Tyson v. Mid-Century Insurance Company, No. 2:2011cv00199 - Document 31 (D. Nev. 2013)
Court Description: ORDER Granting 21 Defendant Mid-Century Insurance Company's Motion for Summary Judgment. IT IS FURTHER ORDERED that 25 Plaintiff Tyson's Motion for Leave to File Supplement in Support of her Opposition is GRANTED. Clerk is instructed to close this case. Signed by Judge Miranda M. Du on 2/22/13. (Copies have been distributed pursuant to the NEF - EDS)
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Tyson v. Mid-Century Insurance Company Doc. 31 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 YOLANDA TYSON, Plaintiff, 10 ORDER v. 11 12 Case No. 2:11-cv-00199-MMD-NJK MID-CENTURY INSURANCE COMPANY, Defendant. 13 (Def.’s Motion for Summary Judgment – dkt. no. 21; Plf.’s Motion for Leave to File Supplement – dkt. no. 25) 14 15 I. SUMMARY 16 Before the Court are Defendant Mid-Century Insurance Company’s Motion for 17 Summary Judgment (dkt. no. 21) and Plaintiff Yolanda Tyson’s Motion for Leave to File 18 Supplement in Support of her Opposition (dkt. no. 25). 19 below, the Motions are granted. 20 II. For the reasons discussed BACKGROUND 21 On January 21, 2007, Plaintiff Yolanda Tyson was a passenger in a vehicle 22 owned and driven by Vincent A. Marrero in Las Vegas, Nevada. At the time, Defendant 23 Mid-Century Insurance Company (“Mid-Century”) insured Marrero’s car pursuant to a 24 2006 policy (“Policy”) it entered into with Marrero. 25 underinsured motorist liability limit. On that day, Tyson and Marrero were involved in an 26 automobile accident with another driver, Kyle Bradshaw. Due to the injuries sustained 27 by Tyson, Bradshaw’s insurer, State Farm Mutual Automobile Insurance Company, 28 made a $100,000 payment to Tyson representing its policy limit. After submitting a claim The Policy carried a $250,000 Dockets.Justia.com 1 for underinsured benefits, Mid-Century paid Tyson $150,000 the sum equal to its 2 liability limit minus the benefits paid by State Farm. 3 On September 30, 2010, Tyson filed this suit in state court seeking compensation 4 from Mid-Century equal to the full underinsured motorist liability limit, plus incidental 5 damages. (See dkt. no. 7.) Mid-Century timely removed to this Court (dkt. no. 1), and 6 now seeks summary judgment on Tyson’s claim (dkt. no. 25). 7 III. LEGAL STANDARD 8 The purpose of summary judgment is to avoid unnecessary trials when there is no 9 dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 10 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 11 the discovery and disclosure materials on file, and any affidavits “show there is no 12 genuine issue as to any material fact and that the movant is entitled to judgment as a 13 matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” 14 if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for 15 the nonmoving party and a dispute is “material” if it could affect the outcome of the suit 16 under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 17 Where reasonable minds could differ on the material facts at issue, however, summary 18 judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 19 1995). “The amount of evidence necessary to raise a genuine issue of material fact is 20 enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at 21 trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l 22 Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary 23 judgment motion, a court views all facts and draws all inferences in the light most 24 favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 25 F.2d 1100, 1103 (9th Cir. 1986). 26 The moving party bears the burden of showing that there are no genuine issues 27 of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In 28 order to carry its burden of production, the moving party must either produce evidence 2 1 negating an essential element of the nonmoving party’s claim or defense or show that 2 the nonmoving party does not have enough evidence of an essential element to carry its 3 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 4 F.3d 1099, 1102 (9th Cir. 2000). 5 requirements, the burden shifts to the party resisting the motion to “set forth specific 6 facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The 7 nonmoving party “may not rely on denials in the pleadings but must produce specific 8 evidence, through affidavits or admissible discovery material, to show that the dispute 9 exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do 10 more than simply show that there is some metaphysical doubt as to the material facts.” 11 Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The 12 mere existence of a scintilla of evidence in support of the plaintiff’s position will be 13 insufficient.” Anderson, 477 U.S. at 252. 14 IV. Once the moving party satisfies Rule 56’s DISCUSSION 15 The success of this Motion depends on the choice of law that governs Tyson’s 16 dispute. Mid-Century seeks judgment on the basis that California law governs resolution 17 of Tyson’s claim, and that Mid-Century lawfully offset from its payment State Farm’s 18 benefits based on California’s insurance code. In her Response, Tyson claims that 19 Marrero is a Nevada resident, and that the collision’s occurrence in Nevada necessitates 20 that Nevada law apply. In her view, Nevada law recognizes an obligation for the insurer 21 to compensate the injured in full notwithstanding any payments to the injured party from 22 the tortfeasor compensation she seeks from this suit. 23 A. 24 “Federal courts sitting in diversity must apply ‘the forum state’s choice of law rules 25 to determine the controlling substantive law.’” Fields v. Legacy Health Sys., 413 F.3d 26 943, 950 (9th Cir. 2005) (quoting Patton v. Cox, 276 F.3d 493, 495 (9th Cir. 2002)). 27 Nevada employs the “substantial relationship” test for determining what state’s law 28 applies in a contract case. Consol. Generator-Nevada, Inc. v. Cummins Engine Co., Choice of Law 3 1 Inc., 971 P.2d 1251, 1253 (Nev. 1998). Five factors govern this analysis: (1) the place of 2 contracting; (2) the place of negotiation of the contract; (3) the place of performance; (4) 3 the location of the subject matter of the contract; and (5) the domicile, residence, 4 nationality, place of incorporation and place of business of the parties. Id. at 1253-54. 5 In this case, the first, second, third, and fourth factors weigh in favor of California 6 law. Marrero contracted with Mid-Century in California. The contract was negotiated in 7 California through a California-licensed insurance agent. (See dkt. nos. 21-D and 21-2.) 8 The place of performance was California, since Marrero contracted with a California 9 insurance agent and provided a California home and work address. (See dkt. no. 21-C.) 10 The subject matter of the contract Marrero’s vehicle was licensed in California, and 11 was garaged in California. (See id. at 2 and dkt. no. 21-B); see Sotirakis v. United 12 Servs. Auto Ass’n, 787 P.2d 788, 790-91 (Nev. 1990) (applying five factors to insurance 13 dispute to hold that California law governs dispute arising out of a California resident’s 14 policy issued in California). 15 With respect to the fifth factor, Mid-Century is a California corporation. 16 factual record presented to the Court demonstrates that Marrero was also a California 17 resident at the time he executed the Policy. The fifth factor thus weighs in favor of 18 applying California law. 19 appended to her Response a signed declaration in which she attests to the Nevada 20 residency of Marrero. Mid-Century challenges the admissibility of the declaration on a 21 number of grounds, including that Tyson’s failure to comply with Fed. R. Civ. P. 26(a) or 22 (e) prohibits her from appending the declaration in support of her opposition. The Court 23 agrees. “If a party fails to provide information or identify a witness as required by Rule 24 26(a) or (e), the party is not allowed to use that information or witness to supply evidence 25 on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is 26 harmless.” Fed. R. Civ. P. 37(c)(1). Tyson does not dispute her failure to comply with 27 Rule 26, and instead points to her declaration as sufficient evidence to raise a genuine 28 issue of material fact as to the application of California law. Tyson further filed a Motion Nevertheless, Tyson disputes Marrero’s residency. 4 The Tyson 1 for Leave to File Supplement in Support of her Opposition in which she attempted to 2 object to Mid-Century’s arguments about her declaration’s inadmissibility. (See dkt. no. 3 25.) In her Motion, she again does not dispute her failure to comply with Rule 26, 4 instead arguing only that her declaration is not hearsay and should be admitted on 5 equitable reasons.1 In light of the foregoing, she has failed to demonstrate that her 6 noncompliance with Rule 26’s disclosure rules is substantially justified or is harmless. 7 See, e.g., Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 8 2011) (exclusion justified in light of party’s failure to comply with Rule 26 and failure to 9 argue that non-disclosure was justified or harmless). The Court will not ignore such a 10 violation of cardinal discovery procedure. As a result, Tyson fails to present any facts to 11 disturb the Court’s conclusion that California law applies to this dispute. 12 But even were Marrero to be a Nevada resident at the time of the injury (contrary 13 to the stated terms of the Policy he entered into), and even were his car driven primarily 14 in Nevada, the balance of the choice of law factors weighs in favor of applying California 15 law. The Policy evidences an expectation that favors the application of California law. 16 See Williams v. United Servs. Auto. Ass’n, 849 P.2d 265, 266 (Nev. 1993) (holding that 17 California law applied to a dispute arising out of a Nevada automobile accident where 18 the insurance policy was executed in California between California insurer and California 19 resident). It would be unjust to succumb Mid-Century to Nevada law in light of Marrero’s 20 apparent failure to provide accurate information regarding his residency status. That he 21 agreed to pay California rates for an insurance policy to cover his California-licensed and 22 garaged car weighs in favor of applying California law to this dispute, notwithstanding 23 Marrero’s Nevada residency. See McKeeman v. Gen. Am. Life Ins. Co., 899 P.2d 1124, 24 1126-27 (Nev. 1995) (applying California law to insurance dispute involving Nevada 25 resident where insurer obtained the policy from a California agent and listed a California 26 27 28 The Court reviewed the substance of Tyson’s Motion, as well as Mid-Century’s timely Response. Tyson’s Motion is thus granted. 1 5 1 license as his address). Tyson’s argument that this result would violate a strong Nevada 2 public policy falls on deaf ears for the reasons articulated by the Nevada Supreme Court 3 in Williams: Nevada public policy is applied “only where other states’ laws would 4 preclude all recovery for the injured insured.” Id. at 267 (emphasis in original; citing 5 Daniels v. Nat’l Home Life, 747 P.2d 897 (1987)). 6 Accordingly, even if Tyson were able to provide facts that question Marrero’s 7 California residency, the balance of the choice of law factors favors applying California 8 law to this dispute. 9 B. Application of California Law The law governing underinsured and uninsured insurance benefits in California is 10 11 set out in the state’s insurance code. Among other relevant provisions, California 12 Insurance Code § 11580.2(p)(5) provides that “the insurer is entitled to reimbursement or 13 credit in the amount received by the insured from the underinsured tortfeasor or his or 14 her insurer.” 15 statutory scheme is designed, the underinsured motorist carrier gets a dollar-for-dollar 16 credit for all payments by third party tortfeasors to the insureds, whether the insureds are 17 made whole or not.” Id. (quoting Malone v. Nationwide Mut. Ins. Co., 215 Cal. App. 3d 18 275, 277 (Cal. Ct. App. 1989)). Hartford Fire Ins. Co. v. Macri, 4 Cal. 4th 318, 328 (1992). “As the 19 In the instance case, Mid-Century complied with § 11580.2(p)(5) by paying Tyson 20 $150,000, which constitutes Mid-Century’s underinsured policy limit offset by the 21 payment made to Tyson by Bradshaw’s insurer. Tyson does not dispute these facts, 22 and rests her opposition to Mid-Century’s motion solely on inapplicable Nevada law. 23 She does not demonstrate entitlement to any relief under California law. Having failed to 24 raise any genuine issue of material fact with respect to her claims against Mid-Century, 25 the Court grants Mid-Century’s Motion. 26 /// 27 /// 28 /// 6 1 2 3 4 5 6 7 V. CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Defendant Mid-Century Insurance Company’s Motion for Summary Judgment (dkt. no. 21) is GRANTED. IT IS FURTHER ORDERED that Plaintiff Tyson’s Motion for Leave to File Supplement in Support of her Opposition (dkt. no. 25) is GRANTED. The Clerk of Court is instructed to close this case. DATED THIS 22nd day of February 2013. 8 9 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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