United States District Court, D. Nevada
before the court is plaintiff National Fire & Marine
Insurance Company's (“National Fire”) first
motion to dismiss (ECF No. 28) defendant Steven Holper's
counterclaims (ECF No. 23). Holper filed a response. (ECF No.
38). National Fire did not file a reply, and the time for
doing so has passed.
before the court is National Fire's first motion for
summary judgment (ECF No. 29) on Holper's counterclaims
(ECF No. 23). Holper filed a response. (ECF No. 38). National
Fire did not file a reply, and the time for doing so has
before the court is National Fire's second motion to
dismiss (ECF No. 42) Holper's counterclaims (ECF No. 41).
Holper filed a response (ECF No. 47), to which National Fire
replied (ECF No. 65).
before the court is National Fire's second motion for
summary judgment (ECF No. 43) on Holper's counterclaims
(ECF No. 41). Holper filed a response (ECF No. 47), to which
National Fire replied (ECF No. 65).
before the court is National Fire's motion for summary
judgment on all of its claims. (ECF No. 44).
Defendant/intervenor Scott Hampton and Holper both filed
responses (ECF Nos. 48, 55), to which National Fire replied
(ECF No. 65).
case involves a dispute over the rights and obligations owed
by National Fire to Holper under a professional liability
insurance policy. (ECF No. 41). The following facts have been
alleged by the parties:
Holper's insurance policy
purchased a professional liability insurance policy
underwritten by National Fire, effective from July 25, 2017,
to July 25, 2018 (the “policy”). Id. The
policy provided that National Fire would pay, on Holper's
behalf, for all loss arising from a covered healthcare event,
and would defend Holper if claims for potentially covered
losses were filed against him. (ECF No. 45). This dispute
arises from National Fire's contention that it has no
duty to defend or indemnify Holper with regard to claims
filed against him in a separate wrongful death lawsuit
brought by the estate of Diana Hampton. (ECF Nos. 35, 41).
Related criminal prosecution and wrongful death suit
February 7, 2018, Holper was indicted on several felony
charges including unlawful distribution of a controlled
substance. (ECF No. 41); United States v. Holper,
No. 2:18-cr-00037-JAD-NJK, ECF No. 1 (“related criminal
action”). Count two of the indictment, to which Holper
pleaded guilty, was for unlawful distribution of a controlled
substance to “Patient A, ” who was a former
Henderson municipal judge named Diana Hampton. (ECF No. 41);
Holper, No. 2:18-cr-00037-JAD-NJK, ECF No. 1. On
March 13, 2016, Hampton was found dead in her home following
an overdose of the opioid fentanyl. (ECF No. 45 ex. 2).
December 12, 2018, Holper pleaded guilty to count two of the
indictment by way of a plea agreement, which states in
relevant part that Holper intentionally distributed fentanyl
“outside the usual course of his professional practice
and without a legitimate medical purpose.”
Holper, No. 2:18-cr-00037-JAD-NJK, ECF No. 50.
Hampton's death, the estate of Hampton
(“estate”) brought a wrongful death suit against
Holper on February 27, 2018. (See ECF Nos. 44, 55)
(“wrongful death action”).
National Fire's defense and indemnity obligations
about March 6, 2018, Holper provided notice of the wrongful
death action to National Fire, who is presently providing a
defense to Holper under a reservation of rights dated April
26, 2018. (ECF Nos. 44, 45 ex. 4, 55). National Fire has been
paying for Holper's attorney's fees and other costs
of his defense in the wrongful death action. (ECF No. 44,
Fire and Holper scheduled an examination under oath
(“EUO”) for June 14, 2018, which was ultimately
rescheduled to July 6, 2018. (ECF Nos. 44, 55). On June 11,
2018, Holper requested that the EUO be continued until after
resolution of the related criminal action, which National
Fire denied. (ECF No. 44). Holper ultimately failed to attend
the EUO meeting. (ECF No. 55).
20, 2018, National Fire filed its original complaint in this
action. (ECF No. 1). On January 16, 2019, National Fire filed
its first amended complaint (ECF No. 21), and on March 14,
2019, it filed its second amended complaint, alleging breach
of contract and seeking declaratory relief (ECF No. 35).
March 28, 2019, Holper filed three counterclaims against
National Fire. (ECF No. 41). The counterclaims allege the
following causes of action: (1) breach of contract; (2)
breach of the implied covenant of good faith and fair
dealing; and (3) four separate violations of NRS 686A.310.
National Fire moves for summary judgment on both its claims
and Holper's counterclaims. (ECF Nos. 43, 44) . . . . . .
. . .
Summary judgment standard
Federal Rules of Civil Procedure allow summary judgment 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 a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). 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).
purposes of summary judgment, disputed factual issues should
be construed in favor of the nonmoving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to withstand summary judgment, the nonmoving party
must “set forth specific facts showing that there is a
genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. Where 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).
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). The opposing party need not establish a dispute
of material fact conclusively in its favor. See T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,
809 F.2d 626, 631 (9th Cir. 1987). 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.” Id.
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, 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 a
genuine dispute exists for trial. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). 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.
may seek declaratory relief as to the rights and obligations
arising under a contract pursuant to NRS 30.040(1), which
Any person interested under a deed, written contract or other
writings constituting a contract, or whose rights, status or
other legal relations are affected by a statute, municipal
ordinance, contract or franchise, may have determined any
question of construction or validity arising under the
instrument, statute, ordinance, contract or franchise ...