Castronovo-Flihan v. State Farm Mutual Automobile Insurance Company, No. 2:2020cv01197 - Document 62 (D. Nev. 2023)
Court Description: ORDER Granting 61 Joint Pretrial Order. Calendar Call set for 1/31/2024 at 01:30 PM in LV Courtroom 6A before Judge James C. Mahan. Jury Trial set for 2/5/2024 at 09:00 AM in LV Courtroom 6A before Judge James C. Mahan. Signed by Judge James C. Mahan on 11/20/2023. (Copies have been distributed pursuant to the NEF - ALZ) Modified on 11/20/2023 (ALZ).
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Castronovo-Flihan v. State Farm Mutual Automobile Insurance Company Doc. 62 1 ROBERT W. FREEMAN 2 3 4 5 6 7 Nevada Bar No. 3062 Robert.Freeman@lewisbrisbois.com FRANK A. TODDRE, II Nevada Bar No. 11474 Frank.Toddre@lewisbrisbois.com LEWIS BRISBOIS BISGAARD & SMTH LLP 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 702.893.3383 FAX: 702.893.3789 Attorneys for Defendant State Farm Mutual Automobile Insurance Company 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA, SOUTHERN DIVISION 10 11 12 *** GINA CASTRONOVO-FLIHAN, Plaintiff, 13 vs. 14 CASE NO. 2:20-cv-1197-JCM-DJA JOINT PRE-TRIAL ORDER STATE FARM MUTUAL AUTOMOBILE 15 INSURANCE COMPANY, a foreign company; AND DOES I through V, inclusive 16 Defendants. 17 18 Following pretrial proceedings in this case, pursuant to Local Rule 16-3 and 16-4, IT IS SO 19 ORDERED: 20 I. STATEMENT OF ACTION 21 This is an action for Breach of Contract under Nevada’s common law. While the complaint 22 originally held causes of action for Breach of the Covenant of Good Faith and Fair Dealing, and for 23 violations of NRS § 686A.310, those causes of action were dismissed by a Partial Motion for 24 Summary Judgement granted by this Court.1 25 The issues for trial are the allegations of State Farm’s unreasonable and improper conduct 26 27 LEWIS 28 1 ECF 54. BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 Dockets.Justia.com 1 in breaching the insurance policy with Plaintiff and Plaintiff’s damages, if any. 2 A. Plaintiff’s Contentions 3 1. Plaintiff performed all conditions of the insurance policy. 4 2. Plaintiff was owed benefits under the insurance policy. 5 3. Defendant failed to provide the insurance benefits due and owing under the 6 insurance policy. 4. 7 Defendant breached the insurance policy by manufacturing reasons to deny 8 the insurance benefits due and owing to Plaintiff under the insurance policy. 5. 9 Defendant breached the insurance policy by making the claims process an 10 adversarial or competitive process. 6. 11 Defendant breached the insurance policy by relying upon insufficient, 12 speculative and/or biased information. 7. 13 Defendant breached the insurance policy by failing to acknowledge and act 14 reasonable upon communication with respect to Plaintiff’s claim under the insurance policy. 8. 15 Defendant breached the insurance policy by failing to adopt and implement 16 reasonable standards for the prompt investigation and processing of claims. 9. 17 Defendant breached the insurance policy by failing to promptly equate and 18 communicate the evaluations to Plaintiff. 19 10. Defendant breached the insurance policy by failing to offer to Plaintiff what 11. Defendant breached the insurance policy by refusing to communicate with 20 was owed. 21 22 Plaintiff and perform an investigation as to her general damages for the evaluation. 12. 23 Defendant breached the insurance policy by reducing Plaintiff’s claim by 24 improperly basing her claim upon Medicare values for medical treatment through a claims software 25 system. 13. 26 Defendant breached the insurance policy by denying Plaintiff’s claim for the 27 full policy limits. LEWIS 14. 28 Defendant breached the insurance policy by making misrepresentations to BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 2 1 Plaintiff. 15. 2 Defendant breached the insurance policy by delaying in its investigation and 3 evaluation of the claim. 16. 4 Defendant breached the insurance policy by denying the claim before 5 completing an evaluation. 17. 6 Defendant breached the insurance policy by training its adjusters to deny 7 benefits by making unreasonably low offers that are below the evaluations. 18. 8 Defendant breached the insurance policy by refusing to communicate its 9 evaluation to Plaintiff. 19. 10 Defendant breached the insurance policy by failing to provide an explanation 11 of its offer and evaluation to Plaintiff. 20. 12 Defendant breached the insurance policy by misrepresenting and improperly 13 asserting that the in-person meeting between its adjuster and Plaintiff has to take place in a public 14 library. 21. 15 Defendant breached the insurance policy by failing to consider the new 16 information of Plaintiff’s general damages after the in-person interview and increase the value of 17 Plaintiff’s claim. 22. 18 Defendant breached its promise for the bargain that when the insured, 19 Plaintiff, was in need, Defendant, as the insurance company, will be there to help like a Good 20 Neighbor. 23. 21 Defendant breached the insurance policy by failing to pay Plaintiff a portion 22 of the policy benefits commonly known as the impasse payment or undisputed amount. 24. 23 Defendant breached the insurance policy by failing to offer the full value of 24 the evaluations for the owed policy benefits. 25. 25 Defendant breached the insurance policy by failing to give equal 26 considerations to Plaintiff. 26. 27 LEWIS Defendant breached the insurance policy by failing to comply with policies 28 and procedures in retaining medical experts. BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 3 1 27. Defendant breached the insurance policy by delaying in its retention of 28. Defendant breached the insurance policy by refusing to consider all of 2 experts. 3 4 Plaintiff’s medical expenses without any medical expert opinion and/or notations in the claim file 5 as to the basis for the denial. 29. 6 Defendant breached the insurance policy by failing to consider any future 7 general damages. 30. 8 Defendant breached the insurance policy by failing to handle the claim in 9 accordance with its own policies and procedures. 31. 10 Defendant breached the insurance policy by failing to offer the full authority 11 for the benefits owed to Plaintiff. 32. 12 Defendant breached the insurance policy by failing to give a prompt and 13 forthright explanation to Plaintiff as to the company’s position with respect to the claim. 33. 14 Defendant breached the insurance policy by failing to conduct a diligent 15 search for facts as promptly as possible. 34. 16 Defendant breached the insurance policy by creating false or fictitious issues 17 to avoid providing and/or paying benefits due and owing to Plaintiff. 35. 18 Plaintiff has been forced to retain the services of an attorney in prosecution 19 of the Complaint, incurring expensive legal fees, court costs, and for fees for other professionals for 20 which Defendant is responsible 21 B. Defendants’ Contentions 22 Defendant contends that they did not breach the subject insurance policy contract, Policy 23 Number #136 2037-F22-28. 24 More specifically, Defendant contends the following: 1. 25 Prior to the subject accident in 2019, Plaintiff experienced a separate motor 26 vehicle accident related injury when she was rear-ended in March 2017, and experienced neck pain 27 radiating to her arms, shoulder pain, headaches, and low back pain radiating to her legs. LEWIS 2. 28 Said third-party tortfeasor, Mr. Bacon, was insured under a liability policy BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 4 1 under Farmer’s Insurance. 3. 2 Plaintiff Castronovo-Flihan’s complaint fails to state a cause of action against 3 these answering defendants upon which relief can be granted. 4. 4 Plaintiff Castronovo-Flihan did not fulfill her duty to cooperate with 5 Defendant State Farm under the terms of the subject policy. 5. 6 Defendant State Farm did not breach the terms of the subject policy, but 7 instead simply requested a medical examination, as allowed under the terms of the subject policy, 8 §6(a)(2). 6. 9 Plaintiff’s remaining damages, if any, were actually and proximately caused 10 by her prior 2017 Motor Vehicle Accident. 7. 11 The valuation of the claim by State Farm Mutual Automobile Insurance 12 Company was reasonable. 8. 13 Defendant State Farm complied with the terms of the subject policy, case law, 14 and Nevada statutes. 9. 15 If any damages are proven in this case, the basis of those damages lies only 16 with the breach of contract claim. 10. 17 State Farm generally denies Plaintiff’s allegations set forth herein, and 18 incorporates by reference the denials set forth in Defendant’s Answer to Plaintiff’s Complaint on 19 file with the Court in this matter and raise the following affirmative defenses: 20 (a) Plaintiff has failed to state a claim upon which relief could be granted. 21 (b) Plaintiff failed to mitigate her damages. 22 (c) The damages allegedly sustained by Plaintiff, if any, were not caused 23 by any breach of contract or duty by Defendant State Farm Mutual 24 Automobile Insurance Company, but rather by the acts or omissions 25 of third persons who were not acting on behalf of Defendant State 26 Farm Mutual Automobile Insurance Company (d) 27 LEWIS Defendant State Farm Mutual Automobile Insurance Company is informed and believes, and based upon information and belief, alleges 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 5 1 that the complaint, and each and every purported claim for relief in 2 said Complaint, is subject to all the terms, conditions, provisions, 3 definitions, limitations, exclusions, and endorsements in the subject 4 insurance policy. Plaintiff’s claim is barred, excluded, restricted, 5 and/or limited accordingly. (e) 6 7 required under the subject insurance policy upon which she seeks 8 recovery. (f) 9 Defendant State Farm Mutual Automobile Insurance Company has 10 acted reasonably in good faith in all aspects under the circumstances 11 known to it and continues to do so. (g) 12 Defendant State Farm Mutual Automobile Insurance Company has 13 fulfilled its obligations under the subject policy, and that all actions it 14 has taken relevant to Plaintiff’s claim have been accomplished in 15 good faith. (h) 16 Defendant State Farm Mutual Automobile Insurance Company did 17 not violate any duty owed to Plaintiff under the common law, 18 contract, or statute. (i) 19 The damages claimed by Plaintiff, if any, are speculative, are not supported by proof, and thus not compensable as a matter of law. 20 (j) 21 The damages claimed by Plaintiff were not proximately caused in full by the accident described in the complaint. 22 (k) 23 This suit is not ripe as Plaintiff has failed to establish a claim of legal entitlement under the terms of the policy of insurance. 24 (l) 25 LEWIS Plaintiff has failed to satisfy one or more conditions precedent and Any verdict against Defendant State Farm Mutual Automobile 26 Insurance Company must be apportioned between injuries directly 27 caused by the accident described in the Complaint and other medical 28 conditions or injuries which may have predated or occurred BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 6 subsequent to said accident. 1 (m) 2 Defendant State Farm Mutual Automobile Insurance Company is 3 entitled to offset any amounts paid to Plaintiff for damages allegedly 4 sustained in this action, including any amounts paid by or on behalf 5 of any other insurer or responsible party, against any amounts that 6 may be owed by Defendant to Plaintiff. Further, Defendant is allowed 7 to offset additional amounts to the total value of Plaintiff’s claim in 8 accordance with the subject insurance policy terms and/or Nevada 9 law. (n) 10 Defendant State Farm Mutual Automobile Insurance Company has 11 been forced to retain the services of an attorney in defense of the 12 Complaint, incurring expensive legal fees, court costs, and for fees 13 for other professionals for which plaintiff is responsible. (o) 14 Defendant hereby incorporates by reference those affirmative defenses listed in FRCP 12(b). 15 (p) 16 Plaintiff lacks legal entitlement to recover her claim as contemplated 17 by the Nevada Supreme Court in Pemberton v. Farmers Insurance 18 Exchange, 109 Nev. 789, P.2d 380 (1993). 19 II. STATEMENT OF JURISDICTION 20 This Court has jurisdiction pursuant to 28 U.S.C. § 1332. Plaintiff Gina Castronovo-Flihan 21 is a resident of the State of Nevada. Defendant State Farm Mutual Automobile Insurance Company 22 is a foreign entity incorporated in Illinois, with its principle place of business in Illinois, that is 23 authorized to conduct business in the State of Nevada. Further, Plaintiff seeks damages in excess of 24 $75,000, and therefore both requirements for federal diversity jurisdiction, pursuant to 28 U.S.C. § 25 1332 are met. The parties do not dispute the jurisdiction of this Court. LEWIS 26 III. ADMITTED FACTS 27 A. The following facts are admitted by the parties and require no proof 1. 28 The subject collision occurred as a result of third-party tortfeasor, Florian BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 7 1 Baculao-Bacon, crashing into the driver’s side of Plaintiff’s vehicle at a high rate of speed. 2. 2 State Farm determined that Mr. Baculao-Bacon is 100% at fault for the 3 subject collision, with Plaintiff Gina Castronovo-Flihan at 0% fault. 3. 4 Said third-party tortfeasor, Mr. Bacon, was insured under a liability policy 5 under Farmer’s Insurance. 4. 6 Farmer’s Insurance paid Plaintiff Gina Castronovo-Flihan the policy limits 7 of $50,000.00 on or about May 16, 2019. 8 5. This action arises out of an insurance dispute following an automobile 6. At the time of the subject collision, January 23, 2019, Plaintiff Gina 9 accident. 10 11 Castronovo-Flihan held a State Farm Mutual Automobile Insurance Company auto insurance policy, 12 policy number 136 2037-F22-28. 7. 13 This policy, policy number 136 2037-F22-28, had underinsured motorist 14 benefits of $100,000 policy limit per person, and a $300,000 policy limit per incident. 15 8. Defendant has not paid any portion of the policy benefits to Plaintiff. 16 9. Plaintiff suffered bodily injuries as a result of the subject collision on January 17 23, 2019. 18 IV. UNCONTESTED FACTS 19 A. 20 The following facts, though not admitted, will not be contested at trial by evidence to the contrary 1. 21 After plaintiff submitted her proof of claim and provided medical records, 22 defendant sent her a letter communicating its refusal to evaluate the claim until it received proof of 23 third-party policy limits. 2. 24 Plaintiff supplemented her proof of claim with evidence that the underlying 25 tortfeasor’s policy limits were exhausted. 26 3. Defendant offered Plaintiff $6,333.32 on September 24, 2019 to settle her 4. Defendant sent a representative to counsel for plaintiff’s office on November 27 claim. LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 8 1 20, 2019 after months of Plaintiff requesting the same. 2 V. ISSUES OF FACT FOR TRIAL 3 The following are the issues of fact to be tried and determined at trial 4 A. Plaintiff’s Issues of Fact for Trial 1. 5 Whether Defendant failed to provide the insurance benefits due and owing 6 under the insurance policy. 2. 7 Whether Defendant breached the insurance policy by manufacturing reasons 8 to deny the insurance benefits due and owing to Plaintiff under the insurance policy. 3. 9 Whether Defendant breached the insurance policy by making the claims 10 process an adversarial or competitive process. 4. 11 Whether Defendant breached the insurance policy by failing to acknowledge 12 and act reasonable upon communication with respect to Plaintiff’s claim under the insurance policy. 5. 13 Whether Defendant breached the insurance policy by failing to adopt and 14 implement reasonable standards for the prompt investigation and processing of claims. 6. 15 Whether Defendant breached the insurance policy by failing to promptly 16 equate and communicate the evaluations to Plaintiff. 7. 17 Whether Defendant breached the insurance policy by failing to offer to 18 Plaintiff what was owed. 8. 19 Whether Defendant breached the insurance policy by refusing to 20 communicate with Plaintiff and perform an investigation as to her general damages for the 21 evaluation. 9. 22 Whether Defendant breached the insurance policy by reducing Plaintiff’s 23 claim by improperly basing her claim upon Medicare values for medical treatment through a claims 24 software system. 10. 25 Whether Defendant breached the insurance policy by denying Plaintiff’s 26 claim for the full policy limits. 11. 27 LEWIS Whether Defendant breached 28 misrepresentations to Plaintiff. BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 9 the insurance policy by making 12. 1 Whether Defendant breached the insurance policy by delaying in its 2 investigation and evaluation of the claim. 13. 3 Whether Defendant breached the insurance policy by denying the claim 4 before completing an evaluation. 14. 5 Whether Defendant breached the insurance policy by training its adjusters to 6 deny benefits by making low-ball offers that are below the evaluations. 15. 7 Whether Defendant breached the insurance policy by refusing to 8 communicate its evaluation to Plaintiff. 16. 9 Whether Defendant breached the insurance policy by failing to provide an 10 explanation of its offer and evaluation to Plaintiff. 17. 11 Whether Defendant breached the insurance policy by misrepresenting and 12 improperly asserting that the in-person meeting between its adjuster and Plaintiff has to take place 13 in a public library. 18. 14 Whether Defendant breached the insurance policy by failing to consider the 15 new information of Plaintiff’s general damages after the in-person interview and increase the value 16 of Plaintiff’s claim. 19. 17 Whether Defendant breached the insurance policy by failing to pay Plaintiff 18 a portion of the policy benefits commonly known as the impasse payment or undisputed amount. 20. 19 Whether Defendant breached the insurance policy by failing to offer the full 20 value of the evaluations for the owed policy benefits. 21. 21 Whether Defendant breached the insurance policy by failing to give equal 22 considerations to Plaintiff. 22. 23 Whether Defendant breached the insurance policy by failing to comply with 24 policies and procedures in retaining medical experts. 25 23. Whether Defendant breached the insurance policy by delaying in its retention 24. Whether Defendant breached the insurance policy by refusing to consider all 26 of experts. 27 LEWIS 28 of Plaintiff’s medical expenses without any medical expert opinion and/or notations in the claim file BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 10 1 as to the basis for the denial. 25. 2 Whether Defendant breached the insurance policy by failing to consider 3 future general damages. 26. 4 Whether Defendant breached the insurance policy by failing to handle the 5 claim in accordance with its own policies and procedures. 27. 6 Whether Defendant breached the insurance policy by failing to offer the full 7 authority for the benefits owed to Plaintiff. 28. 8 Whether Defendant breached the insurance policy by failing to pay the 9 benefits due and owing to Plaintiff. 29. 10 Whether Defendant breached the insurance policy by relying upon 11 insufficient, speculative and/or biased information. 30. 12 Whether Defendant breached the insurance policy by failing to give a prompt 13 and forthright explanation to Plaintiff as to the company’s position with respect to the claim. 31. 14 Whether Defendant breached the insurance policy by failing to conduct a 15 diligent search for facts as promptly as possible. 32. 16 Whether Defendant breached the insurance policy by creating false or 17 fictitious issues to avoid providing and/or paying benefits due and owing to Plaintiff. 33. 18 Whether Defendant breached its promise for the bargain that when the 19 insured, Plaintiff, was in need, Defendant, as the insurance company, will be there to help like a 20 Good Neighbor. 34. 21 22 B. Whether or not Plaintiff’s medical bills incurred after the January 23, 2019, 24 subject accident were reasonably related to said subject motor vehicle 25 accident. 2. 26 LEWIS Defendant’s Issues of Fact for Trial 1. 23 The damages suffered by Plaintiff. Whether or not Plaintiff’s medical bills incurred after the subject accident 27 were more reasonably related to Plaintiff’s motor vehicle accident in May 28 2017. BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 11 3. 1 Whether or not Plaintiff’s medical bills incurred were reasonable in scope to the injury occurred. 2 3 VI. ISSUES OF LAW FOR TRIAL 4 The following are the issues of law to be tried and determined at trial: 5 A. Plaintiff’s Issues of Law for Trial 1. 6 Whether Defendant failed to provide the insurance benefits due and owing 7 under the insurance policy. 2. 8 Whether Defendant breached the insurance policy by manufacturing reasons 9 to deny the insurance benefits due and owing to Plaintiff under the insurance policy. 3. 10 Whether Defendant breached the insurance policy by making the claims 11 process an adversarial or competitive process. 4. 12 Whether Defendant breached the insurance policy by failing to acknowledge 13 and act reasonable upon communication with respect to Plaintiff’s claim under the insurance policy. 5. 14 Whether Defendant breached the insurance policy by failing to adopt and 15 implement reasonable standards for the prompt investigation and processing of claims. 6. 16 Whether Defendant breached the insurance policy by failing to promptly 17 equate and communicate the evaluations to Plaintiff. 7. 18 Whether Defendant breached the insurance policy by failing to offer to 19 Plaintiff what was owed. 8. 20 Whether Defendant breached the insurance policy by refusing to 21 communicate with Plaintiff and perform an investigation as to her general damages for the 22 evaluation. 9. 23 Whether Defendant breached the insurance policy by reducing Plaintiff’s 24 claim by improperly basing her claim upon Medicare values for medical treatment through a claims 25 software system. 10. 26 Whether Defendant breached the insurance policy by denying Plaintiff’s 27 claim for the full policy limits. LEWIS 11. 28 Whether Defendant breached BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 12 the insurance policy by making 1 misrepresentations to Plaintiff. 12. 2 Whether Defendant breached the insurance policy by delaying in its 3 investigation and evaluation of the claim. 13. 4 Whether Defendant breached the insurance policy by denying the claim 5 before completing an evaluation. 14. 6 Whether Defendant breached the insurance policy by training its adjusters to 7 deny benefits by making low-ball offers that are below the evaluations. 15. 8 Whether Defendant breached the insurance policy by refusing to 9 communicate its evaluation to Plaintiff. 16. 10 Whether Defendant breached the insurance policy by failing to provide an 11 explanation of its offer and evaluation to Plaintiff. 17. 12 Whether Defendant breached the insurance policy by misrepresenting and 13 improperly asserting that the in-person meeting between its adjuster and Plaintiff has to take place 14 in a public library. 18. 15 Whether Defendant breached the insurance policy by failing to consider the 16 new information of Plaintiff’s general damages after the in-person interview and increase the value 17 of Plaintiff’s claim. 19. 18 Whether Defendant breached the insurance policy by failing to pay Plaintiff 19 a portion of the policy benefits commonly known as the impasse payment or undisputed amount. 20. 20 Whether Defendant breached the insurance policy by failing to offer the full 21 value of the evaluations for the owed policy benefits. 21. 22 Whether Defendant breached the insurance policy by failing to give equal 23 considerations to Plaintiff. 22. 24 Whether Defendant breached the insurance policy by failing to comply with 25 policies and procedures in retaining medical experts. 26 23. Whether Defendant breached the insurance policy by delaying in its retention 24. Whether Defendant breached the insurance policy by refusing to consider all 27 of experts. LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 13 1 of Plaintiff’s medical expenses without any medical expert opinion and/or notations in the claim file 2 as to the basis for the denial. 25. 3 Whether Defendant breached the insurance policy by failing to consider 4 future general damages. 26. 5 Whether Defendant breached the insurance policy by failing to handle the 6 claim in accordance with its own policies and procedures. 27. 7 Whether Defendant breached the insurance policy by failing to offer the full 8 authority for the benefits owed to Plaintiff. 28. 9 Whether Defendant breached the insurance policy by failing to pay the 10 benefits due and owing to Plaintiff. 29. 11 Whether Defendant breached the insurance policy by relying upon 12 insufficient, speculative and/or biased information. 30. 13 Whether Defendant breached the insurance policy by failing to give a prompt 14 and forthright explanation to Plaintiff as to the company’s position with respect to the claim. 31. 15 Whether Defendant breached the insurance policy by failing to conduct a 16 diligent search for facts as promptly as possible. 32. 17 Whether Defendant breached the insurance policy by creating false or 18 fictitious issues to avoid providing and/or paying benefits due and owing to Plaintiff. 33. 19 Whether Defendant breached its promise for the bargain that when the 20 insured, Plaintiff, was in need, Defendant, as the insurance company, will be there to help like a 21 Good Neighbor. 22 34. The damages suffered by Plaintiff. 23 35. Any issue of fact set forth above which is more properly regarded as an issue 24 of law. 25 LEWIS B. Defendant’s Issues of Law for Trial 26 1. Whether Plaintiff’s claim for Breach of Contract has any merit. 27 2. The legal propriety of remedies, including damages, equitable relief, interest, 28 attorney’s fees, and costs recoverable by Plaintiff as a matter of law in the event that she prevails on BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 14 1 the jury’s verdict. 3. 2 Whether or not Plaintiff fulfilled her duty to cooperate with State Farm under 3 the terms of the subject policy. 4. 4 Any issue of fact set forth above which is more properly regarded as an issue 5 of law. 6 VII. EVIDENCE 7 A. 8 The following exhibits are stipulated into evidence in this case and may be so marked by the clerk 9 (a) Traffic Accident Report: PLT ECC 0069-0076; 10 (b) Photos of Collision: PLT ECC 0077-0080; 11 (c) Redacted Non-Confidential Certified Policy: SF POL 1-60 12 (d) Redacted Non-Confidential State Farm Claim File: SF 1–1746 13 (e) State Farm Claim Notes: SF 1-242 14 (f) Claims Correspondence: PLT ECC 0081-2288 15 (g) State Farm Auto Injury Evaluation: SF 181-187 16 (h) Non-Confidential Portions of State Farm Auto Claim Manual: CASGIN00000001PROD - CASGIN00000030PROD 17 (i) 18 Training: CASGIN00000031PROD - CASGIN00000033PROD 19 20 (j) Non-Confidential State Farm Materials: PLT DOEW 0137-0227 21 (k) Redacted Medical Records and Bills from American Medical Responses: PLT ECC 2289-2297 22 (l) 23 Redacted Medical Bill from Vituity NV Koury Partners PLLC 24 (records included in St. Rose Dominican Hospital Records): PLT 25 ECC 2298-2299 (m) 26 Redacted Radiology Associates of Nevada Bill (records included in St. Rose Dominican Hospital Records): PLT ECC 2300-2301 27 LEWIS Non-Confidential Portions of State Farm Employees Education and (n) 28 Redacted Medical Records and Bills from Dignity Health-St. Rose BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 15 1 Dominican Hospital-San Martin Campus (Imaging Produced on CD): 2 PLT ECC 2302-2321; PLT 1ST 001-145 (o) 3 Balance Centers: PLT ECC 2322-2348 4 (p) 5 Redacted Medical Records and Bills from Well Care Medical Group, 6 LLC-Bellavue Medical: PLT ECC 2349-2387; PLT 1ST 146-200; 7 PLT 2nd 001-003 (q) 8 Redacted Medical Records and Bills from SimonMed (imaging produced on CD): PLT ECC 2388-2411; PLT 1ST 201-232; PLT 3RD 9 001 10 (r) 11 Redacted Medical Records and Bills from Neurocare of Nevada: PLT ECC 2412-2516; PLT 1ST 233-344 12 (s) 13 Redacted Medical Records and Bills from Desert Orthopedic Center: PLT ECC 2517-2545 14 (t) 15 Redacted Medical Records and Bills from Las Vegas Fire & Rescue: PLT ECC 2546-2559 16 (u) 17 Redacted Bills from Shadow Emergency Physicians (records included in Summerlin Hospital Records): PLT ECC 2560-2565 18 (v) 19 Redacted Bills from Desert Radiologists (records included in Summerlin Hospital records): PLT ECC 2566-2568 20 (w) 21 Redacted Medical Records and Bills from Summerlin Hospital: PLTECC 2569-2658 22 (x) 23 Redacted Medical Records and Bills from Siems Lasik & Eye Centers: PLT ECC 2659-2661 24 (y) 25 Redacted Medical Records and Bills from Cardiology & Cardiovascular Consultants: PLT ECC 2662-2713 26 (z) 27 LEWIS Redacted Medical Records and Bills from FYZICAL Therapy and Redacted Medial Records and Bills from CVS Pharmacy: PLT ECC 2714-2725; PLT 2ND 004-009 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 16 (aa) 1 350 2 (bb) 3 Redacted Medical Records and Bills from Summerlin Hospital Outpatient Therapy Center: PLT 1ST 351-469 4 (cc) 5 Redacted Medical Records and Bills from Southwest Medical Associates Butler Family Medical Center: PLT 1ST 470-509 6 (dd) 7 Redacted Medical Records and Bills for Las Vegas Radiology: PLT 1ST 510-522 8 (ee) 9 Medical Records & Bills from Gobinder Chopra, M.D.: SF 17471860 10 11 (ff) Medical Records & Bills from Las Vegas Radiology: SF 1861-1873 12 (gg) Medical Records & Bills from SimonMed: SF 1874-1922 13 (hh) Medical Records from St. Rose Dominican Hospital: SF 1923-2057 14 (ii) Medical Records from CVS Pharmacy: SF 2058-2062 15 (jj) Medical Records & Bills from Desert Orthopedic Center: SF 20632177 16 17 (kk) Medical Records from Southwest Medical Associates: SF 2178-2193 18 (ll) Medical Records & Bills from Summerlin Hospital: SF 2194-2404 19 (mm) All exhibit listed by either Party 20 (nn) All documents identified during discovery 21 (oo) Responses to Interrogatories 22 (pp) Requests to Requests for Production 23 (qq) Requests to Requests for Admission 24 (rr) Rebuttal and/or impeachment documents 25 B. 26 LEWIS Redacted Medical Record from Clark County Fire Dept: PLT 1ST 245- As to the following exhibits, the party against whom the same will be offered objections to their admission on the grounds stated 27 1. Set forth the Plaintiff’s exhibits and objections to them. 28 2. Set forth the Defendant’s exhibits and objections to them. BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 17 C. 1 Electronic evidence N/A. 2 D. 3 Depositions 4 1. Plaintiff will offer the following depositions: None. 5 2. Defendant will offer the following depositions: None. E. 6 Objections to Depositions 7 1. Defendant objects to plaintiff’s depositions as follows: None. 8 2. Plaintiff objects to defendant’s depositions as follows: None. 9 VIII. WITNESSES A. 10 11 Plaintiff’s Witnesses 1. Plaintiff Gina Castronovo-Flihan c/o Ian M. McMenemy, Esq. McMenemy Holmes PLLC 1645 Village Center Circle, Suite 291 Las Vegas, Nevada 89134 2. James Flihan c/o Ian M. McMenemy, Esq. McMenemy Holmes PLLC 1645 Village Center Circle, Suite 291 Las Vegas, Nevada 89134 3. Jimmy Flihan c/o Ian M. McMenemy, Esq. McMenemy Holmes PLLC 1645 Village Center Circle, Suite 291 Las Vegas, Nevada 89134 4. Brandon Flihan c/o Ian M. McMenemy, Esq. McMenemy Holmes PLLC 1645 Village Center Circle, Suite 291 Las Vegas, Nevada 89134 5. Fred Flihan c/o Ian M. McMenemy, Esq. McMenemy Holmes PLLC 1645 Village Center Circle, Suite 291 Las Vegas, Nevada 89134 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LEWIS 27 / / / 28 / / / BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 18 1 6. Arletia Marshall Claims Specialist State Farm Mutual Automobile Insurance Company c/o Lewis Brisbois Bisgaard Smith LLP. 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 7. Michele Maglione Mobile Adjuster State Farm Mutual Automobile Insurance Company c/o Lewis Brisbois Bisgaard Smith LLP. 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 8. Jake Geddes Team Manager State Farm Mutual Automobile Insurance Company c/o Lewis Brisbois Bisgaard Smith LLP. 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 9. Jason Snyder Team Manager State Farm Mutual Automobile Insurance Company c/o Lewis Brisbois Bisgaard Smith LLP. 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 10. FRCP 30(b)(6) witness for: State Farm Mutual Automobile Insurance Company c/o Lewis Brisbois Bisgaard Smith LLP. 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 B. 19 Plaintiff’s Expert Witnesses 1. Enrico Fazzini, D.O., Ph.D., F.A.C.N. 291 N. Pecos Road Henderson, NV 89704 2. Christopher Platt, PT, DPT C/O FYSICAL Therapy & Balance Centers 9070 W. Cheyenne Ave. Suite 100 Las Vegas, NV 89129 3. Rafael Mirchou, MD, FABS C/O Well CareMedical Group LLC, Bellavue Medical 7488 West Sahara Avenue Las Vegas, NV (702) 641-1240 4. Gobinder S. Chopra, MD C/O Neurocare of Nevada 6410 Medical Center, Suite A-100 Las Vegas, NV 89148 20 21 22 23 24 25 26 27 LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 19 1 5. Thomas Dunn, MD C/O Desert Orthopedic Center 2800 E. Desert Inn Road, Suite 100 Las Vegas, NV 89121 6. Christine Derhake, PT, DPT C/O Summerlin Hospital Outpatient Therapy Center 657 Town Center Dr., Suite 117 Las Vegas, NV 89144 7. Stephen Strzelec C/O Strzelec Consulting Services 20719 NE 8th St. Sammamish, WA 98074 8. All witnesses identified by any other party to this case. 9. Any and all custodians of record and/or persons most knowledgeable of any 2 3 4 5 6 7 8 9 10 and all entities from which records may be obtained, including, but not limited to, 11 employers, schools, government agencies, private entities, and/or insurance 12 companies. 13 10. 14 Any and all witnesses, including rebuttal or impeachment witnesses, offered by the Plaintiffs or other parties to this action. 15 11. 16 C. 17 18 Defendant’s Possible Witnesses 1. Gina Castronovo-Flihan c/o Ian M. McMenemy, Esq. McMenemy Holmes PLLC 1645 Village Center Circle, Suite 291 Las Vegas, Nevada 89134 2. James Flihan c/o Ian M. McMenemy, Esq. McMenemy Holmes PLLC 1645 Village Center Circle, Suite 291 Las Vegas, Nevada 89134 3. Jimmy Flihan c/o Ian M. McMenemy, Esq. McMenemy Holmes PLLC 1645 Village Center Circle, Suite 291 Las Vegas, Nevada 89134 19 20 21 22 23 24 25 26 The parties reserve the right to object to any witness identified by either party. 27 / / / LEWIS 28 / / / BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 20 1 4. Brandon Flihan c/o Ian M. McMenemy, Esq. McMenemy Holmes PLLC 1645 Village Center Circle, Suite 291 Las Vegas, Nevada 89134 5. Fred Flihan c/o Ian M. McMenemy, Esq. McMenemy Holmes PLLC 1645 Village Center Circle, Suite 291 Las Vegas, Nevada 89134 6. Arletia Marshall Claims Specialist State Farm Mutual Automobile Insurance Company c/o Lewis Brisbois Bisgaard Smith LLP. 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 7. Michele Maglione Mobile Adjuster State Farm Mutual Automobile Insurance Company c/o Lewis Brisbois Bisgaard Smith LLP. 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 8. Jake Geddes Team Manager State Farm Mutual Automobile Insurance Company c/o Lewis Brisbois Bisgaard Smith LLP. 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 9. Jason Snyder Team Manager State Farm Mutual Automobile Insurance Company c/o Lewis Brisbois Bisgaard Smith LLP. 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 10. Enrico Fazzini, D.O., Ph.D., F.A.C.N. 291 N. Pecos Road Henderson, NV 89704 11. Christopher Platt, PT, DPT C/O FYSICAL Therapy & Balance Centers 9070 W. Cheyenne Ave. Suite 100 Las Vegas, NV 89129 12. Rafael Mirchou, MD, FABS C/O Well CareMedical Group LLC, Bellavue Medical 7488 West Sahara Avenue Las Vegas, NV (702) 641-1240 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 21 1 13. Gobinder S. Chopra, MD C/O Neurocare of Nevada 6410 Medical Center, Suite A-100 Las Vegas, NV 89148 14. Thomas Dunn, MD C/O Desert Orthopedic Center 2800 E. Desert Inn Road, Suite 100 Las Vegas, NV 89121 15. Christine Derhake, PT, DPT C/O Summerlin Hospital Outpatient Therapy Center 657 Town Center Dr., Suite 117 Las Vegas, NV 89144 16. FRCP 30(b)(6) witness for: State Farm Mutual Automobile Insurance Company c/o Lewis Brisbois Bisgaard Smith LLP. 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 17. Caleb Myers Messner Reeves, LLP 8945 W Russell Rd. #300 Las Vegas, NV 89148 18. Brock Ohlson, Esq. Brock Ohlson Injury Lawyers 6060 Elton Ave. Las Vegas, Nevada 89107 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 D. 18 Defendant’s Expert Witnesses 1. Andrew Cash, M.D., P.C. Desert Institute of Spine Care 5130 S. Ft. Apache Rd., Box 215-415 Las Vegas, NV 89148 2. Mark Winkler, M.D. 8 Morning Sky Lane Las Vegas, Nevada 89135 3. David L. Ginsburg, M.D. 851 S. Rampart Boulevard, Suite 115 Las Vegas, NV 89145 4. Edward McKinnon Claims Resource Management Inc. 33345 Santiago Rd. Acton, CA 93510 5. All witnesses identified by any other party to this case. 6. Any and all custodians of record and/or persons most knowledgeable of any 19 20 21 22 23 24 25 26 27 LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 22 1 and all entities from which records may be obtained, including, but not limited to, 2 employers, schools, government agencies, private entities, and/or insurance 3 companies. 4 7. 5 by the Plaintiffs or other parties to this action. 6 8. Any and all witnesses, including rebuttal or impeachment witnesses, offered The parties reserve the right to object to any witness identified by either party. 7 IX. PROPOSED TRIAL DATES 8 Counsel have met and submitted a list of three agreed-upon trial dates. It is expressly 9 understood by the undersigned that the Clerk will set the trial of this matter on one of the agreed10 upon dates, if possible, if not, the trial will be set at the convenience of the Court’s calendar: 11 PARTIES REQUEST: The Attorneys or parties have met and jointly offer these trial dates: 12 1. 01/16/2024 13 It is expressly understood by the undersigned that the court will set the trial of this matter on 2. 01/22/2024 3. 02/05/2024 14 one of the agreed upon dates if possible, if not, the trial will be set at the convenience of the court’s 15 calendar. 16 X. PROPOSED TRIAL DURATION 17 It is estimated that the trial herein will take a total of 10-12 days. 18 APPROVED AS TO FORM AND CONTENT. 19 DATED this 13th day of November, 2023 20 DATED this 13th day of November, 2023 MCMENEMY | HOLMES PLLC LEWIS BRISBOIS BISGAARD & SMITH By: /s/ Ian M. McMenemy Ian M. McMenemy, Esq. Nevada Bar No. 13190 Dustun H. Holmes, Esq. Nevada Bar No. 12776 1645 Village Center Cir., Ste 291 Las Vegas, Nevada 89134 By: /s/ Frank A. Toddre, II Robert W. Freeman, Esq. Nevada Bar No. 3062 Frank A. Toddre, II Nevada Bar No. 11474 6385 S. Rainbow Blvd, Suite 600 Las Vegas, Nevada 89118 21 22 23 24 25 26 LEWIS 27 / / / 28 / / / BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 23 LLP 1 XI. ACTION BY THE COURT 2 (a) This case is set for court/jury trial on the stacked calendar on 3 February 5, 2024, at 9:00 a.m. Calendar Call shall be held on January 31, 2024, at 1:30 p.m. 4 (b) An original and two (2) copies of each trial brief shall be submitted to the clerk on 5 or before Calendar Call. 6 (c) Jury Trials: (1) 7 An original and two (2) copies of all instructions requested by either party 8 shall be submitted to the clerk for filing on or before: Calendar Call., (2) 9 An original and two (2) copies of all suggested questions of the parties to be 10 asked of the jury panel by the Court on voir dire shall be submitted to the clerk for filing on or 11 before: Calendar Call. 12 (d) Not applicable. 13 14 Court Trials: (e) Counsel shall serve a copy of any trial brief, proposed findings of fact and 15 conclusions of law, proposed voir dire questions, and proposed jury instructions upon opposing 16 counsel contemporaneously with the filing thereof with the Court. 17 The foregoing pretrial order has been approved by the parties to this action as evidenced by 18 the signatures of their counsel hereon, and the order is hereby entered and will govern the trial of 19 this case. This order shall not be amended except by order of the Court pursuant to agreement of 20 the parties or to prevent manifest injustice. 21 IT IS SO ORDERED: DATED: ________________________ DATED November 20, 2023. 22 23 __________________________________________ UNITED STATES DISTRICT COURT JUDGE 24 25 26 27 LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 131991983.1 24
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