Joseph v. Hartford Fire Insurance Company

Filing 106

ORDER Granting 51 Defendant's Motion for Partial Judgment on the Pleadings and Denying 71 Plaintiff's Counter-motion for Declaratory Relief, or in the alternative, for Partial Judgment on the Pleadings. Signed by Judge James C. Mahan on 06/17/2014. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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STEPHEN JOSEPH,

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2:12-CV-798 JCM (CWH)

Plaintiff(s),

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v.

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HARTFORD FIRE INSURANCE
COMPANY,

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Defendant(s).

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ORDER

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Presently before the court is a motion for partial judgment on the pleadings filed by defendant

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Hartford Fire Insurance Company (“Hartford”). (Doc. # 51). Plaintiff Stephen Joseph filed a response

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in opposition (doc. # 70), and Hartford filed a reply (doc. # 73).

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Also before the court is plaintiff’s countermotion for declaratory relief or in the alternative

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for partial judgment on the pleadings. (Doc. # 71). Hartford filed a response in opposition (doc. #

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74), and plaintiff filed a reply (doc. # 78).

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I.

Background

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This case arises as the result of a car accident in which plaintiff alleges he was injured by

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another vehicle. (Doc. # 1-2). Plaintiff had multiple surgeries as a result of the accident. (Doc. # 1-2).

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Plaintiff settled with the driver of the other vehicle for the driver’s policy limit of $100,000. (Doc.

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# 1-2). However, plaintiff has allegedly incurred more than $250,000 in medical costs relating to the

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accident. (Docs. # 51 at p. 2, 70 at p. 3).

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James C. Mahan
U.S. District Judge

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Hartford insured plaintiff at the time of the accident under a personal auto policy. (Doc. # 51

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at p. 2). Plaintiff also had a personal umbrella liability policy with Hartford. (Docs. # 51 at p. 2, 70

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at p. 3).

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Plaintiff filed suit against Hartford for: (1) breach of contract, (2) bad faith, and (3) violation

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of unfair trade practices act. (Doc. # 1-2). Hartford argues that plaintiff’s claims regarding the

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umbrella liability policy must be dismissed. (Doc. # 51 at p. 2).

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For purposes of these motions the parties agree that the umbrella policy stated “[Hartford]

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do[es] not provide: . . . (2) [u]ninsured [m]otorists [c]overage, [u]nderinsured [m]otorists [c]overage,

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or any similar coverage unless this policy is endorsed to provide such coverage.” (Docs. # 51 at p.

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3, 70 at p. 4). No policy endorsement existed that granted uninsured or underinsured motorist

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coverage. (Doc. # 51 at p. 3). Hartford did not obtain a signed disclosure statement from plaintiff

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acknowledging that the umbrella policy did not include uninsured and underinsured motorist

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coverage. (Doc. # 70 at p. 6).

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II.

Legal Standard

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Motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) are “functionally

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identical” to motions for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Dworkin v. Hustler

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Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). The primary difference between the two is that

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a “Rule 12(c) motion, unlike a Rule 12(b)(6) motion, implicates the pleadings as a whole, and not

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merely the complaint.” Amerson v. County of Clark, 2011 WL 4433751, *1-2 (D. Nev. September

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21, 2011) (citing Aponte-Teorres v. Univ. of Puerto Rico, 445 F.3d 50, 54-55 (1st Cir. 2006)).

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In reviewing a motion for judgment on the pleadings pursuant to Rule 12(c), the court “must

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accept all factual allegations in the complaint as true and construe them in the light most favorable

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to the non-moving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Judgment on the

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pleadings is appropriate when, taking everything in the pleadings as true, the moving party is entitled

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to judgment as a matter of law. Ventress v. Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007);

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Honey v. Distelrath, 195 F.3d 531, 532 (9th Cir. 1999). The allegations of the nonmoving party must

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be accepted as true while any allegations made by the moving party that have been denied or

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James C. Mahan
U.S. District Judge

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contradicted are assumed to be false. MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th

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Cir. 2006).

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III.

Discussion

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“Interpretation of a contract is a matter of law. Whether a contract is ambiguous is also a

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question of law.” Beck Park Apartments v. U.S. Dep't of Hous. & Urban Dev., 695 F.2d 366, 369

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(9th Cir. 1982) (internal citations omitted).

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Hartford argues that plaintiff’s claims regarding the umbrella policy must be dismissed

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because the umbrella policy unambiguously stated that uninsured and underinsured motorist

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protection were not included in the policy. (Doc. # 74 at p. 2). Plaintiff responds by arguing that

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while coverage may not have been included in the policy, Hartford’s policy violated NRS 687B.440,

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which provides “[a]n insurer offering an umbrella policy to an individual shall obtain a signed

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disclosure statement from the individual indicating whether the umbrella policy includes uninsured

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or underinsured vehicle coverage.” NRS 687B.440; (doc. # 70 at p. 10). Hartford provides two

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alternative responses to plaintiff’s argument: (1) there is no private right of action under NRS

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687B.440 (doc. # 74 at p. 3) and (2) NRS 687B.440 is a notice statute that does not create a waiver

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(doc. # 74 at p. 4).

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Presently, Hartford does not dispute that it violated NRS 687B.440 when it failed to obtain

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a signed disclosure statement from plaintiff indicating that the umbrella policy did not include

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underinsured vehicle coverage. Hartford claims that the Nevada insurance code does not create a

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private right of action. (Doc. # 74 at p. 3). Hartford cites the 2007 Nevada Supreme Court decision,

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Allstate Insurance Co. v. Thorpe, which found that the Nevada insurance commissioner has express

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authority to “enforce the provisions of the Nevada insurance code,” and that the insurance

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commissioner has “exclusive jurisdiction in regulating the subject of trade practices in the business

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of insurance.” 170 P.3d 989, 994 (Nev. 2007) (citing NRS 679B.120(3); NRS 686A.015(1)).

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Plaintiff argues that Thorpe is not applicable because there is no statutory scheme that

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provides an administrative hearing or procedure that could grant relief when an insurer has admitted

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to a violation of the insurance code. (Doc. # 73 at p. 3). Plaintiff cites to another Nevada Supreme

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James C. Mahan
U.S. District Judge

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Court decision, Ippolito v. Liberty Mutual, which held that a private right of action existed for

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violation of uninsured and underinsured vehicle coverage statutes. 705 P.2d 134 (Nev. 1985).

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The Ippolito decision was issued in 1985 prior to the enactment of NRS 679B.120 (enacted

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1993) and NRS 686A.015 (enacted 1995). Therefore, while Ippolito did find a private right of action

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existed, it has since been overturned by the legislature. Since then the Nevada Supreme Court has

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found that the insurance commissioner alone has authority to enforce the insurance code. See Thorpe,

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170 P.3d at 994.

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IV.

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Conclusion
Therefore the court finds that there is no private right of action for violation of NRS

687B.440. Plaintiff’s claims regarding the umbrella policy will be dismissed.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Hartford’s

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motion for partial judgment on the pleadings (doc. # 51) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s countermotion for declaratory relief or in the
alternative for partial judgment on the pleadings (doc. # 71) is DENIED.
DATED June 17, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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