United States District Court, D. Nevada
M. NAVARRO, DISTRICT-JUDGE
before the Court are the Motions for Summary Judgment, (ECF
Nos. 13, 22), filed by Defendant State Farm Fire and Casualty
Company (“State Farm”). Plaintiff Riverport
Insurance Company (“Riverport”) filed Responses,
(ECF Nos. 15, 34), and State Farm filed Replies, (ECF Nos.
pending before the Court is Riverport’s Motion for
Summary Judgment, (ECF No. 25). State Farm filed a Response,
(ECF No. 31), and Riverport filed a Reply, (ECF No. 33).
State Farm and Riverport provided Supplemental Briefs, (ECF
Nos. 46, 48), in support of their Motions.
reasons discussed below, the Court GRANTS
State Farm’s Motions for Summary Judgment, and
DENIES Riverport’s Motion for Summary
case arises from injuries sustained by Angela DiMaria
(“DiMaria”) when she fell in a shopping center
parking lot owned by D&L Development
(“D&L”). (State Farm’s Mot. Summ. J.
(“MSJ”) 8:4–16, ECF No. 13); (Exam. DiMaria
at 26:11–29:6, 30:14–42:10, Ex. N to State
Farm’s MSJ, ECF No. 13-14); (Riverport’s MSJ
3:16–18, ECF No. 25); (Lease, Ex. 2 to
Riverport’s MSJ, ECF No. 25-2). DiMaria’s fall
occurred right after she left Spirals Hair & Nails Salon
(“Spirals”), which was one of the tenants renting
space within D&L’s shopping center. (Exam. DiMaria
8:10–38:23, Ex. 4 to Riverport’s MSJ); (Lease,
Ex. 2 to Riverport’s MSJ). DiMaria attributed her fall
to an uneven and cracked portion of asphalt that she tripped
on while getting into her car located in one of the shopping
center’s handicapped parking spaces. (Exam. DiMaria
27:4–38:23, Ex. 4 to Riverport’s
of the Lease Agreement between Spirals and D&L, Spirals
had to have “public liability insurance to protect
against any liability to the public, incident to the use of
or resulting from any occurrence in or about said
premises.” (Lease, Ex. 2 to Riverport’s MSJ, ECF
No. 25-2). The Lease Agreement defined the
“premises” for Spirals as “8544 Del Webb
Blvd. . . . Together with the use of driveways and parking in
common with the other tenants of Rampart Plaza.”
(Id.). Spirals accordingly obtained a commercial
general liability policy from State Farm (the
“Policy”), and listed D&L as an additional
insured on that Policy. D&L also maintained its own
insurance through Riverport.
27, 2016, D&L received correspondence from an attorney
for DiMaria (“Demand Letter”), which notified
D&L of DiMaria’s injuries and her potential claims
for damages. (Letter from Royi Moas, Esq. to D&L, Ex. 5
to Riverport’s MSJ, ECF No. 25-5). About four months
later, D&L’s counsel (David J. Feldman, Esq.) sent
DiMaria’s Demand Letter to Spirals and State Farm,
alongside correspondence discussing DiMaria’s
threatened claims. (Nov. 2, 2016 Letter at 9-11, Ex. 5 to
Riverport’s MSJ, ECF No. 25-5). D&L’s counsel
also demanded that State Farm defend and indemnify D&L
for any of DiMaria’s claims. (Id.). State Farm
responded a few weeks later, stating that it was reviewing
the documents from D&L, and that it would advise D&L
of its decision to accept or reject the tendered request for
defense and indemnity. (Nov. 29, 2016 Letter from State Farm
at 12, Ex. 5 to Riverport’s MSJ).
February 28, 2017-after Riverport received State Farm’s
response, but before State Farm decided to accept or deny
coverage-Riverport and DiMaria participated in a mediation.
(Aff. David Feldman (“Feldman”) ¶¶
8–12, Ex. 1. to Riverport’s MSJ, ECF No. 25-1).
Though State Farm did not participate in that mediation,
Riverport and DiMaria reached a settlement for $190, 000.00.
(Id. ¶ 13). Riverport then paid that settlement
amount on behalf of D&L based on D&L’s
insurance policy with Riverport. (Id.).
two months after that mediation, State Farm notified
Riverport that it was denying coverage for DiMaria’s
injuries because Spirals only purchased coverage for the
“actual floor space” leased to Spirals, and not
the parking lot leased and used in common with other tenants.
(April 21, 2017 Letter from State Farm to Feldman, Ex. 5 to
Riverport’s MSJ, ECF No. 25-5). Because State Farm
denied D&L’s demand for defense and
indemnification, Riverport commenced this action seeking a
declaration of coverage under the Policy and seeking
indemnity or contribution for the amount that Riverport paid
to settle with DiMaria. (Compl., ECF No. 1).
Riverport’s Complaint asserts five causes of action:
(1) declaratory relief; (2) equitable indemnity; (3)
equitable subrogation; (4) equitable contribution; (5) breach
of contract. (Id. ¶¶ 14–43).
Farm now moves for summary judgment in its favor for each of
Riverport’s claims. (State Farm’s MSJs, ECF Nos.
13, 22). Riverport conversely moves for summary judgment in
its favor and against State Farm on all claims.
(Riverport’s MSJ, ECF No. 25).
Federal Rules of Civil Procedure provide for summary
adjudication when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that “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).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is a sufficient evidentiary basis on which a
reasonable fact-finder could rely to find for the nonmoving
party. See Id . “The amount of evidence
necessary to raise a genuine issue of material fact is enough
‘to require a jury or judge to resolve the
parties’ differing versions of the truth at
trial.’” Aydin Corp. v. Loral Corp., 718
F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l
Bank v. Cities Serv. Co., 391 U.S. 253, 288–89
(1968)). “Summary judgment is inappropriate if
reasonable jurors, drawing all inferences in favor of the
nonmoving party, could return a verdict in the nonmoving
party’s favor.” Diaz v. Eagle Produce Ltd.
P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008)
(citing United States v. Shumway, 199 F.3d 1093,
1103–04 (9th Cir. 1999)). A principal purpose of
summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986).
determining summary judgment, a court applies a
burden-shifting analysis. “When the party moving for
summary judgment would bear the burden of proof at trial, it
must come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted). In contrast, when the
nonmoving party bears the burden of proving the claim or
defense, the moving party can meet its burden in two ways:
(1) by presenting evidence to negate an essential element of
the nonmoving party’s case; or (2) by demonstrating
that the nonmoving party failed to make a showing sufficient
to establish an element essential to that party’s case
on which that party will bear the burden of proof at trial.
See Celotex Corp., 477 U.S. at 323– 24. If the
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party’s evidence. See Adickes v. S.H.
Kress & Co., 398 U.S. 144, 159–60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties’ differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 631 (9th Cir.
1987). However, the nonmoving party “may not rely on
denials in the pleadings but must produce specific evidence,
through affidavits or admissible discovery material, to show
that the dispute exists, ” Bhan v. NME Hosps.,
Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and
“must do more than simply show that there is some
metaphysical doubt as to the material facts.” Orr
v. Bank of America, 285 F.3d 764, 783 (9th Cir. 2002)
(internal citations omitted). “The mere existence of a
scintilla of evidence in support of the plaintiff’s
position will be insufficient.” Anderson, 477
U.S. at 252. In other words, the nonmoving party cannot avoid
summary judgment by relying solely on conclusory allegations
that are unsupported by factual data. See Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the
opposition must go beyond the assertions and allegations of
the pleadings and set forth specific facts by producing
competent evidence that shows a genuine issue for trial.
See Celotex Corp., 477 U.S. at 324.
summary judgment, a court’s function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine issue for trial. See Anderson,
477 U.S. at 249. The evidence of the nonmovant is “to
be believed, and all justifiable inferences are to be drawn
in his favor.” Id. at 255. But if the evidence
of the nonmoving party is merely colorable or is not
significantly probative, summary judgment may be granted.
See Id . at 249–50.
Farm moves for summary judgment by arguing that
Riverport’s claims fail as a matter of law because
State Farm’s Policy with Spirals does not include
insurance coverage for DiMaria’s injuries sustained in
D&L’s shopping center parking lot. (State
Farm’s MSJ 2:1–6, 11:22–22:9, ECF No. 13);
(State Farm’s MSJ 6:24–17:5, ECF No. 22).
Riverport conversely moves for summary judgment by arguing
that the Policy covers DiMaria’s injuries based on both
the plain language of the Policy and surrounding evidence
that reveals the parties’ intent when obtaining the
Policy. (Riverport’s MSJ 10:7–11:15, ECF No. 25).
Riverport further argues that ...