United States District Court, D. Nevada
BRETT R. PRIMACK, Plaintiff
OHIO SECURITY INSURANCE COMPANY and LIBERTY MUTUAL INSURANCE COMPANY, Defendants
ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL
SUMMARY JUDGMENT [ECF NO. 43]
P. GORDON UNITED STATES DISTRICT JUDGE.
an uninsured motorist (UIM) insurance coverage dispute.
Plaintiff Brett Primack sues his insurers, Ohio Security
Insurance Company (Ohio Security) and Liberty Mutual
Insurance Company (Liberty Mutual) for breach of contract,
bad faith, and unfair claims practices following an October
19, 2014 car accident in which he claims he was seriously
injured. The tortfeasor's insurer paid its policy limits
of $15, 000 and the defendants paid $5, 000 in medical
payments. Primack then requested UIM coverage. To date, the
defendants have not paid him anything on the UIM claim.
defendants move for summary judgment on Primack's claims
for bad faith, unfair claims handling practices, and certain
types of damages. They do not move for judgment on the
breach of contract claim, so that will remain pending.
a hearing on this matter on October 30, 2019. ECF No. 50. At
that hearing, I advised the parties that I would consider the
defendants' summary judgment motion despite it being
filed past the dispositive motion deadline. I granted the
motion as to (1) past and future loss of household services,
(2) limitation of occupational activity, and (3) loss of
earning capacity because Primack conceded he has no evidence
to support these special damages. ECF No. 45 at 4 n.1. At the
hearing, Primack requested clarification as to whether this
ruling precluded Primack from testifying about these matters
in relation to general damages. I took that matter under
advisement. I now clarify that my ruling applies only to
special damages because the defendants have not moved to
preclude Primack from discussing how his injuries have
affected his ability to work or perform household services as
that may relate to general damages.
granted the defendants' motion as to damages for future
physical therapy and psychological care because Primack did
not respond to that portion of the defendants' motion and
thus pointed to no evidence in support of these damages. At
the hearing, Primack inquired whether that precluded damages
for gym memberships and related physical training expenses. I
took that matter under advisement. I now clarify that my
ruling about future physical therapy and psychological care
has no impact on gym memberships or training expenses because
the defendants did not move for summary judgment as to those
types of damages.
I took under advisement the issues of whether the defendants
are entitled to summary judgment on the merits of
Primack's bad faith and unfair practices claims, as well
as whether Liberty Mutual is a proper party to the case. The
parties are familiar with the facts so I do not repeat them
here except where necessary. I grant the defendants'
motion for summary judgment on Primack's bad faith and
unfair practices claims because Primack has not pointed to
evidence of damages for either of these claims. Because the
only remaining claim is for breach of contract and Liberty
Mutual is not a party to the contract, I grant the
defendants' motion as to defendant Liberty Mutual.
party seeking damages has the burden of proving the fact that
he was damaged and the amount thereof.” Gibellini
v. Klindt, 885 P.2d 540, 543 (Nev. 1994). In their
motion for summary judgment, the defendants argued that
Primack has no evidence of causation or damages for his bad
faith and unfair practices claims. The defendants thus
satisfied their initial burden on summary judgment.
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001) (en banc) (“When the nonmoving party has the
burden of proof at trial, the moving party need only point
out that there is an absence of evidence to support the
nonmoving party's case.” (quotation omitted)).
the defendants carried their initial burden, Primack could
“not rest upon the mere allegations or denials of [his]
pleading, ” but was required to “provide
affidavits or other sources of evidence that set forth
specific facts showing that there is a genuine issue for
trial.” Id. (quotation omitted). Primack has
not done so. His opposition does not address causation or
damages. And the only evidence he presents are the reports
and testimony of his expert, Scott Glogovac. ECF No. 46. But
Glogovac disclaims being a damages expert and he did not
assess damages. Id. at 93 (“I am not a damages
expert in this case, I'm a claim handling standards
expert in this case. So I did not sit down and attempt to
assess the damages that Mr. Primack could present at trial in
this case. I wasn't hired to do that and I did not do
that.”). At the hearing, I inquired about damages but
Primack's counsel did not identify evidence that would
raise a genuine dispute about damages caused by either the
defendants' alleged bad faith or unfair practices. I
therefore grant the defendants' motion on these two
claims because Primack has failed to meet his burden at
summary judgment on essential elements of his claims.
evidence shows Ohio Security was the contracting party. ECF
No. 43-16 at 3 (contract identifying that coverage is
provided by Ohio Security). Although there is a
“Liberty Mutual Insurance” logo on the policy,
there is no evidence that this means the entity Liberty
Mutual Insurance Company was a party to the contract. Because
there is no evidence that Liberty Mutual was a party to the
contract, and because the only remaining claim is one for
breach of contract, I grant the defendants' motion for
summary judgment as to Liberty Mutual.
THEREFORE ORDER that the defendants' motion for partial
summary judgment (ECF No. 43) is GRANTED as
set forth at the hearing and in this order. Liberty ...