United States District Court, D. Nevada
LILLY LE NGUYEN as Administrator of the Estate of Phillip Nguyen, Plaintiff,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
DISMISS (ECF NO. 8)
P. GORDON UNITED STATES DISTRICT JUDGE.
Lilly Le Nguyen, as administrator of her son Phillip
Nguyen's estate, filed suit against defendant State Farm
Mutual Automobile Insurance Company. Phillip was killed in a
motor vehicle accident in March 2014. ECF No. 1 at 12. At the
time, Nguyen had four State Farm insurance policies
potentially providing Phillip uninsured motorist coverage up
to $25, 000 each, for a total of $100, 000. Id.
State Farm allegedly has refused to pay $100, 000 to settle
Phillip's claim. Id. at 13. Nguyen thus sues
State Farm for breach of contract,  unfair claims practices,
unjust enrichment, and bad faith. Id. at 13-16.
Farm moves to dismiss. It contends the four policies each
contain unambiguous anti-stacking provisions that preclude
Nguyen from collecting any more than $25, 000 under one
policy. State Farm thus argues it properly tendered only $25,
000 and did not breach the insurance contract. State Farm
also moves to dismiss Nguyen's other claims on various
grounds. Nguyen responds only that the anti-stacking clause
is unenforceable because it is not prominently set forth in
the motion to dismiss the breach of contract claim because
the anti-stacking provision is not prominent. I grant the
motion to dismiss the remainder of Nguyen's claims
because she did not oppose the motion to dismiss those
claims. However, I grant Nguyen leave to amend.
considering a motion to dismiss, “all well-pleaded
allegations of material fact are taken as true and construed
in a light most favorable to the non-moving party.”
Wyler Summit P'ship v. Turner Broad. Sys., Inc.,
135 F.3d 658, 661 (9th Cir. 1998). However, I do not
necessarily assume the truth of legal conclusions merely
because they are cast in the form of factual allegations in
the complaint. See Clegg v. Cult Awareness Network,
18 F.3d 752, 754-55 (9th Cir. 1994). A plaintiff must make
sufficient factual allegations to establish a plausible
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007). Such allegations must amount to
“more than labels and conclusions, [or] a formulaic
recitation of the elements of a cause of action.”
Id. at 555.
Breach of Contract
enforceable, an anti-stacking provision must satisfy three
prerequisites under Nevada Revised Statutes §
687B.145(1). “First, the limiting provision must be
expressed in clear language. Second, the provision must be
prominently displayed in the policy, binder or endorsement.
Finally, the insured must not have purchased separate
coverage on the same risk nor paid a premium calculated for
full reimbursement under that coverage.” Nationwide
Mut. Ins. Co. v. Coatney, 42 P.3d 265, 267 (Nev. 2002)
(per curiam) (quoting Neumann v. Standard Fire Ins. Co.
of Hartford, Conn., 699 P.2d 101, 103 (Nev. 1985)).
“[T]he burdens of persuasion and production on the
issue of the validity of an anti-stacking clause prohibiting
stacking of UM coverage rest on the insurer.”
Torres v. Farmers Ins. Exch., 793 P.2d 839, 842
(Nev. 1990) (per curiam).
only factor at issue here is whether the anti-stacking
provision is prominently displayed. The purpose of the
prominence requirement is to “make more apparent to a
policy holder those provisions which may have an adverse
effect on a claim under the policy, and to give him notice of
his true coverage.” Neumann, 699 P.2d at 104
(quotation omitted). Thus, to meet the prominence
requirement, the clause must direct attention toward the
“critical language” and “have greater
prominence than other provisions.” Id. at 105.
An anti-stacking clause “attains prominence by being
different from its surrounding terms.” Id.
Nevada courts have held that an anti-stacking provision
satisfied the prominence requirement where it was the only
part of the policy with more than two lines written in
boldfaced capital letters. Bove v. Prudential Ins. Co. of
Am., 799 P.2d 1108, 1111 (Nev. 1990); see also
Serrett v. Kimber, 874 P.2d 747, 751 (Nev. 1994)
(anti-stacking clause prominently displayed where only other
bold-faced provisions were similar anti-stacking clauses).
Likewise, where anti-stacking clauses “are set apart
from the other policy language by a prominent text box,
capital letters, and italicized font, ” the clauses are
prominent. Farmers Ins. Exch. v. Lawless, 680
F.Supp.2d 1238, 1243 (D. Nev. 2010).
anti-stacking clause in Nguyen's policy is not prominent.
It is in all capital letters and underlined, while the rest
of the policy, on balance, is not. ECF No. 8-2 at 25.
However, it is not prominent when compared to its surrounding
terms. It is contained on a page where nearly all text is in
capital letters with some terms bolded and italicized.
Id. Additionally, other provisions on the page are
also capitalized and underlined. Id. Those
provisions are not merely identical anti-stacking provisions.
Instead they relate to whether the coverage is primary and
what proportion State Farm will pay if other insurance
applies. Id. The anti-stacking clause is sandwiched
between these clauses, which are capitalized and underlined,
and various exclusions, which are capitalized but not
underlined. Id. The anti-stacking clause thus does
not have greater prominence than other surrounding provisions
as the statute requires. Accordingly, I deny the
defendants' motion to dismiss the breach of contract
Nguyen's Other Claims
Farm argues the bad faith claim should be dismissed because
it had a reasonable basis for asserting the anti-stacking
provision applies. State Farm also moves to dismiss the
unfair practices claim because no supporting facts are
alleged. Finally, State Farm moves to dismiss the unjust
enrichment claim because a written contract controls the
parties' relationship. Nguyen did not respond to any of
these arguments. I therefore grant State Farm's motion as
unopposed. LR 7-2(d). However, I grant Nguyen leave to amend,
if she can allege sufficient facts giving rise to these