Michael Fitzsimonds et al vs Rocky Mountain Hospital and Medical Service, Inc.

Filing 21

ORDER - Defendant's # 10 Motion to dismiss the plaintiffs' second and third cause of action with prejudice, as well as their request to strike the plaintiffs' prayer for punitive damages is GRANTED. Signed by Judge Howard D. McKibben on 5/16/2013. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 17 MICHAEL AND LENORA FITZSIMONDS, ) ) Plaintiffs, ) ) vs. ) ) ROCKY MOUNTAIN HOSPITAL AND ) MEDICAL SERVICES,INC., dba ANTHEM ) BLUE CROSS BLUE SHIELD, ANTHEM UM ) SERVICES, INC., et al., a Nevada ) corporation 3:13-cv-00146-HDM-WGC ORDER Defendant. _________________________________ 18 Before this court is the defendant’s partial motion to dismiss 19 (#10). Plaintiffs have opposed the motion (#17) and defendant’s 20 have replied (#19). 21 The defendant moves to dismiss the plaintiffs’ second and 22 third causes of action. Additionally, the defendant requests that 23 the court strike the plaintiffs’ prayer for punitive damages. 24 In considering a motion to dismiss for failure to state a 25 claim under Fed. R. Civ. P. 12(b)(6), the court must accept as true 26 all material allegations in the complaint as well as all reasonable 27 inferences that may be drawn from such allegations. 28 1 LSO, Ltd. v. 1 Stroh, 205 F.3d 1146, 1150 (9th Cir. 2000). 2 complaint also must be construed in the light most favorable to the 3 nonmoving party. 4 Cir. 2000). The allegations of the Shwarz v. United States, 234 F.3d 428, 435 (9th 5 “Under the notice pleading standard of the Federal Rules, 6 plaintiffs are only required to give a ‘short and plain statement’ 7 of their claims in the complaint.” 8 1061, 1071 (9th Cir. 2009) (quoting Diaz v. Int’l Longshore & 9 Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)). Paulsen v. CNF Inc., 559 F.3d 10 While this rule “does not require ‘detailed factual allegations,’ . 11 . . it demands more than an unadorned, the-defendant-unlawfully- 12 harmed-me accusation.” 13 (May 18, 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 14 544, 555 (2007)). 15 factual matter . . . to state a claim to relief that is plausible 16 on its face.” 17 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 Thus, a complaint “must contain sufficient Id. The court first assesses the defendant’s motion to dismiss the 18 plaintiffs’ second cause of action for tortious breach of the 19 implied covenant of good faith and fair dealing. In Nevada, “the 20 tort remedy is necessarily a narrow one found, for example, in 21 insurance cases. . .” Hilton Hotels Corp. V. Butch Lewis 22 Productions, Inc., 107 Nev. 226, 233 n. 4 (1991). In order to 23 properly bring a claim for the tortious breach of the implied 24 covenant of good faith and fair dealing, there must be a “special 25 element of reliance or fiduciary duty” between the plaintiff and 26 the defendant. Id. 27 28 This case is a dispute over the execution of the terms of the settlement agreement. Though the action that gave rise to the 2 1 settlement agreement was an insurance dispute, the issues in that 2 case were resolved by the settlement agreement. There is no 3 fiduciary duty involved in this action; therefore, the court 4 concludes that the plaintiffs’ have failed to state a viable claim 5 for tortious breach of the implied covenant of good faith and fair 6 dealing. 7 The defendant also moves to dismiss the plaintiff’s third 8 cause of action for conversion. In order to bring a claim for 9 conversion, the plaintiffs must allege that the defendant 10 “wrongfully exerted” dominion “over [the plaintiffs’] personal 11 property in denial of, or inconsistent with his title or rights.” 12 Wantz v. Redfield, 74 Nev. 196, 198 (1958). 13 In this case, the plaintiffs’ personal property is not at 14 issue. The claim involves the defendant’s alleged failure to pay a 15 third party in accordance with the terms of the settlement 16 agreement. There is no assertion that the defendant “wrongfully 17 exerted dominion” over the plaintiffs’ personal property. 18 Therefore, plaintiffs have failed to state an actionable claim for 19 conversion. 20 Finally, the defendant has moved to strike the plaintiffs’ 21 prayer for punitive damages. In a breach of contract case damages 22 are limited to the damages arising out of the breach of the 23 contract. See A.C. Shaw Constr. v. Washoe Country, 105 Nev. 913 24 (1989)(holding that appellants were entitled to contract damages 25 arising from breach of contract irrespective of the existence of a 26 special relationship between the parties). Punitive damages are not 27 available in a breach of contract case unless there is also a 28 viable tort claim. See Sprouse v. Wentz, 105 Nev. 597, 604 3 1 (1989)(holding that punitive damages may only be awarded in a 2 breach of contract case if there is an underlying cause of action 3 sounding in tort). By this order, the court has dismissed the tort 4 claim in this case. The remaining claim is one for breach of 5 contract. Therefore, the plaintiff is not entitled to recover 6 punitive damages. 7 Accordingly, the defendant’s motion to dismiss the plaintiffs’ 8 second and third cause of action with prejudice, as well as their 9 request to strike the plaintiffs’ prayer for punitive damages is 10 GRANTED. 11 12 IT IS SO ORDERED. 13 DATED: This 16th day of May, 2013 14 15 ____________________________ UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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