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Volungis v. Liberty Mutual Fire Insurance Co.

United States District Court, D. Nevada

July 23, 2018

ETHAN VOLUNGIS, et al., Plaintiffs,
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendants.

          ORDER

         Presently before the court is defendant Liberty Mutual Fire Insurance's (“Liberty Mutual”) motion to dismiss. (ECF No. 5). Plaintiffs Farooq Abdulla (“Mr. Abdulla”), Nighat Abdulla, and Ethan Volungis filed a response (ECF No. 12), to which Liberty Mutual replied (ECF No. 13).

         I. Facts

         On July 2, 2013, Volungis and Mr. Abdulla were involved in a motor vehicle accident. (ECF No. 1, Ex. 1). At the time of the accident, Mr. Abdulla was insured under a personal automobile insurance policy issued by Liberty Mutual with limits of $100, 000 per person/$300, 000 per accident (“the policy”). Id. Volungis sustained serious bodily injuries as a result of the accident. Id.

         On February 14, 2014, Volungis's attorney mailed a policy limit demand for $100, 000 to Liberty Mutual. Id. at 3. The demand was expressly contingent upon Volungis's attorney receiving Liberty Mutual's acceptance, in writing, by 5:00 p.m. on March 14, 2014, or the offer would be withdrawn. Id. at 4. The demand was also conditioned upon Liberty Mutual providing a copy of the Abdullas' policy declaration sheet, and a representation confirming that there was no additional insurance coverage covering either the owner or the driver of the subject vehicle. Id.

         On March 14, 2014, Liberty Mutual mailed a letter to Volungis's attorney providing a settlement and release form. Id. Liberty Mutual did not provide Volungis's attorney with a copy of the Abdullas' policy declaration sheet or a representation confirming that there was no additional insurance coverage. Id.

         On March 26, 2014, Liberty Mutual drafted another letter to Volungis's attorney confirming its settlement offer of $100, 000. Id. The letter did not include a copy of the Abdullas' policy declaration sheet or a representation confirming that there was no additional insurance coverage. Id.

         On June 20, 2014, Volungis filed his complaint against Mr. Abdulla in the Eighth Judicial District Court of Clark County, Nevada. Id. at 5. On July 2, 2014, Liberty Mutual contacted Volungis's attorney regarding Liberty Mutual's agreement to settle for the limits of the policy. Id. Volungis's attorney responded that Volungis was no longer willing to settle because Liberty Mutual failed to provide a copy of the Abdullas' policy declaration sheet or a representation confirming that there was no additional insurance coverage by the March 14, 2014, deadline. Id.

         On May 6, 2016, a jury found in favor of Volungis on his personal injury claims against Mr. Abdulla, awarding Volungis damages totaling $6, 798, 413.07. Id. at 6. On October 31, 2016, the Abdullas filed for bankruptcy protection. Id. at 7. Mr. Abdulla subsequently assigned to Volungis all assignable claims that he has against Liberty Mutual, up to the total amount of the judgment. Id. at 7-8.

         On July 27, 2017, plaintiffs filed a complaint in the Eighth Judicial District Court of Clark County, Nevada, asserting four claims for relief. Id. On August 24, 2017, Liberty Mutual filed a petition for removal to this court. (ECF No. 1). In the instant motion, Liberty Mutual moves to dismiss plaintiffs' complaint. (ECF No. 5).

         II. Legal Standard

         A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide “[a] short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

         “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. 662, 678 (citation omitted).

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

         Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678.

         Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged-but not shown-that the pleader is entitled to relief.” Id. (internal quotation marks omitted). When the allegations in a complaint have not crossed the line from ...


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