United States District Court, D. Nevada
J. DAWSON UNITED STATES DISTRICT JUDGE.
the Court is defendant Geico Casualty Company's Partial
Motion to Dismiss (ECF No. 6) to which plaintiff Kara Walker
responded (ECF No. 9), and Geico replied (ECF No. 11). Also
before the Court is Geico's Alternative Motion to
Sever/Bifurcate and Stay Walker's Extracontractual Claims
(ECF No. 7). Walker also responded to that motion (ECF No.
10), and Geico replied (ECF No. 11).
Walker has sued her insurer, Geico, for payment of the
uninsured/underinsured motorist coverage in her policy after
she was injured in an accident with a third-party.
Walker's complaint alleged four causes of action: breach
of contract, contractual bad faith, tortious bad faith, and
unfair claims practices. The basis of Walker's claims is
that Geico exhibited bad faith by knowingly hiring a biased
physician to perform her independent medical evaluation.
According to Walker, Geico purposefully hired a doctor that
would disagree with her treatment decisions, undercut the
value of her damages, and justify Geico's delay or denial
of her claim. Geico has moved to dismiss all of Walker's
extracontractual claims, leaving alone her claim for breach
of contract. Geico argues that this case boils down to a
dispute over coverage, which is solely a contractual issue.
Geico also argues that Walker's claims fail because it
has acted reasonably-in good faith-throughout the claims
reviewed Walker's allegations in the light most favorable
to her, the Court finds that Walker has alleged facts to
support her tortious bad faith claim and her claim for
violations of Nevada's unfair claims practices act.
Although Geico is correct that a reasonable denial of
coverage defeats a bad faith claim, an insurer's
purposeful use of a biased or dishonest doctor to undermine a
claimant's recovery would breach the implied covenant of
good faith and fair dealing. At this stage, dismissal of
Walker's entire bad faith claim is unwarranted. However,
Walker has failed to adequately plead her contractual bad
faith claim because she simultaneously argues that Geico has
breached its contract. Thus, the Court dismisses only that
claim. As for Geico's request to sever and stay
Walker's extracontractual claims, the Court declines to
do so. Given the overlap between the claims, the Court finds
that its resources would be better spent litigating the
December 5, 2017, Kara Walker was the passenger in a vehicle
that was struck by a 1995 Ford F-150. Compl. 2, ECF No. 1.
Walker was hurt in the accident and promptly filed a
third-party claim against the driver of the F-150.
Id Walker then began treatment for her injuries.
Id As of May of 2019, Walker had allegedly incurred
over $60, 000 in medical bills and other damages. Id
Walker settled her claim with the adverse driver for his
policy limits, $15, 000. Id. $15, 000 did not cover
Walker's outstanding medical bills, so she filed a claim
against Geico, her own insurer, to access the
uninsured/underinsured motorist (“UIM”) coverage
in her policy. Id. That policy provided $100, 000 in
UIM coverage. Id
offered Walker $31, 014.64 to settle her claim, which she
refused. Id Geico then ordered an independent
medical evaluation (“IME”). Id at 3. The
insurer hired Dr. Firooz Mashhood to perform the IME.
Id Dr. Mashhood's examination found that Walker
“sustained ‘soft tissue injury to cervical and
thoracic spine secondary to minor impact.'”
Id Apparently, Dr. Mashhood's findings
conflicted with Walker's claimed injuries and provided
Geico a basis to undervalue her claim. Id Walker
believes that Geico purposefully assigned her IME to Dr.
Mashhood because it knew the doctor would disagree with
Walker's stated injuries. Id at 4. Walkers UIM
claim is still pending.
filed her complaint in April of 2019, in the Eighth Judicial
District Court of Nevada. Geico timely removed the action to
this Court. Pet. for Removal, ECF No. 1. Geico now moves to
dismiss each of Walker's causes of action except her
breach of contract claim.
Court may dismiss a plaintiff's complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A properly pleaded
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) (citations omitted).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. Thus, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter
to ‘state a claim for relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (citation
Iqbal, the Supreme Court clarified a two-step
approach district courts are to apply when considering
motions to dismiss. First, the Court accepts as true all
well-pleaded factual allegations in the complaint. Legal
conclusions or mere recitals of the elements of a cause of
action, on the other hand, do not receive the assumption of
truth. Id. at 678. Second, the Court considers
whether the factual allegations in the complaint allege a
plausible claim for relief. Id. at 679. A claim is
facially plausible when the complaint alleges facts that
allow the court to draw a reasonable inference that the
defendant is liable for the alleged misconduct. Id.
at 678. Further, where the complaint does not permit the
court to infer more than the mere possibility of misconduct,
the complaint has “alleged-but it has not show[n]-that
the pleader is entitled to relief.” Id. at 679
(internal quotation marks omitted). Thus, when the claims in
a complaint have not crossed the line from conceivable to
plausible, the complaint must be dismissed. Twombly,
550 U.S. at 570.
“[a]ll allegations of material fact in the complaint
are taken as true and construed in the light most favorable
to the non-moving party.” In re Stac Elecs. Sec.
Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (citation
brought four causes of action: (1) breach of contract; (2)
breach of the contractual duty of good faith and fair
dealing; (2) tortious breach of good faith and fair dealing;
and (4) unfair trade practices under NRS § 686A.310,
Nevada's unfair claims practices statute. Walker's
breach of contract claim survives because Geico has not
challenged it here. Mot. to Dismiss 3, ECF No. 6. Geico
challenges Walker's remaining claims, or ...