Castronovo-Flihan v. State Farm Mutual Automobile Insurance Company
Filing
62
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).
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
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
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& 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
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& 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
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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
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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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