United States District Court, D. Nevada
INTERIOR ELECTRIC INCORPORATED NEVADA, a domestic corporation, Plaintiff,
T.W.C. CONSTRUCTION, INC., a Nevada corporation; TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a Connecticut corporation; MATTHEW RYBA, an individual; GUSTAVO BAQUERIZO, an individual; CLIFFORD ANDERSON, an individual; POWER UP ELECTRIC COMPANY, a Nevada limited liability company; PROLOGIS, L.P., a Delaware limited partnership; AML PROPERTIES, INC., a Nevada corporation; AML DEVELOPMENT 3, LLC, a Nevada limited liability corporation; LAPOUR PARTNERS, INC., a Nevada Corporation; DON FISHER, an individual; PHILCOR T.V. & ELECTRONIC LEASING, INC., a Nevada corporation, dba NEDCO; QED, INC., a Nevada corporation; TURTLE & HUGHES, Inc., a New Jersey corporation; DOES I-X, inclusive; and ROE CORPORATIONS I-X, inclusive, Defendants.
REPORT AND RECOMMENDATION
FERENBACH UNITED STATES MAGISTRATE JUDGE
the court is Defendant Philcor TV & Electronic Leasing,
Inc. D/B/A Nedco Supply's Motion for Determination of
Good Faith Settlement. (ECF No. 163). A hearing was held on
November 22, 2019. (ECF NO. 164). The Court canvassed and
heard representations from the parties. Id.
Defendants T.W.C. Construction, Inc. Travelers Casualty and
Surety Company of America, Matthew Ryba, and Mark Wilmer
filed a Notice of Non-Opposition to Defendant Philcor TV
& Electronic Leasing, Inc. D/B/A Nedco Supply's
Motion for Court Determination of Good Faith Settlement (ECF
case involves a larger dispute between Interior Electric and
TWC, but as to Nedco's involvement, Interior Electric
purchased supplies from Nedco for use on tenant improvements
on a Wal-Mart store. On February 6, 2017, Nedco received a
pre-payment in the amount of $392, 390.06 in the form of a
joint check from Interior Electric and T.W.C. Construction
Inc. (“TWC”), the general contractor on the
project. Per direction from representatives of Interior
Electric, Nedco supplied materials for the project, including
gift cards in the total amount of $20, 000, in the total
aggregate amount of $188, 775.28. That left a balance on
Interior Electric's account with Nedco of $203, 614.78.
to Nevada Revised Statute §17.245, “[w]hen a
release or a covenant not to sue or not to enforce judgment
is given in good faith to one of two or more persons liable
in tort for the same injury or the same wrongful death: (a)
It does not discharge any of the other tortfeasors from
liability for the injury or wrongful death unless its terms
so provide, but it reduces the claim against the others to
the extent of any amount stipulated by the release or the
covenant, or in the amount of the consideration paid for it,
whichever is the greater; and (b) It discharges the
tortfeasor to whom it is given from all liability for
contribution and for equitable indemnity to any other
tortfeasor.” The court in The Doctors Co. v.
Vincent, stated that, as evidenced by the ruling In re
MGM Grand Hotel Fire Litigation, “the Nevada Federal
District Court embrace[s] the following factors in evaluating
good-faith issues under NRS 17.245:  [t]he amount paid in
settlement,  the allocation of the settlement proceeds
among plaintiffs,  the insurance policy limits of settling
defendants,  the financial condition of settling
defendants, and  the existence of collusion, fraud or
tortious conduct aimed to injure the interests of
non-settling defendants.” The Doctors Co. v.
Vincent, 120 Nev. 644, 651-52, 98 P.3d 681, 686
(2004)(quoting In re MGM Grand Hotel Fire
Litigation, 570 F.Supp. 913, 927 (D.Nev.1983)). The
court also stated that these factors are not exhaustive, and
that the determination of good faith settlement “should
be left to the discretion of the trial court based upon all
relevant facts available...” Id. at 652
(quoting Velsicol Chemical v. Davidson, 107 Nev.
356, 360, 811 P.2d 561, 563 (1991)).
considering the factors outlined above, the Court recommends
granting Defendant Philcor TV & Electronic Leasing, Inc.
D/B/A Nedco Supply's Motion for Determination of Good
Faith Settlement. (ECF No. 163).
opposition has been filed. This constitutes consent to the
granting of the motion under Local Rule 7-2(d), which states
that “[t]he failure of an opposing party to file point
and authorities in response to any motion shall constitute a
consent to the granting of the motion.” The Court has
reviewed the instant motion and finds that the proposed
settlement satisfies NRS § 17.245's good-faith
requirement. The court's finding is predicated on three
of the MGM factors. With regard to the first factor, Nedco
proposed a fair compensation in the amount of $223, 614.78 to
Interior Electric. (ECF No. 163 at 4). The compensation,
which is “the prime badge” for determining good
faith, see MGM Grand Hotel Fire Litig., 570 F.Supp.
at 927, represents a fair and reasonable amount since this
proposed settlement amount will help avoid substantial future
litigation costs that will be incurred in preparation for
regard to the second factor, the settlement amount was paid
entirely in cash to Interior Electric as Nedco was not
covered by insurance. All parties agreed Nedco would continue
to cooperate in the litigation with Interior Electric and
would, within ten (10) calendar days' notice, provide
informal witness interviews or statements, or formal
testimony, and provide all information or documents
informally requested by Interior Electric. Nedco has fully
complied with these terms and has agreed to continue to
comply with those terms. Additionally, there is no evidence
the aforementioned settlement between Nedco and Interior
Electric is collusive or fraudulent. Id. at 4.
See MGM Grand Hotel Fire Litig., 570 F.Supp. at 927.
the propose settlement agreement was apparently reached in
good faith because collusion, fraud, and other tortious
conduct aimed to injure the interests of non-settling
defendants is absent. MGM Grand Hotel Fire Litig,
570 F.Supp. at 927. The proposed settlement was reached after
settlement negotiations. (ECF No. 163 at 4).
on the foregoing and all of the relevant facts surrounding
the settlement, the undersigned finds that the settlement was
reached in good faith.
and for good cause shown, IT IS HEREBY RECOMMENDED that is
Defendant Philcor TV & Electronic Leasing, Inc. D/B/A
Nedco Supply's Motion for Determination of ...