Lombardo v. Property and Casualty Insurance Company of Hartford et al

Filing 4

ORDER denying 1 motion for preliminary injunction. Signed by Judge James C. Mahan on 8/28/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 PATRICIA LOMBARDO, 8 9 10 11 Case No. 2:17-CV-2242 JCM (PAL) Plaintiff(s), ORDER v. PROPERTY AND CASUALTY INSURANCE COMPANY OF HARTFORD, et al., Defendant(s). 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge Presently before the court is the matter of Lombardo v. Property and Casualty Insurance Company of Hartford et al, case number 2:17-cv-02242-JCM-PAL. I. Background Plaintiff purchased a homeowner’s insurance policy in late 2012 from defendant Property and Casualty Insurance Company of Hartford (“Hartford”) on her residence at 1725 Bannie Ave., Las Vegas, NV 89102 (“the residence”). (ECF No. 1-1 at 42). Around October 28, 2013, a windstorm caused trees to fall onto plaintiff’s residence. Id. Sometime thereafter, plaintiff’s house became not fit to live in, and Hartford, through its agent ALE Solutions (“ALE”), coordinated temporary housing for plaintiff. Id. at 43. Around December 17, 2014, plaintiff leased the premises located at 3100 Plaza De Rosa, Las Vegas, Nevada (“the premises”) from Brown Blankfield Group (“landlord”). Id. Plaintiff claims that the premises were selected in part due to plaintiff’s unique situation (plaintiff is 84 years old, legally blind, and provides full-time care for her 63-year old daughter with special needs). Hartford paid rent on the premises up until June 30, 2017. Id. at 44. The payments were made under the “Loss of Use” provision of plaintiff’s contract with Hartford, which has a $79,400 1 cap. Id. at 66 (providing a copy of the continuation page of the homeowner’s policy that details 2 limits on liability); id. at 90 (providing a copy of the insurance contract and the “Loss of Use” 3 provision). 4 Prior to ceasing rent payments, Hartford, through ALE, informed the landlord of its intent 5 to cease payments. Id. The landlord initiated eviction proceedings against plaintiff, and a hearing 6 was held on July 27, 2017. Id. The parties have not advised the court on the status of eviction 7 proceedings. 8 On August 2, 2017, plaintiff filed a complaint in state court against Hartford, ALE, and 9 unnamed defendants. Id. at 27. Plaintiff asserts six causes of action: (1) breach of contract against 10 Hartford and ALE; (2) breach of implied covenant of good faith and fair dealing against Hartford 11 and ALE; (3) breach of fiduciary duty against Hartford and ALE; (4) intentional infliction of 12 emotional distress against Hartford and ALE; (5) insurance bad faith against Hartford; and (6) a 13 request for injunctive relief against Hartford and ALE. Id. at 17-26. 14 On August 24, 2017, Hartford filed a petition for removal. (ECF No. 1). In its notice, 15 Hartford does not discuss any motions pending in state court at the time of removal. Id. However, 16 Exhibit 1, the state court file, includes plaintiff Patricia Lombardo’s motion for preliminary 17 injunction. (ECF No. 1-1 at 31–55). The motion was docketed in state court on August 3, 2017. 18 (ECF No. 1-1 at 31). On August 9, 2017, Hartford received service of process of the complaint 19 and preliminary injunction. (ECF No. 1-1 at 2). Neither defendant has responded to the motion. 20 II. Legal Standard 21 “An injunction is a matter of equitable discretion . . . an extraordinary remedy that may 22 only be awarded upon a clear showing that the plaintiff is entitled to such relief. Winter v. 23 N.R.D.C., 555 U.S. 7, 20, 129 S.Ct. 365,374 (2008). Courts must consider the following elements 24 in determining whether to issue a temporary restraining order and preliminary injunction: (1) a 25 likelihood of success on the merits; (2) likelihood of irreparable injury if preliminary relief is not 26 granted; (3) balance of hardships; and (4) advancement of the public interest. Id. at 20. The test 27 is conjunctive, meaning the party seeking the injunction must satisfy each element. 28 James C. Mahan U.S. District Judge -2- 1 Before a preliminary injunction may issue, the plaintiff must show that it will suffer an 2 irreparable injury and otherwise lacks an adequate remedy at law to prevent such injury. 3 “Irreparable harm is traditionally defined as harm for which there is no adequate legal remedy.” 4 Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). 5 III. Discussion 6 Plaintiff requests a temporary restraining order and preliminary injunction that would 7 compel Hartford to pay her rent for substitute housing under the “Loss of Use” provision of her 8 insurance contract. (ECF No. 1-1 at 47–49). Plaintiff asserts that, because Hartford has not 9 fulfilled its contractual requirement to repair her house, Hartford must continue to pay her rent for 10 temporary housing notwithstanding the policy’s $79,400 cap on loss of use payments. Plaintiff 11 requests that the court compel defendant to make rent payments immediately. Although not 12 directly stated in the motion, the strong inference is that plaintiff cannot otherwise make rent 13 payments during the pendency of her case. As plaintiff is 84 years old, legally blind, and cares for 14 her 63-year old special-needs daughter, plaintiff asserts that she would be irreparably harmed if 15 this court does not enter a preliminary injunction. 16 Courts sitting in equity generally do not issue preliminary injunctions to compel payments 17 under a contract during the pendency of a case. The Supreme Court considered the issue in Great- 18 West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002), stating: 19 20 21 22 “[A]n injunction to compel the payment of money past due under a contract, or specific performance of a past due monetary obligation, was not typically available in equity. Those rare cases in which a court of equity would decree specific performance of a contract to transfer funds were suits that, unlike the present case, sought to prevent future losses that were either incalculable or would be greater than the sum awarded.” Id. at 210–11 (citations and footnote omitted). 23 Here, the plaintiff has not demonstrated irreparable harm. Plaintiff claims breach of 24 25 contract against defendants Hartford and ALE and requests the court require defendants’ continued performance under the contract notwithstanding the policy’s $79,400 cap on loss of use payments. 26 Plaintiff details in her motion the hardship that herself and her daughter would incur upon eviction 27 from their temporary housing arrangement. However, plaintiff does not demonstrate that any harm 28 occasioned upon such occurrence is incapable of being reduced to money damages or would be James C. Mahan U.S. District Judge -3- 1 less than the sum awarded on final judgment. See Knudson, 534 U.S. at 210–11. Therefore, 2 plaintiff is not entitled to injunctive relief. See id.; Brewer, 757 F.3d at 1068. 3 IV. Conclusion 4 In the present case, plaintiff’s motion does not clearly demonstrate that plaintiff is entitled 5 to the extraordinary remedy of injunctive relief. See Winter, 555 U.S. at 22. Thus, at this time, 6 the court will not compel Hartford to continue payments under plaintiff’s insurance contract. 7 Accordingly, 8 IT IS HEREBY ORDERED that plaintiff’s motion for preliminary injunction (ECF No. 1- 9 10 11 12 1 at 31–55) be, and the same hereby is, DENIED. DATED August 28, 2017. __________________________________________ UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -4-

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