United States District Court, D. Nevada
MICHAEL WURM, an individual, and KRISTEN KENNEDY, an individual, Plaintiffs,
MARKEL INSURANCE COMPANY, a Virginia Corporation; MARKEL CORPORATION, a Virginia Corporation; MID-CENTURY INSURANCE COMPANY, a reciprocal or inter-insurance exchange; and ABC CORPORATIONS 1-30; and DOES 1-30, inclusive, Defendants.
before the court is Defendant Markel Insurance Company's
(“MIC”) motion for judgment on the pleadings (ECF
No. 39). Plaintiff Kristen Kennedy (“Kennedy”)
responded (ECF No. 47) and MIC replied (ECF No. 48).
pending before the court is MIC's motion for sanctions
pursuant to Federal Rule of Civil Procedure 11 (ECF No. 49).
Kennedy responded (ECF No. 52) and MIC replied (ECF No. 58).
action arises from an automobile accident that occurred on
July 11, 2013. (ECF No. 1-3 at ¶¶ 9-15). Plaintiff
Michael Wurm (“Wurm”) was driving a vehicle and
Kennedy was his passenger when they were hit from behind by
another vehicle. (Id. at ¶¶ 9, 15). At the
time of the accident, the vehicle driven by Wurm was insured
by MIC under a policy that provided $1, 000, 000 Under
Insured Motorist (“UIM”) coverage. (Id.
at ¶ 19).
and Kennedy each carried their own personal automobile
insurance policies. (Id. at ¶¶ 20-21).
Wurm received $40, 000 from the tortfeasor's insurance
carrier. (Id. at ¶ 29). Kennedy received $50,
000 from the tortfeasor's insurance carrier and $25, 000
in UIM benefits from her insurer, State Farm. (Id.
at ¶¶ 29, 32).
action was initially filed by Wurm and Kennedy in the Second
Judicial District Court for the State of Nevada against MIC
and Farmers Insurance Exchange, Wurm's personal automobile
insurance carrier. (ECF No. 1-3). Plaintiffs allege breach of
contract, breach of the duty of good faith and fair dealing,
statutory violations, and intentional infliction of emotional
distress. This action was removed to this court on May 6,
2016. (ECF No. 1). On June 6, 2016, MIC filed a counterclaim
against Wurm and Kennedy for declaratory relief. (ECF No.
11). On January 20, 2017, the court approved the stipulation
to dismiss with prejudice: (1) Wurm's claims against MIC
and Mid-Century Insurance Company and (2) MIC's
counterclaims against Wurm. (ECF No. 33).
Motion for Judgment on the Pleadings
moves for judgment on the pleadings against Kennedy. (ECF No.
39). Federal Rule of Civil Procedure 12(c) provides that
“[a]fter the pleadings are closed-but early enough not
to delay trial- a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). Pleadings are closed
when all pleadings required or permitted in federal actions
by Rule 7(a) have been served and filed. See Doe v.
U.S., 419 F.3d 1058, 1061 (9th Cir. 2005).
judgment on the pleadings is properly granted when, taking
all allegations in the non-moving party's pleadings as
true, the moving party is entitled to judgment as a matter of
law.” United States v. Teng Jiao Zhou, 815
F.3d 639, 642 (9th Cir. 2016) (quoting Fajardo v. Cty. of
L.A., 179 F.3d 698, 699 (1999)). In ruling on a motion
for judgment on the pleadings, the court accepts as true all
well-pleaded factual allegations by the nonmoving party and
construes the facts in the light most favorable to that
party. Gen. Conference Corp. of Seventh-Day Adventists v.
Seventh-Day Adventist Congregational Church, 887 F.2d
228, 230 (9th Cir. 1989). Thus, the court must
determine if, taking the alleged facts as true, and drawing
all reasonable inferences in favor of plaintiff, whether the
complaint plausibly states a claim for relief. Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009);
Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
1047, 1054 n. 4 (9th Cir. 2011) (stating the standard
governing a Rule 12(c) motion is “functionally
identical” to that governing a Rule 12(b)(6) motion).
argues that Kennedy failed to satisfy certain conditions
precedent to coverage, and as such cannot prevail on her
claims for breach of contract and breach of the duty of good
faith and fair dealing.
first claims that MIC breached the contract. Kennedy alleges
the existence of a contract, that she “performed all of
the conditions of the contract required to be performed on
[her] part, ” and that MIC “breached the contract
by failing to pay and unreasonably delaying payment of
benefits due and owing, including the undisputed benefits,
and by failing to promptly, fairly and equitably process and
investigate [Kennedy's] claims.” (ECF No. 1-3 at
¶¶ 45, 47). Kennedy has asserted sufficient facts
to plead the breach of contract claim.
also claims that MIC breached the duty of good faith and fair
dealing. Kennedy alleges that her contract with MIC had an
implied covenant of good faith and fair dealing, that MIC
breached its duties by, among other reasons, adjusting her
claim in violation of the Nevada Unfair Claims Practices Act,
and failing to promptly settle and process her claim.
(Id. at ¶¶ 50-51). Kennedy has asserted
sufficient facts to plead the breach of the duty of good
faith and fair dealing claim.
MIC is not entitled to judgment on the pleadings. MIC's
motion for judgment on the pleadings (ECF No. 39) is denied
without prejudice to renew as a motion for summary judgment
at the close of discovery.