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). While Rule 8 does not require detailed
factual allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged-but not shown-that the pleader is entitled to
relief.” Id. (internal quotation marks
omitted). When the allegations in a complaint have not
crossed the line from ...