United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court are two motions: Defendant Mercury Casualty
Company's Motion for Attorneys' Fees, ECF No. 423,
and Plaintiff David Brigham Young's Motion for a New
Trial Pursuant to Federal Rule of Civil Procedure 59(a), ECF
matter arises from a car accident occurring on April 13,
2006. ECF No. 1. At the time of the accident, Plaintiff
maintained an insurance policy issued by Defendant.
Id. After Defendant refused to provide coverage
under the uninsured or underinsured motorist
(“UIM”) provision of the policy, Plaintiff sued
Defendant to determine the coverage to which Plaintiff was
entitled. See id. The matter was resolved by an
arbitrator, who concluded that Plaintiff was entitled to the
full UIM coverage of $250, 000. Id. An interpleader
action was subsequently filed to divide the UIM benefits
among multiple claimants and Plaintiff. Id.
then brought this suit against Defendant on January 19, 2012,
alleging two claims: (1) unfair claims practices in violation
of Nevada Revised Statute (“NRS”) 686A.310(1)(b),
(e), (f), and (n); and (2) bad faith. Id. Both
claims were predicated on allegations that Defendant delayed
paying the UIM coverage after the point in time at which
Defendant's liability to do so became reasonably clear.
November 14, 2012, Defendant moved to appoint a guardian
ad litem based on Plaintiff requiring a guardian in
the first suit. ECF No. 21. Plaintiff opposed the motion. ECF
No. 24. Magistrate Judge Peggy Leen canvassed Plaintiff on
November 20, 2012 and found him to be competent. ECF No. 26.
But Judge Leen deferred ruling on the motion after Defendant
represented its intent to withdraw the it. Id.
Defendant withdrew the motion via a stipulation on November
29, 2012. ECF Nos. 29, 31 (order granting the stipulation).
Nearly one year later, Plaintiff moved to appoint a guardian
ad litem, and Defendant opposed. ECF Nos. 83, 86.
Magistrate Judge George Foley, Jr. granted the motion on
November 21, 2013. ECF No. 98. Robert Ansara was appointed as
the guardian ad litem on that same day. ECF No. 99.
discovery closed on August 7, 2013, Magistrate Judge Foley
reopened discovery on Plaintiff's motion for a limited
basis. ECF Nos. 51, 98. The Court then overruled Magistrate
Foley in part, reopening discovery for a sixty-day period
without the same limitations and allowing Plaintiff to take
three additional depositions within the new deadline. ECF No.
moved to compel certain documents during the extended
discovery period. ECF No. 114. Defendant opposed, asserting
that the documents were privileged. ECF No. 131. On April 15,
2015, the Court ordered Defendant to submit the documents to
the Court for in camera review. ECF No. 133.
the extended discovery period closed, the parties both moved
for summary judgment. ECF Nos. 146, 148, 149. The Court heard
oral argument on the motions on February 4, 2016. ECF No.
173. The Court ultimately denied Defendant's motion and
granted Plaintiff's motion in part. ECF Nos. 181, 186,
198, 250. The Court granted judgment in favor of Plaintiff on
the claim arising under NRS 686A.310(f)-a portion of
Plaintiff's claim under Nevada's Unfair Claims
Practices Act (“UCPA”). ECF No. 250.
Court later held a pretrial conference spanning from August 8
to August 11, 2016. ECF Nos. 278, 280, 285. A final pretrial
conference was held over April 25, 2017 and May 1, 2017. ECF
Nos. 358, 388. A nine-day trial began on May 3, 2017 and
ended on May 15, 2017. ECF Nos. 410, 418. During trial,
Defendant moved for judgment as a matter of law. ECF No. 395.
The motion was denied as moot once the jury returned a
verdict on May 15, 2017, finding in favor of Defendant on
both claims. ECF Nos. 409, 418. Judgment was entered on June
1, 2017. ECF No. 419.
now moves for a new trial under Rule 59(a). ECF No. 429.
Defendant opposed the motion, and Plaintiff replied. ECF Nos.
now moves for attorneys' fees based on an offer of
judgment extended to and rejected by Plaintiff. ECF No. 423.
Plaintiff opposed the motion, and Defendant replied. ECF Nos.
Court heard oral argument on both pending motions on April
17, 2018. ECF No. 448. The Court then ordered supplemental
briefing to address any attorneys' fees incurred by
Plaintiff through the litigation and any resolutions offered
by Defendant as an alternative to litigation. Id.
The parties filed the supplemental briefs on May 17, 2018.
ECF Nos. 451, 452.
Court reviews its Summary Judgment Order, the trial testimony
and exhibits, and the jury instructions.
Order Granting Summary Judgment
Court granted summary judgment in Plaintiff's favor in
part prior to trial, finding that Defendant violated NRS
686A.310(1)(f). NRS 686A.310(1)(f) provides:
Engaging in any of the following activities is considered to
be an unfair practice:
(f) Compelling insureds to institute litigation to recover
amounts due under an insurance policy by offering
substantially less than the amounts ultimately recovered in
actions brought by such insureds, when the insureds have made
claims for amounts reasonably similar to the amounts
awarding summary judgment in favor of Plaintiff, the Court
found that undisputed evidence showed that: Plaintiff
demanded the full $250, 000 provided for in the UIM coverage;
Defendant denied the claim; and Plaintiff received the full
policy limit from Defendant following the arbitrator's
ruling. The Court also found that Defendant failed to provide
any evidence to show it offered to settle the claim at all,
let alone for an amount not substantially less than $250,
000. Thus, the Court found that Defendant violated NRS
686A.310(1)(f). But the Court left the determination of
damages to the jury.
Court granted summary judgment only as to subsection f; the
Court denied summary judgment as to subsections b, e, and n
of Plaintiff's UCPA claim and as to Plaintiff's bad
the Court considered the types of damages that Plaintiff
could seek at trial. The Court first ruled that the jury
could consider awarding punitive damages for Plaintiff's
bad faith claim as well as the UCPA claim in relation to
subsections e and f. The Court then ruled that Plaintiff
could also recover damages for which Plaintiff could
“establish a causal link between [Defendant's]
actions with respect to violating the UCPA and the damages he
suffered from those actions.” ECF No. 250 at 17. While
the Court also allowed Plaintiff to seek attorneys' fees
under NRS 18.010, it found that the UCPA “does not
serve as a separate vehicle for recovery of attorney's
to the instant Order, four witnesses testified at trial about
Plaintiff's attorneys' fees and financial struggles:
(1) Matthew Aaron, (2) Marjorie Hauf, (3) Richard Small, and
(4) Alfonso Garcia.
testified that he began representing Plaintiff approximately
two weeks after the accident and continued to represent
Plaintiff until the end of 2007. He assisted Plaintiff with
the processing of third-party claims and the UIM claim. While
Plaintiff retained Aaron on a contingent-fee basis, the
retainer allowed Aaron to charge an hourly rate if the
representation was terminated prior to the resolution of the
UIM claim. Thus, after Plaintiff terminated Aaron, Aaron
filed a lien for approximately $33, 000 for his services.
Aaron recovered half of his lien through the interpleader.
But Aaron never initiated litigation against Defendant on
behalf of Plaintiff.
testified that she also represented Plaintiff during the time
in which Defendant was processing the UIM claim. Plaintiff
initially retained Hauf on a contingent-fee basis. However,
Plaintiff terminated the representation after only one month.
Like the fee agreement between Aaron and Plaintiff, the fee
agreement between Hauf and Plaintiff allowed the fees to
transform to an hourly basis. After Plaintiff terminated the
representation, Hauf filed a lien and reduced the lien to
judgment. Hauf did not file litigation on behalf of
Plaintiff. She assisted only with the processing of the UIM
claim, requesting by letter both the claim file and the claim
evaluation. She recovered half of her fees, approximately $4,
000, through the interpleader.
represented Plaintiff in the interpleader after arbitration
was resolved in Plaintiff's favor. Small testified that
he was owed $15, 000 for his services. He also testified that
multiple attorneys made claims for fees through the
interpleader. While the interpleader action resulted in an
order settling most claims, the order did not detail the work
performed by the claimants, the purpose of the fees, or the
time at which the fees were incurred. See Exhibit
91. Small clarified that he did not file any litigation
against Defendant on behalf of Plaintiff and did not assist
Plaintiff in recovering the UIM benefits; he represented
Plaintiff only in regard to the division of the UIM benefits
among the multiple claimants.
fourth witness, Garcia, testified that Plaintiff rented a
condominium from him for several years. Prior to the
accident, Plaintiff was timely in his payments. But Plaintiff
fell approximately ten months behind after the accident,
owing Garcia nearly $7, 000. Garcia allowed Plaintiff to
remain in the condominium despite the late rental payments
due to their existing friendship and Plaintiff's
circumstances. Garcia also lent Plaintiff additional funds to
cover airline tickets and living expenses after the accident
and prior to the interpleader.
Court instructed the jury on NRS 686A.310(1)(f) through
multiple jury instructions, which read as follows:
Mr. Young has also brought four separate claims against
Mercury for violations of the Nevada Unfair Insurance
Practices Act. You are to consider and decide each of
these claimed violations separately from each other.
The Nevada Unfair Insurance Practices Act prohibits any
person in the insurance business from engaging in activities
which constitute an unfair or deceptive act or practice. In
order to establish a claim for breach of the Nevada Unfair
Insurance Practices Act, plaintiff must prove by a
preponderance of the evidence:
1. That defendant violated a provision of the Nevada Unfair
Insurance Practices Act; and 2. The violation was a
substantial factor ...