-RJJ Mendoza v. Met Life Auto and Home Insurance Agency, Inc., No. 2:2009cv01872 - Document 88 (D. Nev. 2011)
Court Description: ORDER Granting 58 Motion to Dismiss Third-Party Complaint, Denying 64 Motion to Join Jacob's Transportation as a Defendant, and Granting 74 Motion for Partial Summary Judgment. Signed by Chief Judge Robert C. Jones on 10/3/11. (Copies have been distributed pursuant to the NEF - ASB)
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-RJJ Mendoza v. Met Life Auto and Home Insurance Agency, Inc. Doc. 88 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 SHAWNA LYNN MENDOZA, 7 Plaintiff, 8 vs. 9 10 11 MET LIFE AUTO AND HOME INSURANCE AGENCY, INC., d.b.a. METROPOLITAN PROPERTY AND CASUALTY INSURANCE CO., 12 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) 2:09-cv-01872-RCJ-RJJ ORDER 13 14 This case arises out of Plaintiff Shawna Lynn Mendoza’s automobile collision with a hit- 15 and-run driver. Plaintiff’s insurance company, Defendant Met Life Auto & Home Insurance 16 Agency, Inc. (“Met Life”) denied Plaintiff’s claim under her uninsured motorist (“UM”) policy 17 in part, but accepted the claim in part. Several motions are pending before the Court. First, 18 Third-party Defendant Jacob Transportation Services, LLC (“Jacob”) has moved to dismiss the 19 Third-party Complaint. Second, Met Life has moved to join Jacob as a Defendant. Third, 20 Plaintiff has moved for partial offensive summary judgment. For the reasons given herein, the 21 Court grants Jacob’s motion, denies Met Life’s motion, and grants Plaintiff’s motion. 22 I. 23 FACTS AND PROCEDURAL HISTORY On or about December 18, 2007, Plaintiff Shawna Lynn Mendoza was the victim of a hit- 24 and-run collision. (Compl. ¶ 6, Aug. 24, 2009, ECF No. 34-1). At the time of the collision, 25 Plaintiff held an insurance policy with Defendant, policy number 497524763 (“the Policy”), Dockets.Justia.com 1 which included uninsured motorist (“UM”) coverage. (Id. ¶ 7). On October 28, 2008, Plaintiff 2 demanded that Defendant Met Life Auto & Home Insurance Agency, Inc. (“Met Life”) pay her 3 the UM policy limit of $100,000. (Id. ¶ 9). Plaintiff rejected Defendant’s counteroffer of $6700. 4 (See id. ¶ 10; Opp’n Mot. Summ. J. 3:10–11, Aug. 23, 2010, ECF No. 29). 5 Plaintiff sued Defendant in state court. The Amended Complaint (“AC”) lists three 6 causes of action: (1) Breach of Contract; (2) Breach of the Covenant of Good Faith and Fair 7 Dealing; and (3) Unfair Claims Practices Under Nevada Revised Statutes (“NRS”) Section 8 686A.310. Defendant removed. The Court denied Plaintiff’s motion to remand, rejecting 9 Plaintiff’s argument that under the “direct action” provision in 28 U.S.C. § 1332(c)(1) a 10 defendant insurance company should be considered a citizen of the same state as its own insured 11 who sues it. (See Order, Apr. 21, 2010, ECF No. 19 (ruling that the direct action provision of the 12 statute applies to cases where a plaintiff sues a tortfeasor’s insurance company, not his own 13 insurance company)). Defendant filed a motion for summary judgment or to amend the answer 14 to plead a third-party complaint against Jacob, whose driver Plaintiff suspected of hitting her. 15 The Court denied the motion for summary judgment but granted leave for Defendant to amend 16 its answer to plead a third-party complaint against Jacob. (See Order, Feb. 4, 2011, ECF No. 39). 17 Defendant amended its answer and included the Third-party Complaint (“TPC”). Jacob has now 18 moved to dismiss the TPC under the statute of limitations, Defendant has moved to join Jacob as 19 a Defendant, and Plaintiff has moved for partial offensive summary judgment on the issue of UM 20 coverage. 21 II. LEGAL STANDARDS 22 A. 23 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 24 claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of 25 what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 Dismissal Page 2 of 8 1 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 2 that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 3 12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720 4 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for 5 failure to state a claim, dismissal is appropriate only when the complaint does not give the 6 defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell 7 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is 8 sufficient to state a claim, the court will take all material allegations as true and construe them in 9 the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th 10 Cir. 1986). The court, however, is not required to accept as true allegations that are merely 11 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 12 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action 13 with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation 14 is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 15 550 U.S. at 555). 16 “Generally, a district court may not consider any material beyond the pleadings in ruling 17 on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the 18 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner 19 & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents 20 whose contents are alleged in a complaint and whose authenticity no party questions, but which 21 are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) 22 motion to dismiss” without converting the motion to dismiss into a motion for summary 23 judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule 24 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay 25 Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court Page 3 of 8 1 considers materials outside of the pleadings, the motion to dismiss is converted into a motion for 2 summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th 3 Cir. 2001). 4 B. 5 A court must grant summary judgment when “the movant shows that there is no genuine Summary Judgment 6 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 7 Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson 8 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if 9 there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See 10 id. A principal purpose of summary judgment is “to isolate and dispose of factually unsupported 11 claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). In determining summary 12 judgment, a court uses a burden-shifting scheme: 13 14 15 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. 16 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) 17 (citations and internal quotation marks omitted). In contrast, when the nonmoving party bears 18 the burden of proving the claim or defense, the moving party can meet its burden in two ways: 19 (1) by presenting evidence to negate an essential element of the nonmoving party’s case; or (2) 20 by demonstrating that the nonmoving party failed to make a showing sufficient to establish an 21 element essential to that party’s case on which that party will bear the burden of proof at trial. 22 See Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden, 23 summary judgment must be denied and the court need not consider the nonmoving party’s 24 evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970). 25 If the moving party meets its initial burden, the burden then shifts to the opposing party Page 4 of 8 1 to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio 2 Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing 3 party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 4 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 5 versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 6 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment 7 by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. 8 List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions 9 and allegations of the pleadings and set forth specific facts by producing competent evidence that 10 shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. 11 At the summary judgment stage, a court’s function is not to weigh the evidence and 12 determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477 13 U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are 14 to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely 15 colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50. 16 III. 17 ANALYSIS A. Jacob’s Motion to Dismiss the Third-party Complaint and Met Life’s Motion to Join Jacob as a Defendant 18 The Nevada Supreme Court has held in no uncertain terms that when the insurer of an 19 injured party brings a subrogation action against the tortfeasor, the action sounds in tort, not in 20 contract, and the two-year statute of limitations applicable to personal injury actions applies: 21 22 23 Nevada’s 2-year statute is applicable in [such a] case and . . . commences to run from the date the injuries of the insured were incurred. To rule otherwise would mean that an insurance company could withhold payment under the uninsured motorist policy for an unlimited period and then after payment seek recovery as the subrogee of its insured. Such practice would delay the settlement and disposition of such cases. 24 State Farm Mut. Auto. Ins. Co. v. Wharton, 495 P.2d 359, 362 (Nev. 1972). This is so because 25 the relationship between the victim’s insurer and the tortfeasor is derivative of the relationship Page 5 of 8 1 between the tortfeasor and the victim, not of the contractual relationship between the insurer and 2 the victim, a relationship in which the tortfeasor has no part. See id. at 361 (citing Hartford Ins. 3 Grp. v. Statewide Appliances, Inc., 484 P.2d 569, 571 (Nev. 1971) (citing Auto. Ins. Co. v. Union 4 Oil Co., 193 P.2d 48, 50–51 (Cal. 1948))). The Wharton case was also an uninsured motorist 5 case, see id. at 360, although the general rule announced therein would apply in the present case 6 even if it had not been. 7 Here, the collision is alleged to have occurred on December 18, 2007. (See Am. Compl. 8 ¶ 6, Aug. 24, 2009, ECF No. 1-2). Defendant became aware of the collision the next day. 9 (See Mot. 3, July 28, 2010, ECF No. 24). Defendant requested leave to file the TPC against 10 Jacob over two years later on July 28, 2010. (See Mot., July 28, 2010, ECF No. 24). The 11 subrogation claim is therefore time-barred, and the Court both grants the motion to dismiss and 12 denies the motion to join Jacob as a Defendant for the same reason. 13 Defendant attempts to characterize its claims as “contribution” or “equitable indemnity,” 14 but the claim is in reality for subrogation. First, contribution is a theory under which an active 15 tortfeasor compels another active tortfeasor to pay the latter’s fair share of the damage where a 16 plaintiff has recovered or attempted to recover the entire amount against the first tortfeasor. See, 17 e.g., Saylor v. Arcotta, 225 P.3d 1276, 1278 (Nev. 2010) (discussing a contribution claim by an 18 allegedly negligent automobile driver against an allegedly negligent surgeon, both of whom may 19 have caused part of the harm). Here, Defendant is not alleged to be a jointly active tortfeasor 20 with Jacob under any party’s theory of the case, and the theory of contribution is therefore 21 inapplicable. 22 Second, equitable indemnity is a theory similar to contribution under which a passive 23 tortfeasor can recover from an active tortfeasor any measure of damages for which the former 24 has been made liable to the plaintiff based on the latter’s tortious acts. See, e.g., Black & Decker 25 (U.S.), Inc. v. Essex Grp., Inc., 775 P.2d 698, 699 (Nev. 1989) (finding Black & Decker entitled Page 6 of 8 1 to equitable indemnity from Essex where Black & Decker was strictly liable to the plaintiff due 2 to its position in the stream of commerce but Essex was the actively negligent manufacturer). 3 Here, Defendant is not alleged to be a passive tortfeasor liable to Plaintiff based upon the 4 collision for which Jacob is allegedly actively liable, and the theory of equitable indemnity is 5 therefore inapplicable. 6 The applicable theory in this case is subrogation. “Subrogation is ‘[t]he principle under 7 which an insurer that has paid a loss under an insurance policy is entitled to all the rights and 8 remedies belonging to the insured against a third party with respect to any loss covered by the 9 policy.’” Arguello v. Sunset Station, Inc., 127 Nev. Adv. Op. No. 29 (June 2, 2011) (quoting 10 Black’s Law Dictionary 1563–64 (9th ed. 2009)). “[A]n insurer that pays its insured in full for 11 claimed losses is subrogated by operation of law to the rights, if any, which the insured may 12 have had against the tortfeasor before payment was made.” Duboise v. State Farm Mut. Auto. 13 Ins. Co., 619 P.2d 1223, 1224 (Nev. 1980). Defendant is not alleged to have any liability for the 14 collision itself, whether active (contribution) or passive (equitable indemnity), but rather has 15 simply been subrogated to Plaintiff’s claim by operation of law by virtue of its payment to 16 Plaintiff for losses caused by the alleged tortfeasor, Jacob. The two-year statute of limitations on 17 the subrogated negligence claim ran before Defendant requested leave to file the TPC. See 18 Wharton, 495 P.2d at 362.1 19 B. 20 Plaintiff asks the Court to rule that Defendant has waived the right to argue that the UM Plaintiff’s Motion for Partial Summary Judgment 21 provision of the Policy does not apply. The Court grants the motion in this respect. As noted in 22 the order denying summary judgment to Defendant, Defendant made a written admission, 23 without reserving its rights to argue against coverage, that the value of the claim was greater than 24 1 25 The public policy of Nevada prevents the subrogation of personal injury claims to automobile insurers, so the TPC would fail on the merits even if not time-barred, except perhaps as to property damage. See Maxwell v. Allstate Ins. Cos., 728 P.2d 812, 814–15 (Nev. 1986). Page 7 of 8 1 zero. (See Letter, Apr. 7, 2009, ECF No. 29-5 (“As requested, please find enclosed our check in 2 the amount of $6,700 as the undisputed value of the pending Uninsured Motorist claim for your 3 client noted above.” (emphasis added))). Defendant thereby acknowledged the claim as valid by 4 attempting to pay Plaintiff $6700 under the UM provision; it simply disputed the extent of her 5 damages. 6 Plaintiff also asks the Court to rule that the UM provision applies to the collision at issue. 7 The Court grants the motion in this respect, as well. The Court already made such a ruling in 8 substance, because the interpretation of a contract is a matter of law for the Court, and the Court 9 ruled that the hit-and-run vehicle in this case was not “known” under the policy when it denied 10 summary judgment to Defendant. Plaintiff was not formally granted summary judgment on the 11 issue at that time, because she had not yet so moved. She has so moved now, and the Court 12 grants the motion. 13 14 15 16 17 18 19 CONCLUSION IT IS HEREBY ORDERED that the Motion to Dismiss Third-party Complaint (ECF No. 58) is GRANTED. IT IS FURTHER ORDERED that the Motion to Join Jacob’s Transportation as a Defendant (ECF No. 64) is DENIED. IT IS FURTHER ORDERED that the Motion for Partial Summary Judgment (ECF No. 74) is GRANTED. 20 IT IS SO ORDERED. 21 Dated this 3rd day of October, 2011. 22 23 24 _____________________________________ ROBERT C. JONES United States District Judge 25 Page 8 of 8
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