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Skinner v. Geico Casualty Insurance Co.

United States District Court, D. Nevada

February 26, 2018




         Plaintiff Marissa Skinner was injured in a car accident involving an underinsured driver. Skinner was driving a car owned by Barbara Cutler, who was insured under a policy issued by defendant GEICO Casualty Insurance Company. Skinner made a claim as an insured under Cutler's policy for underinsured benefits. GEICO's top offer to settle the claim was $51, 000. Skinner rejected that offer and brought suit alleging breach of contract, unfair claims practices, bad faith, and negligent misrepresentation. Skinner moves for summary judgment on her breach of contract claim. GEICO moves for summary judgment on Skinner's extra-contractual claims. I deny Skinner's motion, grant in part GEICO's motion, and direct any party seeking to keep Skinner's filings under seal to file a properly supported motion to seal.

         I. BACKGROUND

         Skinner was injured in an auto accident on July 19, 2014. ECF No. 35-2. There is no dispute that the other driver was at fault for failing to yield. Id. There also is no dispute that Skinner is an insured under a GEICO policy issued to Cutler, who owned the vehicle that Skinner was driving at the time of the accident. ECF Nos. 36-2; 40-1 at 3-4. Cutler's policy has an uninsured/underinsured policy limit of $100, 000 per person. ECF No. 36-2.

         Skinner went to the emergency room complaining of pain in her right hand, right ankle, and neck. ECF No. 35-11 at 9, 12. She also complained of pain in her abdomen. Id. at 10. X-rays showed no broken bones, and a CT scan showed no acute intra-abdominal injury. Id. She was advised to use over-the-counter pain medication and released. Id. at 10, 13.

         In September 2014, Skinner's counsel contacted GEICO, requested a copy of the insurance policy, and inquired about the policy limits. ECF No. 35-4. GEICO responded by requesting copies of medical documentation and lost wage verification. ECF No. 35-6. GEICO also requested Skinner sign and return authorizations to obtain medical and wage information. Id. According to GEICO, Skinner never returned the medical authorization. ECF Nos. 28 at 2; 40-2 at 9.

         The at-fault driver had a policy limit of $15, 000 per person for bodily injury, with a total of $30, 000 per accident. ECF No. 35-5. GEICO was aware in February 2015 that the at-fault driver's insurer was admitting liability and that there was a “10k” limit issue. ECF No. 38-3 at 17. In June 2015, the at-fault driver's insurer sent GEICO the declaration page showing the applicable policy limits. ECF No. 35-10. The collision portion of the claim for damage to Cutler's vehicle was closed on July 9, 2015. ECF Nos. 35-3 at 16; 49-4 at 8.

         On September 1, 2015, Skinner's attorney faxed a demand letter to GEICO. ECF No. 35-11; 35-12; 35-13; 35-14. The letter identified $48, 173.97 in medical specials. Id. Skinner's counsel demanded the $100, 000 underinsured policy limit of Cutler's policy. Id. at 5. Attached to the demand letter were medical records from various providers Skinner visited following the accident. Id. at 7-40; ECF No. 35-12 at 1-20. For example, Skinner was treated by Dr. Jordan Anderson. ECF No. 35-12 at 21-31. Dr. Anderson stated Skinner reported headaches and pain in her neck, back, and right foot, none of which she had experienced prior to the accident. Id. at 23-24. Dr. Anderson diagnosed a right foot contusion; muscle spasms; cervical, thoracic, and lumbosacral sprain/strain; and post-traumatic headaches. Id. at 35-12. Dr. Anderson recommended chiropractic treatment, trigger point therapy, electrical muscle stimulation, hot and cold packs, and therapeutic exercises. Id. at 26-27.

         The demand letter also attached records from Dr. Jorg Rosler from the Interventional Pain and Spine Institute. ECF No. 35-13 at 16-22. Dr. Rosler's review of an MRI showed disc bulging at ¶ 4-5 and C5-6, and disc protrusions at ¶ 4-5 and L5-S1 with some spinal canal stenosis at ¶ 4-5. Id. at 17. Dr. Rosler recommended injections and to continue chiropractic treatment with Dr. Anderson. Id. Skinner thereafter received injections from Dr. Rosler. Id. at 18-22; ECF No. 35-14 at 1-10. In June 2015, Skinner underwent radiofrequency ablation of the right C5, C6, and C7. ECF No. 35-14 at 5. At her last treatment in July 2015, Skinner reported her pain at 1 out of 10 and that she was symptom-free in her lumbar spine. Id. at 9. She was discharged from Dr. Rosler's care at maximum medical improvement. Id. at 10. Although Skinner received treatment from other providers before this demand letter was sent, the letter did not refer to those providers or attach related medical records. ECF No. 49-3 at 5-6. The letter also did not include all bills for the Neck and Back Clinic. Id. at 10. There was no indication in the letter or the attached records that Skinner was going to seek future treatment. ECF Nos. 35-11; 49-3 at 14.

         GEICO's records do not show it received the September 1 demand letter. ECF No. 35-3 at 15-16. However, the fax cover sheet shows it was sent to GEICO's general fax number. ECF No. 44-2 at 11.

         On October 12, 2015, Skinner's attorney contacted GEICO and stated he had sent a demand over thirty days ago but had not received a response. ECF No. 35-3 at 15. GEICO responded that it had no record of the demand but that a new adjuster would be assigned to handle Skinner's claim. Id. The next day, GEICO employee Daliz Rodriguez contacted Skinner's attorney and apologized for the lack of response, stating that GEICO had not received the September 1 demand. Id. Rodriguez requested a two-week extension to evaluate the claim and make an offer. Id. Skinner's counsel re-sent the demand letter and attachments but rejected Rodriguez's request for an extension of time. Id. Rodriguez sent a letter to Skinner's counsel requesting confirmation of the at-fault driver's policy limits and any settlement amount with the at-fault driver. ECF No. 35-15.

         Despite counsel's refusal to grant an extension, Rodriguez reviewed the claim. ECF No. 35-3 at 6-7. Rodriguez valued Skinner's claim at $45, 065.97 in medical specials, discounting the demand letter's full requested amount because the bills provided did not establish some of the claimed amounts (specifically for the Neck and Back Clinic). ECF Nos. 35-18; 45-2 at 4. Rodriguez valued Skinner's pain and suffering damages at a range of $14, 000 to $17, 000. ECF No. 35-18. Rodriguez thus identified a negotiation range of $49, 065.97 to $52, 065.97. Id. On October 19, he made an offer of $49, 100 to settle Skinner's claim. ECF Nos. 35-3 at 67; 35-19. However, Skinner had already filed this lawsuit on October 15, 2015. ECF No. 35 at 3.

         During an October 27 phone call with Skinner's counsel, Rodriguez raised the offer to $51, 000, and sent an offer letter in that amount that same day. ECF Nos. 35-3 at 3-4; 35-20. Rodriguez followed up on the offer on December 8. ECF No. 35-22. GEICO did not receive a response to its last few letters to Skinner, and Skinner did not respond to several letters asking her to complete a Medicare beneficiary form. ECF No. 38 at 3. Skinner filed an amended complaint on December 2, 2015. ECF No. 1-1. GEICO was served with the summons, complaint, and amended complaint approximately two weeks later. ECF Nos. 35 at 4; 35-24.

         After suit was filed, Skinner disclosed she was seeking compensation for additional medical specials, for a revised total of $62, 780.02. ECF No. 40-6 at 3; see also ECF No. 45-3 at 9, 20-23 (identifying additional treatment for neck pain starting in October 2015 through February 2016). She also claimed she was entitled to future medical treatment and future pain and suffering. ECF No. 40-6 at 4.

         In October 2016, Skinner was evaluated by Dr. Hugh Selznick. ECF No. 45-3. At that evaluation, Skinner reported she continued to experience sporadic neck pain and related headaches. ECF No. 45-3 at 1-4, 6. Dr. Selznick attributed Skinner's care through December 2014 as accident-related, but opined that Dr. Rosler's care “should in no way be attributed to [the] subject accident.” Id. at 7. He noted that Skinner reported to him that a dentist recently suggested that her headaches may be the result of grinding her teeth. Id. at 9.

         GEICO has not raised or lowered its offer of $51, 000 to settle Skinner's claim in response to information obtained through discovery. GEICO has not paid Skinner any amount on her underinsured claim. ECF No. 40-1 at 6.


         Summary judgment is appropriate if the movant shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). I view the evidence and reasonable inferences in the light most favorable to the non-moving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008).


         Skinner argues that although GEICO admits she is an insured and has a valid underinsured motorist claim, GEICO refuses to pay anything on the claim despite offering what Skinner characterizes as the undisputed amount of $51, 000. Skinner also argues that by negotiating to settle the claim within a range, GEICO breached the contract by placing its own interests above its insured's. Finally, Skinner argues GEICO breached the contract when it closed Skinner's claim and denied that it had received the September 1 demand letter.

         GEICO responds that the value of Skinner's claim is disputed, and thus there is no undisputed amount which GEICO is contractually obligated to pay. GEICO argues neither the policy nor Nevada law requires an insurer to pay the amount of a pre-litigation settlement offer on an uninsured motorist claim to avoid breaching the insurance contract. GEICO argues that because bodily injury claims are subjective and there are questions about what injuries are causally related to the accident, there is no undisputed amount that GEICO is contractually required to pay. GEICO also argues there is no policy provision regarding GEICO closing a claim or erroneously losing track of a demand letter, so it cannot be liable on a breach of contract theory on these allegations either.

         Under Nevada law, a plaintiff asserting a breach of contract claim must show “(1) the existence of a valid contract, (2) a breach by the defendant, and (3) damage as a result of the breach.” Saini v. Int'l Game Tech., 434 F.Supp.2d 913, 920-21 (D. Nev. 2006) (citing Richardson v. Jones, 1 Nev. 405, 405 (1865)). The insurance contract provides that GEICO will provide uninsured motorist coverage and “will pay damages for bodily injury caused by accident which the insured is legally ...

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