Trice v. Liberty Insurance Corporation ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 GERALDINE TRICE, Case No. 2:20-cv-02139-KJD-NJK 8 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 9 v. 10 LIBERTY MUTUAL INSURANCE COMPANY, 11 Defendant. 12 Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint (ECF #4). 13 Plaintiff responded in opposition (ECF #11) and Defendant replied (ECF #14) 14 I. Factual and Procedural Background 15 Plaintiff Geraldine Trice (“Trice”) filed this action against Defendant Liberty Mutual 16 Insurance Company (“Liberty”) in Nevada state court on July 10, 2020. (ECF #1-1). The action 17 arises from a claim that Trice submitted to Liberty for damage to her home and theft of her 18 personal property. Id. at 6. Liberty investigated the claim and made a payment of $1,587.06 for 19 the property damage. Id. Liberty required Trice to obtain a police report reflecting the stolen 20 items before it could make any payment for the theft. Id. Trice sent a copy of the police report to 21 Liberty, who denied her claim. Id. at 7. Trice then sent Liberty multiple letters demanding 22 payment for her stolen property in the amount of $40,550. Id. Liberty did not respond to the 23 letters. Id. Liberty removed the action to this Court and then filed the instant motion to dismiss. 24 Liberty makes three arguments for why the action should be dismissed. First, Trice’s policy 25 contains a valid one-year limitation for all actions against Liberty for denials of a claim and Trice 26 failed to bring this action within that window. (ECF #4, at 6). Second, Trice failed to properly 27 name the defendant and Liberty Mutual Insurance Company is not a party to the insurance 28 1 policy. Id. at 7. The proper name of the insurer is Liberty Insurance Corporation. Id. at 8. Third, 2 Trice’s complaint fails to allege sufficient facts to state a plausible claim upon which relief may 3 be granted for her third cause of action, violation of the Nevada Unfair Claims Settlement Act. 4 Id. 5 II. Legal Standard 6 Under Rule 8, a pleading must contain “a short and plain statement of the claim showing 7 that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint does not require 8 “detailed factual allegations,” but “requires more than labels and conclusions, and a formulaic 9 recitation of the elements of a cause of action will not do.” Bell Atlantic Co. v. Twombly, 550 10 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient 11 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 12 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). All “[f]actual 13 allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 14 U.S. at 555. While the court “must take all of the factual allegations in the complaint as true, we 15 ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” Iqbal, 556 16 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “When the claims in a complaint have not 17 crossed the line from conceivable to plausible, the complaint must be dismissed.” Hendon v. 18 Geico Ins. Agency, 377 F.Supp.3d 1194, 1196 (D. Nev. 2019). 19 “Generally, a district court may not consider any material beyond the pleadings in ruling 20 on a Rule 12(b)(6) motion . . . However, material which is properly submitted as part of the 21 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner 22 & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Documents “‘whose contents are alleged in a 23 complaint and whose authenticity no party questions, but which are not physically attached to the 24 pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss’ without converting 25 the motion to dismiss into a motion for summary judgment.” Patel v. American Nat’l. Property 26 and Cas. Co., 367 F.Supp.3d 1186, 1191 (D. Nev. 2019) (quoting Branch v. Tunnell, 14 F.3d 27 449, 454 (9th Cir. 1994) (overturned on other grounds)). 28 1 III. Analysis 2 The Court construes a pro se motion liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) 3 (“A document filed pro se is to be liberally construed . . .”). However, the Court “lacks the 4 power to act as a party’s lawyer, even for pro se litigants.” Bias v. Moynihan, 508 F.3d 1212, 5 1219 (9th Cir. 2007). While construing Trice’s motion liberally, the Court finds that dismissal is 6 appropriate as the limitation period in the insurance policy was valid and Trice failed to allege 7 sufficient facts to support her claim that Liberty violated Nevada’s Unfair Claims Settlement 8 Act. 9 Trice’s action against Liberty for the denial of her claim is barred because she failed to 10 bring the action within one year after her claim was denied. “Nevada law permits an insurer to 11 protect itself from remote claims by implementing explicit, unambiguous time limitations in its 12 insurance contracts, so long as the limitations provision does not run afoul of important public 13 policy considerations.” Roash v. Automobile Ins. Co. of Hartford, Conn., No.2:19-cv-00035- 14 GMN-BNW, 2020 WL 607120, at *2 (D. Nev. Feb. 7, 2020) (internal quotations and citations 15 omitted). Such limitations are enforceable, “so long as the period provided in the contract is a 16 ‘reasonable balance between the insurer’s interest in prompt commencement of action and the 17 insured’s need for adequate time to bring suit.’” Williams v. Travelers Home and Marine Ins. 18 Co., 740 Fed.App’x. 134, 135 (9th Cir. 2018) (quoting Clark v. Truck Ins. Exchange, 598 P.2d. 19 628, 629 (Nev. 1979)). 20 The one-year limitation provision provided in Trice’s policy is valid because it is explicit 21 and does not violate public policy. The provision provides: 8. Suit Against Us. No action can be brought against us unless the policy 22 provisions have been complied with. Any action against us for denial of a claim, 23 in whole or in part, must be commenced at any time up to, but not to exceed, one year from the date of the denial of the claim. 24 This is an explicit and unambiguous agreement that Trice could only bring an action against 25 Liberty within one year of the denial of her claim. Trice’s complaint states that on October 17, 26 2017, she mailed a copy of the police report to Liberty as requested. The next paragraph, while 27 not indicating a date, states that “Defendants issued a letter denying the Claim.” Trice then sent 28 letters demanding payment of $40,550 for the loss of her property. Liberty argues that it denied 1 Trice’s claim on December 21, 2017. This is consistent with the timeline laid out in Trice’s 2 complaint and constitutes the date on which Trice’s one-year limitation began to run. Trice did 3 not file her complaint until July 22, 2020, more than a year and a half after the one-year 4 limitation had expired. Additionally, the Court is unaware of a public policy that would be 5 violated by upholding this limitation period. Therefore, because the limitation clause was valid 6 and Trice failed to bring this action within that one-year window, Trice is barred from bringing 7 an action against Liberty for denial of a claim. 8 Trice’s complaint also fails to state a claim for which relief may be granted for her third 9 cause of action involving the Nevada Unfair Claims Settlement Practices Act. A complaint “must 10 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 11 face.’” Ashcroft, 556 U.S. at 678. Trice merely states that Liberty had a duty to investigate 12 Trice’s claim and cites the relevant statute for the Nevada Unfair Claims Settlement Practices 13 Act. There is no factual allegation whatsoever to support the assertion that Liberty violated the 14 Act. “This type of cut-and-paste allegation is precisely what the Supreme Court held to be 15 insufficient in Iqbal and Twombly.” Chang v. CSAA General Ins. Co., No. 2:14-cv-01411- 16 GMN-CWH, 2015 WL 1443175, at *2 (D. Nev. Mar. 30, 2015). Trice has failed to allege any 17 facts to support her claim for her third cause of action. Normally, such a failure to state a claim 18 could be cured and leave would be granted to amend the complaint. However, because all actions 19 against the insurer are barred by the limitation provision in the contract, amendment would be 20 futile. As such, the cause of action must be dismissed. 21 Because Trice failed to bring the action within one year of the denial of her claim, in 22 violation of the valid contractual limitation provision, she is barred from bringing the action 23 against Liberty. Additionally, because Trice failed to allege facts sufficient to support her 24 Nevada Unfair Claims Settlement Practices Act claim, it must be dismissed. 25 // 26 // 27 // 28 // ] ITV. Conclusion 2 Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (ECF #4) □□ GRANTED. 4 IT IS FURTHER ORDERED that the Clerk enter JUDGMENT for Defendant and against Plaintiff. 6 | Dated this 2nd day of August, 2021. 7 ~ Lao. Kent J. Dawson 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _5-