Copper Sands Homeowners Assoc. v. Truck Ins. Exchange ( 2015 )

 Appellants assert that the district court wrongly applied a
settlement and release to their claims against an insurance carrier
because their claims were based on misconduct occurring after the release
was executed. Appellants further assert that the district court wrongly
dismissed their claims against the insurance carrier's attorneys based on
their failure to assert any special relationship with the attorneys because
they validly asserted that an attorney-client relationship existed. Finally,
they assert that, regardless, the district court erred in dismissing their
fraud claims against all respondents.
We review the district court's summary judgments and order
dismissing for failure to state a claim de novo. Buzz Stew, LLC v. City of
N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008) (explaining that
a complaint should be dismissed under NRCP 12(b)(5) "only if it appears
beyond a doubt that [the plaintiff] could prove no set of facts, which, if
true, would entitle it to relief'); Wood v. Safeway, Inc., 121 Nev. 724, 729,
121 P.3d 1026, 1029 (2005) (noting that summary judgment is appropriate
when the pleadings and other evidence on file, viewed in the light most
favorable to the nonmoving party, demonstrate that no genuine issue of
material fact remains in dispute and that the moving party is entitled to
judgment as a matter of law). It is appellants' burden to demonstrate
error warranting reversal. Schwartz v. Estate of Greenspun, 110 Nev.
1042, 1051-52, 881 P.2d 638, 644 (1994); Lady Bryan Gold & Silver Min.
Co. v. Lady Bryan Min. Co., 4 Nev. 414, 416 (1868).
Here, appellants have not met their burden. With respect to
the claims against the insurance carrier, while their amended complaint
alleged ongoing misconduct, they have not pointed to any claim based on a
set of facts unrelated to the prior actions released in the settlement or
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occurring only after the settlement and release was signed; the defense of
which they complain was tendered to and accepted by the insurance
carrier before the release was executed.
Regarding the claims against the attorneys, appellants have
pointed to no authority stating that attorneys who represent an insurance
carrier also represent its insureds. CI Nev. Yellow Cab Corp. v. Eighth
Judicial Dist. Court, 123 Nev. 44, 50-51, 152 P.3d 737, 741 (2007) (holding
that an attorney retained by an insurer to represent its insureds
represents both the insureds and the insurer, absent a conflict); Spratley
v. State Farm Mut. Auto Ins. Co., 78 P.3d 603, 607-08 (Utah 2003) (same).
Further, the district court properly relied on affidavits contradicting
federal district court minutes. In re Amerco Derivative Litig., 127 Nev.,
Adv. Op. 17, 252 P.3d 681, 699 n.9 (2011) (judicial notice is not properly
taken of facts stated within a court document); Mack v. Estate of Mack,
125 Nev. 80, 91, 206 P.3d 98, 106 (2009) ("As a general rule, we will not
take judicial notice of records in another and different case, even though
the cases are connected.").
Finally, we agree with respondents that appellants failed to
state any fraud claims that would warrant reversal of the summary
judgment and dismissal order. Within the context of the bad faith/unfair
claims practices allegations, the complaint alleged that respondents
misrepresented amounts available on insurance policies and coverage.
This is not sufficient to state a claim for fraud under NRCP 9(b). Rocker v.
KPMG LLP, 122 Nev. 1185, 1192, 148 P.3d 703, 708 (2006) ("To plead with
particularity, plaintiffs must include in their complaint averments to the
time, the place, the identity of the parties involved, and the nature of the
fraud." (internal quotations omitted)), abrogated on other grounds by Buzz
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Stew, 124 Nev. 224, 181 P.3d 670. Accordingly, the district court did not
err in granting summary judgment and dismissing appellants' claims.
Therefore, we
ORDER the judgment of the district court AFFIRMED.
, J.
Saitta
, x)(2
Gibbons
J.
7
Piaeu ' ,
Pickering
cc: Hon. Joanna Kishner, District Judge
Salvatore C. Gugino, Settlement Judge
Law Offices of Terry L. Wike
Feldman Graf
Murchison & Cumming, LLC/Las Vegas
Eighth District Court Clerk
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(0) 1.947A ofer,