Cromer v. Bristol West Insurance

 Motion for judgment as a matter of law
First, Cromer argues that he was entitled to judgment as a
matter of law because Coast breached its duty to settle by failing to offer
the policy limits early on or to otherwise adopt a settlement agreement
proposed by Cromer and Wilson. An insurer must settle claims promptly,
fairly, and equitably once its liability becomes reasonably clear. NRS
686A.310(1)(e). "Generally, an insurer who has no opportunity to settle
within policy limits is not liable for an excess judgment for failing to settle
the claim." Allstate Ins. Co. v. Miller, 125 Nev. 300, 315, 212 P.3d 318, 328
(2009) (internal quotation marks omitted). Further, an insurer has no
legal duty to accept a stipulated judgment agreement or otherwise pay an
amount exceeding the policy limits. Id. at 319, 212 P.3d at 331. The
record shows that Coast's representatives made ongoing efforts to verify
Cromer's injuries. Cromer's assertion that he was willing to settle and
sought to settle in the 51-day period is not credible, as no testimony
supported this contention, Cromer was comatose or barely conscious for
much of the period, and the log notes show a lack of cooperation with
Coast. Moreover, the proposed settlement agreement provided that Coast
would pay at least $1.1 or $1.2 million, exceeding the bodily-injury policy
limit of $15,000. We conclude that Coast presented sufficient evidence
that the jury could find in its favor.
Second, Cromer argues that he was entitled to judgment as a
matter of law because Coast breached its claim-processing duties to
investigate, to adopt reasonable standards for claims handling, and to
inform its insured about his claim. An insurer must adopt and follow
reasonable standards for promptly investigating and processing insurance
claims. NRS 686A.310(1)(c). Generally, investigations must be completed
within 30 days of receiving notice of a claim, unless that timeframe is not
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reasonable under the circumstances. NAC 686A.670(2). The record shows
that Coast staff made reasonable and ongoing efforts to verify Cromer's
injuries and complete its claims processing and that Coast's investigation
was slowed—reasonably, extending the time needed to complete the
investigation—by Cromer's noncooperation and delays in coordinating
with medical providers. A Coast employee testified that Coast followed
Nevada insurance regulations, and Cromer offers no support for his
contention that standards must be written. Coast's prompt decisions that
liability applied and a policy-limits offer was warranted strongly suggest
that Coast followed reasonable processing standards. Further, the
insurer's duty to inform its insured begins only upon receipt of a
settlement demand, Miller, 125 Nev. at 309, 212 P.3d at 325, and Cromer
never made a settlement demand to Coast—his medical-authorization
form was not a demand, as it did not state that it was a demand, did not
propose settlement terms, and was not signed by him We conclude that
substantial evidence shows Coast followed reasonable investigation and
claims-handling standards, and this properly went to the jury.
Motion for a new trial
Cromer argues that the district court abused its discretion in
denying his motion for a new trial because it was error to admit any
evidence of Wilson's intoxication. Cromer timely objected to mention of
the 2005 incident, but not the 2002 incident, of which he thus waived his
objection. NRS 47.040(1)(a); Old Aztec Mine, Inc. v. Brown, 97 Nev. 49,
52-53, 623 P.2d 981, 983-84 (1981). Cromer's motion in limine was not a
continuing objection. BMW v. Roth, 127 Nev. 122, 127, 252 P.3d 649, 625-
53 (2011). The district court instructed the jury to consider the 2005
incident only as to damages, and Wilson's testimony showed the incident
was relevant to his alleged emotional-distress damages. See NRS 48.015;
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NRS 48.025. Mention of this incident would not cause unfair prejudice,
especially as the district court provided a limiting instruction and evidence
of this incident was less grave than the unobjected-to 2002 incident that
nearly killed Cromer. See NRS 48.035(2); Krause Inc. v. Little, 117 Nev.
929, 935, 937, 34 P.3d 566, 570-71 (2001). No admonishment or stronger
curative instruction was required. Campus Viii. Shopping Ctr. Trust v.
Brown, 102 Nev. 17, 18, 714 P.2d 566, 567 (1986) (noting that the trial
judge has discretion to control counsel's conduct at trial). We conclude
that the district court did not abuse its discretion in refusing Cromer's
requested relief on this basis.
Additionally, Cromer argues that the district court abused its
discretion in denying his motion for a new trial because defense counsel
committed misconduct by (1) advocating jury nullification, (2) injecting
improper personal opinion, (3) seeking to prejudice the jury with
intoxication evidence, (4) presenting perjured expert testimony, and (5)
violating a district court order prohibiting the argument that Coast's
actions were justified by the need to protect other policyholders. For
unobjected-to misconduct, the error is generally waived, though this court
may review for plain error. Lioce v. Cohen, 124 Nev. 1, 19, 174 P.3d 970,
981-82 (2008). To establish plain error, Cromer must show that the
misconduct amounted to "irreparable and fundamental error," i.e., "error
that results in a substantial impairment of justice or denial of
fundamental rights such that, but for the misconduct, the verdict would
have been different." Id. at 19, 174 P.3d at 982.
Cromer failed to preserve his objections to counsel's jury
nullification advocacy, counsel's alleged improper personal opinion,
evidence of Wilson's drunk driving, and the presentation of allegedly
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perjured expert testimony. We conclude that Cromer failed to
demonstrate plain error because the verdict would not have been different
absent the contested comments in light of the considerable evidence
supporting the jury's verdict. We also conclude that Cromer failed to show
misconduct when he did not support his argument with evidence that
Coast improperly sought to prejudice the jury by referencing Wilson's
intoxication because that evidence was properly admitted. Cromer's
reliance on Kransco v. American Empire Surplus Lines Insurance
Company, 2 P.3d 1 (Cal. 2000), is misplaced, as that case involved a
different factual situation. Finally, we conclude that Cromer did not show
misconduct with his argument that Coast violated a district court order
relating to discussing other policyholders because the district court barred
the parties generally from discussing matters not supported by evidence,
Coast's expert's report addressed this matter, and Cromer's counsel
conceded that this topic would be proper if addressed in Coast's expert's
report. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Saitta
Pieku
%bons Pickering
cc: Hon. Jerry A. Wiese, District Judge
Salvatore C. Gugino, Settlement Judge
Christensen Law Offices, LLC
Feldman Graf
John Frederick Querio
Eighth District Court Clerk
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