Olsen v. Fisher et al

Filing 29

ORDER denying 16 Defendant's Motion to Dismiss. See Order for specifics. Signed by Chief Judge Robert C. Jones on 8/3/2012. (Copies have been distributed pursuant to the NEF - HJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEBORAH OLSEN,

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Plaintiff,
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v.
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ALEXANDER FISHER, et al.,
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Defendants.
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___________________________________ )

3:12-cv-80-RCJ-WGC
ORDER

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Currently before the Court is a motion to dismiss (#16) for failure to state a claim filed
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by Defendant Cruise America, Inc. For the following reasons, the Court denies the motion to
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dismiss (#16).
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BACKGROUND
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On September 6, 2010, Plaintiff Deborah Olsen’s vehicle was struck by an RV driven
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by Alexander Fisher while stopped on West Williams Avenue in Fallon, Nevada. (Second Am.
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Compl. (#13) at 2). The RV was rented from Cruise America, Inc. by Yakov Nudel. (Id.).
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Cruise America had an auto insurance policy covering the RV with Empire Fire & Marine
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Insurance Company (“Empire”), which was underwritten by Zurich American Insurance
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Company (“Zurich”). (Id. at 3). Both Empire and Zurich denied coverage under the policy and
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refused to indemnify and defend Fisher and Nudel. (Id.). A default judgment was later
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entered by the Third Judicial District Court of the State of Nevada against Fisher and Nudel
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on August 9, 2011 in the amount of $125,802.80. (Default Judgment (#13-1)).
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Olsen then filed a complaint and later a first amended complaint in Nevada state court
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against Fisher, Nudel, Cruise America, Empire, and Zurich.1 (First Am. Compl. (#2-1) at 1).

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The first amended complaint advanced a single cause of action for declaratory relief pursuant

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to NRS § 30.010 et seq., seeking a declaration on the parties’ respective rights and obligations

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and for a judgment declaring that Empire and Zurich had a duty to defend and indemnify

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Fisher and Nudel. (Id. at 3-4). This action was then removed to this Court on February 9,

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2012. (Pet. for Removal (#2)).

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Cruise America did not believe it was sufficiently implicated in the first amended

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complaint and after consulting with Plaintiff the two parties entered into a stipulation in which

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Plaintiff agreed to file a second amended complaint to rectify the perceived error. (Stipulation

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(#11); Order (#12); Mot. to Dismiss (#16-1) at 2). Olsen filed a second amended complaint

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on March 30, 2012 against Fisher, Nudel, Cruise America, Empire, and Zurich. (Second Am.

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Compl. (#13) at 1). The second amended complaint again contains only a single cause of

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action for declaratory relief pursuant to NRS § 30.010 et seq., requesting this Court to declare

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the rights and obligations of the parties under the insurance policy and to declare that Empire

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and Zurich have a duty to defend and indemnify Fisher and Nudel. (Id. at 3-4). The only

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apparent changes made in the second amended complaint are additional allegations that

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Cruise America had an obligation to insure the vehicle, that it breached this duty by failing to

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adequately insure the vehicle, and that this breach resulted in damages to Plaintiff. (Second

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Am. Compl. (#13) at 2-3).

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Cruise America filed a motion to dismiss the second amended complaint for failure to

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state a claim on April 13, 2012. (Mot. to Dismiss (#16)).

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LEGAL STANDARD

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The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test

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the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

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“[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled

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to offer evidence to support the claims.” Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th

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The original complaint was not provided to this Court upon removal.
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Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

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To avoid a Rule 12(b)(6) dismissal, a complaint must plead “enough facts to state a

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claim to relief that is plausible on its face.” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017,

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1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

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is plausible on its face “when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). Although detailed factual allegations are not required, the

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factual allegations “must be enough to raise a right to relief above the speculative level.”

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Twombly, 550 U.S. at 555. All well-pleaded factual allegations will be accepted as true and

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all reasonable inferences that may be drawn from the allegations must be construed in the

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light most favorable to the nonmoving party. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.

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2003).
DISCUSSION

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The only cause of action contained in the second amended complaint is a claim for

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declaratory relief pursuant to NRS § 30.010 et seq. Cruise America contends that because

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no relief is being sought against it under the single cause of action for declaratory relief,

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Plaintiff has not stated a claim upon which relief may be granted. (Mot. to Dismiss (#16-1) at

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4).

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The Uniform Declaratory Judgments Act contained in NRS §§ 30.010 through 30.160

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permits a court “to declare rights, status and other legal relations whether or not further relief

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is or could be claimed.” NEV . REV. STAT . § 30.030. Pursuant to NRS § 30.130, “When

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declaratory relief is sought, all persons shall be made parties who have or claim any interest

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which would be affected by the declaration, and no declaration shall prejudice the rights of

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persons not parties to the proceeding.” In her claim for declaratory relief, Plaintiff alleges that

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a controversy exists between the parties regarding their rights and liabilities under the auto

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insurance policy and requests that this Court declare their respective rights and obligations

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under the policy. Cruise America is the holder of the policy and a party to the insurance

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contract, and thus has an interest which may be affected by a declaration of this Court
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regarding the rights and obligations of the parties under the contract.

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accordingly requires that Cruise America be made a party to this action. Plaintiffs have

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therefore properly stated a claim against Cruise America and Cruise America’s motion to

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dismiss is consequently denied.
CONCLUSION

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NRS § 30.130

For the foregoing reasons, IT IS ORDERED that Cruise America’s motion to dismiss
(#16) is DENIED.

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3rd
DATED: This _____ day of August, 2012.

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_________________________________
United States District Judge

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