Spencer v. Nev. Direct Insurance Co. ( 2015 )

 default judgment against Lopez and issued the declaratory relief that
Nevada Direct sought, declaring, among other things, that Nevada Direct
had no duty to defend or indemnify Lopez in the action brought by
Spencer.
Subsequently, Spencer and his insurance each filed motions
for reconsideration raising, for the first time, that Nevada's financial
responsibility laws applied, in particular NRS 485.3091(5)(a), and that
even the failure of a supposed condition precedent to coverage—i.e. Lopez's
alleged non-cooperation with Nevada Direct's investigation and defense—
could not negate those protections. The district court denied these
motions. After the timeline for appealing the existing judgment had
passed, assuming that judgment was final, Spencer filed a motion for
summary judgment on declaratory relief in the same action, arguing, once
again, that Nevada's financial responsibility laws applied. The district
court denied this motion, "in concurrence with its prior rulings in this
matter." Spencer then appealed this denial.
DISCUSSION
We are inclined to agree with Spencer that the supposed
failure of a condition precedent to coverage cannot defeat the protections
of Nevada's financial responsibility laws given NRS 485.3091(5)(a). The
section's text supports this outcome inasmuch as it provides that "[t]he
liability of the insurance carrier with respect to the insurance required by
this chapter becomes absolute whenever injury or damage covered by the
policy occurs," NRS 485.3091(5)(a) (emphasis added), and "the word
'absolute,' as used in a motor vehicle financial responsibility act . . . means
that there will be no defenses to liability of the insurer based . . . upon
exclusions, conditions, terms, or language contained in the policy."
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7A Steven Plitt et al., Couch on Insurance § 104:45 (3d ed. 2013)
(emphasis added). The policy underlying our financial responsibility laws
counsels likewise. See Hartz v. Mitchell, 107 Nev. 893, 896, 822 P.2d 667,
669 (1991) ("Nevada has a strong public policy interest in assuring that
individuals who are injured in motor vehicle accidents have a source of
indemnification. Our financial responsibility law reflects Nevada's interest
in providing at least minimum levels of financial protection to accident
victims."). And the precedent of foreign courts interpreting nearly
identical statutes is in accord. See Harris v. Prudential Prop. & Gas. Ins.
Co., 632 A.2d 1380, 1382 (Del. 1993) (non-cooperation of insured cannot
defeat application of absolute liability statute where innocent third party
is injured); Dave Ostrem Imps., Inc. v. Globe Am. Cas./ GRE Ins. Grp., 586
N.W.2d 366, 368 (Iowa 1998) (condition precedent to coverage cannot
defeat application of absolute liability statute); Teeter v. Allstate Ins. Co.,
192 N.Y.S.2d 610, 615 (App. Div. 1959) ("It is impossible to reconcile the
existence of a right to rescind ab initio with the general scheme of the
compulsory insurance law."), aff'd, 173 N.E.2d 47 (N.Y. 1961); cf. Kambeitz
v. Acuity Ins. Co., 772 N.W.2d 632, 638 (N.D. 2009) (stating that foreign
courts have "universally held or recognized" that an insurer cannot
"retrospectively avoid coverage . . . so as to escape liability to a third
party" on fraud and misrepresentation, grounds relating to the inception
of the policy (alteration in original) (internal quotations omitted)).
However, we cannot, on this record, reverse the district court's
declaratory judgment. Spencer brought no counterclaims in the original
declaratory relief action, nor did he expand on the affirmative defenses
incorporate[d]" by his insurance provider's answer, or even raise the
existence of NRS 485.3091(5)(a) until after the declaratory relief issued.
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And, that judgment disposed of all the issues presented by Nevada Direct's
complaint in that it issued the very declaratory relief that Nevada Direct
sought. Thus, the original declaratory judgment left nothing for the future
consideration of the court in the matter and was final. See Lee v. GNLV
Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000). The district court
therefore lacked jurisdiction to render a decision on Spencer's subsequent
motion for summary judgment as there are a limited number of motions
that may be filed once an un-appealed final judgment issues, of which a
motion for summary judgment is not one. See SFPP, L.P. v. Second
Judicial Dist, Court, 123 Nev. 608, 612, 173 P.3d 715, 717-18 (2007). It
follows that this court could not acquire jurisdiction over Spencer's appeal
thereof. See Quintero v. United States, 281 F.3d 1279 (5th Cir. 2001).
Accordingly, Spencer's appeal must be DISMISSED.
Parraguirre
as
J.
Cherry
cc: Hon. Michael Villani, District Judge
Salvatore C. Gugino, Settlement Judge
Mueller Hinds & Associates
Murchison & Cumming, LLC/Las Vegas
Eighth District Court Clerk
Nevada Division of Insurance
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