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Wagenschutz v. State Farm Fire & Casualty Co.

United States District Court, D. Nevada

February 16, 2018

CYSTINE WAGENSCHUTZ,, Plaintiff,
v.
STATE FARM FIRE & CASUALTY COMPANY and DOES I through X, inclusive, Defendants.

          HALL JAFFE & CLAYTON, LLP RILEY A. CLAYTON Attorney for Defendant.

          STUCKI INJURY LAW Kyle A. Stucki, Bruce D. Tingey, Esq., W. Charleston Blvd. Attorneys for Plaintiff.

          STIPULATION AND ORDER FOR DISMISSAL WITH PREJUDICE, CAP ON DAMAGES, AND AGREEMENT FOR PRIVATE BINDING ARBITRATION

          GLORIA M. NAVARRO, CHIEF JUDGE

         This Stipulation and Order for Dismissal With Prejudice, Cap On Damages, And Agreement For Binding Arbitration (hereinafter “Agreement”) is entered into by Plaintiff, Cystine Wagenschutz (“Plaintiff”), and Defendant, State Farm Fire & Casualty Company (“State Farm”), (collectively referred to as the “Parties”), as an alternative method of resolving a dispute that has arisen from two separate automobile accidents that occurred on September 17, 2016, and October 27, 2016, respectively, which resulted in two separate UIM claims (Claim Nos. 28-9D73-822; 28-9P17-368, respectively), and which culminated in a lawsuit styled Cystine Wagenschutz v. State Farm Fire & Casualty Company, currently pending in the United States District Court, District of Nevada, Case No. 2:17-cv-02875-GMN-NJK. Plaintiff is represented by Stucki Injury Law and Tingey & Tingey. State Farm is represented by Hall Jaffe & Clayton, LLP.

         The following terms and conditions of this Agreement will become effective upon the signature by the Parties and the execution and filing of the same by this Court.

         1. State Farm has issued two separate policies of automobile insurance, one naming Cystine Wagenschutz as the named insured (Policy No. 095069728B), and another naming Bernadine A. Lewandowski as the named insured (Policy No. 122946628), which provide, among other coverages, Uninsured/Underinsured Motor Vehicle coverage (“UIM”). Each of these separate policies contains UIM limits of $50, 000 “each person” for any single accident, subject to all terms, conditions, limitations of the policy and any applicable offsets.

         2. In an effort to resolve all disputes, claims, and controversies between the Parties arising out of and relating to the September 17, 2016, and October 27, 2016, automobile accidents and subsequent claims handling and decision-making, the Parties have agreed to dismiss the pending lawsuit with prejudice, cap all damages against State Farm at $100, 000 (which is the aggregate of the two separate $50, 000 UIM limits from each policy for each accident), and allow the remaining UIM value dispute claims to be submitted to and decided through binding arbitration.

         3. For and in consideration of the mutual covenants and promises made herein, the Parties enter into this Agreement and agree to be bound by its terms as fully stated herein.

         4. The Parties, through this Agreement, agree to dismiss the instant lawsuit with prejudice that is currently on file in the United States District Court, State of Nevada, with each party to bear its own fees and costs.

         5. The Parties agree that the arbitration shall be binding and shall be the sole and final resolution and adjudication of Plaintiff's UIM value dispute claims against State Farm arising out of the September 17, 2016, and October 27, 2016, automobile accidents. The arbitrator's decision and award shall be the sole basis for recovery on this claim and shall be final and binding. The Parties agree that there shall be no right of appeal of the arbitrator's decision to any trial or appellate court or any other court, forum, person or entity, or the arbitrator himself. Likewise, the Parties agree that there shall be no right to submit a motion for reconsideration or similar motion or request to the arbitrator.

         6. The arbitrator will only be asked to resolve the issue of Plaintiff's legal entitlement, if any, to UIM proceeds under the two separate policies arising out of the two separate automobile accidents, subject to all terms, conditions, and offsets under the policy and Nevada law. In other words, the arbitrator shall determine fault for these accidents (and apportion it appropriately, if necessary), and the extent of Plaintiff's damages by placing a fair and equitable “total value” (which includes compensable medical specials, income loss, and general damages) on Plaintiff's claims for each accident, and the application of any of the policy's terms, conditions and exclusion, if applicable. The arbitrator will not be asked to and will not consider any alleged claims handling/decision-making issues or liability for extra-contractual claims, including, but not limited to, breach of the implied covenant of good faith and fair dealing, statutory claims handling violations, stacking of UM/UIM policies, or liability for punitive or other extra-contractual damages, as such extra-contractual claims and damages, have been and are expressly waived by Plaintiff through this Agreement and through the dismissal of the lawsuit with prejudice.

         7. The Parties agree to use Joseph Bongiovi, Esq. as the arbitrator.

         8. The Parties shall advise the arbitrator of an agreement for binding arbitration and proceed in a manner that is agreeable to the Parties and to the arbitrator. The Parties shall be allowed to conduct any reasonable discovery permitted by the arbitrator under the Nevada Rules of Civil Procedure. The arbitrator shall resolve any and all discovery disputes, including the scope of permitted discovery. Subpoenas can be issued and enforced pursuant to NRS ...


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