United States District Court, D. Nevada
ORDER (1) DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT; (2) GRANTING IN PART DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT; AND(3) DIRECTING PARTIES TO FILE A MOTION
TO SEAL IF WARRANTED (ECF NOS. 34, 37)
P. GORDON UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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'S MOTION FOR SUMMARY JUDGMENT (ECF No.
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
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
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 ...