Willis Of Ariz., Inc. v. Hakkasan Usa, Inc. C/W 82833

IN THE SUPREME COURT OF THE STATE OF NEVADA
WILLIS OF ARIZONA, INC., AN No. 82829
ARIZONA CORPORATION; AND
WILLIS TOWERS WATSON
INSURANCE SERVICES WEST, INC., A FILE
CALIFORNIA CORPORATION,
Appellants, AUG 0 4 2022
vs. ELIZABETH A. BROWN
CLERK QFPVPREME COURT
HAKKASAN USA, INC., A DELAWARE By • Y
DEPUTY CLERK
CORPORATION,
Res sondent.
WILLIS OF ARIZONA, INC.; AND No. 82833
WILLIS TOWERS WATSON
INSURANCE SERVICES WEST, INC.,
Petitioners,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
ELIZABETH GOFF GONZALEZ,
DISTRICT JUDGE,
Respondents,
and
HAKKASAN USA, INC.; ENDURANCE
AMERICAN SPECIALITY INSURANCE
COMPANY; AND SOMPO
INTERNATIONAL HOLDINGS, LTD.,
Real Parties in Interest.
ORDER OF AFFIRMANCE IN DOCKET NO. 82829
AND ORDER DENYING PETITION FOR A WRIT OF MANDAMUS IN
DOCKET NO. 82833
Docket No. 82833 is an original petition for a writ of mandamus
challenging a district court's refusal to enforce a contractual jury waiver
agreement and is consolidated with Docket No. 82829, which is an appeal
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from a district court order denying a motion to compel arbitration under the
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same contract. Eighth Judicial District Court, Clark County; Elizabeth Goff
Gonzalez, Judge.
Respondent/real party in interest Hakkasan USA, Inc.,
purchased an insurance policy from real party in interest Sompo
International Holdings, Ltd., for April 2019 through April 2020 through
insurance brokers, appellants/petitioners Willis of Arizona, Inc., and Willis
Towers Watson Insurance Services West, Inc. (collectively, Willis).
Hakkasan and Willis's relationship was governed by Willis's Broker Terms,
Conditions and Disclosures (T&Cs), which included a dispute resolution
clause waiving the parties' rights to a jury trial and if that wavier was
unenforceable then providing the dispute would be resolved through
arbitration. When the Covid-19 pandemic affected Hakkasan's business,
Hakkasan informed Willis it was going to make a claim to Sompo.
Hakkasan alleges Willis worked with Sompo to adopt and postdate a limit
on the amount Hakkasan could recover under the 2019-2020 policy.
Hakkasan filed a tort action against Willis and demanded a jury trial.
Willis moved to strike the jury demand or in the alternative to compel
arbitration. The district court denied Willis's motion concluding that
Hakkasan's claims against Willis did not fall under the scope of the T&Cs.
Willis then filed the petition for a writ of mandamus in Docket No. 82833
challenging the denial of the motion to strike the jury demand and an
appeal in Docket No. 82829 challenging the denial of the motion to compel
arbitration.
Docket No. 82833
A writ of mandamus is available to compel the performance of
an act that the law requires as a duty resulting from an office, trust, or
station, or to control an arbitrary or capricious exercise of discretion. NRS
34.160; Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193,
SUPREME COURT 197, 179 P.3d 556, 558 (2008). This court has previously concluded that the
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issue of a denial to strike a jury demand is properly raised in a writ petition.
Lowe Enters. Residential Partners, L.P. v. Eighth Judicial Dist. Court, 118
Nev. 92, 97, 40 P.3d 405, 408 (2002). "Even in a writ petition, this court
reviews de novo issues of law, such as contract and statutory
interpretation." State, Dep't of Transp. u. Eighth Judicial Dist. Court, 133
Nev. 549, 553, 402 P.3d 677, 681 (2017). "This court initially determines
whether the language of the contract is clear and unambiguous; if it is, the
contract will be enforced as written." Nev. State Educ. Ass'n. v. Clark Cty.
Educ. Ass'n., 137 Nev. 76, 83, 482 P.3d 665, 673 (2021) (internal quotation
marks omitted).
The four claims Hakkasan asserted against Willis are not
contractual claims and do not concern the purchase of insurance. They
concern the allegation that Willis interfered with Hakkasan's recovery
under a claim. The dispute resolution section in the T&Cs applies to "any
disputes arising out of or in connection with the services provided under
these" T&Cs. Willis only provided the service of assisting Hakkasan with
purchasing insurance, and once the purchase was complete, Willis was no
longer providing Hakkasan any services. Thus, Willis's actions thereafter
in allegedly disclosing Hakkasan's upcoming Covid-19 claim to Sompo fell
outside of its services in assisting Hakkasan with purchasing insurance for
2019-2020. The T&Cs are not ambiguous and Willis's alleged actions do not
arise out of or in connection with the purchase of insurance for the 2019-
2020 year. Thus, the district court did not arbitrarily or capriciously
conclude that the T&Cs did not govern Hakkasan's underlying claims, and
we deny the petition for a writ of mandamus in Docket No. 82833)
'The district court did not directly consider whether the jury waiver
clause was enforceable and because the T&Cs do not govern the dispute, we
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need not consider that issue. Further, the district court's prior order
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Docket No. 82829
Next, Hakkasan argues this court lacks jurisdiction over the
appeal in Docket No. 82829 because the district court did not enter an order
denying a motion to compel arbitration, as the court only specifically denied
the motion to strike the jury demand. We disagree. By concluding that
Hakkasan's claims fall outside of the scope of the T&Cs, which includes the
arbitration clause, and by denying the motion outright, the district court
necessarily denied Willis's request to compel arbitration. Thus, we have
jurisdiction over the appeal. See NRS 38.247(1) (permitting appeals from
orders denying motions to compel arbitration). Nevertheless, as we
concluded above, the district court properly concluded that the T&Cs did
not govern Hakkasan's underlying claims, and thus, we affirm the denial of
the motion to compel arbitration. Accordingly, we
ORDER the petition DENIED in Docket No. 82833 and the
judgment of the district court AFFIRMED in Docket No. 82829.
CLA.A , C.J.
Parraguirre
J. , J.
Hardesty Stiglich
, J. J.
Cadish Silver
l'elk_vtAAA/) , J.
Pickering Herndon
directing the matter to mediation, did not preclude the district court from
SUPREME COURT later concluding that the T&C's do not govern the underlying matter.
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cc: Chief Judge, Eighth Judicial District Court
Hon. Ellie Roohani, District Judge
Saul Ewing Arnstein & Lehr, LLP
Brownstein Hyatt Farber Schreck, LLP/Las Vegas
Quinn Emanuel Urquhart & Sullivan, LLP
Santoro Whitmire
Carlton Fields, P.A.
Clyde & Co. US LLP
Eighth District Court Clerk
SUPREME COURT
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