Mullaney v. The Travelers Indemnity Company

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Alison Mullaney, Case No.: 2:23-cv-01530-JAD-BNW 4 Plaintiff 5 Order Granting in Part and Denying in v. Part Defendant’s Motion for Summary 6 Judgment and Referring Case for The Travelers Indemnity Mandatory Settlement Conference 7 Company, et al., [ECF No. 44] 8 Defendants 9 10 Alison Mullaney got into a car accident with a driver whose insurance policy was 11 insufficient to cover her claimed damages. The Travelers Indemnity Company offered to cover 12 much of her remaining medical expenses under Mullaney’s own underinsured-motorist policy, 13 but it decided against covering a lifetime of annual rhizotomies—the trimming of nerves to 14 manage pain—based on consultations with its nurse. After learning that Travelers’ claim- 15 settlement offer would not include these future procedures, Mullaney sent Travelers a series of 16 detailed questions asking how it decided coverage. Because Travelers’ answers didn’t satisfy 17 Mullaney and it still refused to cover the procedures, Mullaney brings this suit for breach of 18 contract, bad faith, violations of Nevada’s unfair-claims-practices statute, declaratory relief, and 19 punitive damages alleging a “calculated strategy” to stonewall her on coverage.1 20 Travelers now moves for summary judgment. It argues that doctors decide the need for 21 more rhizotomies on a procedure-by-procedure basis, so Mullaney’s allegation that she needs 22 them for life is speculative, and no medical literature supports giving rhizotomies for that 23 1 ECF No. 48 at 13. 1 duration. Travelers also defends its investigation against Mullaney’s allegations of bad faith, 2 contending that it adequately reviewed Mullaney’s medical records and that it responded to her 3 with the level of detail required by Nevada law. Mullaney offers sufficient expert testimony and 4 other evidence showing genuine disputes of material fact precluding summary judgment on any 5 of her claims. Because the record fails to support punitive damages however, I strike that prayer. 6 Background 7 Mullaney amassed approximately $81,000 in medical bills immediately after an 8 automobile collision in 2022.2 Since the accident, she has continued to receive medical 9 treatment including rhizotomies, which use radio waves to trim pain-causing nerves.3 Her pain 10 specialist has recommended annual rhizotomies for the rest of her life,4 which Travelers 11 estimates would cost around half a million dollars.5 12 Mullaney recovered $50,000 from the tortfeasor driver and his insurer which tendered its 13 policy limit.6 She also maintained her own insurance policy with Standard Fire Insurance 14 Company, a subsidiary of Travelers, at the time of the accident.7 That policy had a provision 15 that promised to pay underinsured-motorist (UIM) benefits up to $500,000 to Mullaney if she 16 can show she was legally entitled to recover compensatory damages from an underinsured 17 motorist.8 18 19 2 ECF No. 49 at 21 (15:9–22); id. at 129, 204. She has continued to receive treatment and claims her medical bills now exceed $180,000. ECF No. 48 at 18. 20 3 ECF No. 54 at 13–14. 21 4 Id. at 14. 5 ECF No. 44 at 5. 22 6 ECF No. 49 at 128–29. 23 7 ECF No. 50 at 216. 8 Id. at 216, 234. 1 Because Mullaney’s claimed medical damages exceeded the policy limits of the 2 underinsured driver’s policy, she submitted a UIM claim to Travelers,9 which reviewed the claim 3 and offered to settle for $109,545.10 Mullaney submitted several supplemental claims with 4 medical records that she claims support her need for future treatments such as rhizotomies.11 5 Mullaney also sent a letter with many detailed questions demanding that Travelers explain its 6 process for its coverage decision.12 Travelers reviewed the supplemental claims over the next 7 few months and made additional settlement offers that eventually reached $165,000.13 Although 8 Travelers communicated with Mullaney during this time, it did not answer Mullaney’s questions 9 about Travelers’ decision-making process to her satisfaction.14 When Mullaney insisted on 10 answers, Travelers responded to Mullaney’s questions—several months after they had been 11 sent—and explained that its “internal medical professional” had determined that future medical 12 treatment was not necessary.15 Travelers refused to reveal the identity of that medical 13 professional claiming work-product privilege.16 14 So Mullaney filed this suit for breach of contract, bad faith, violations of Nevada’s 15 unfair-claims-practices statute, declaratory relief, and punitive damages in state court, and 16 Travelers removed to this court.17 After Mullaney sued, Travelers eventually revealed that it 17 9 ECF No. 51 at 6. 18 10 ECF No. 53 at 13. Travelers also paid Mullaney $5,000 in medical-payment benefits. ECF No. 44 at 8; ECF No. 46-2 at 9. 19 11 ECF No. 46-2 at 11–18. 20 12 ECF No. 53 at 16–17. 21 13 Id. at 95. 14 Id. at 104–06. 22 15 See id. at 101–03. 23 16 Id. at 103. 17 See generally ECF No. 1-1; ECF No. 1. 1 relied on its employee nurse, Mary Liparulo, for its medical determination.18 Liparulo opined 2 that annual rhizotomies were not necessary after reviewing medical literature and opining that 3 “there was no way to determine that [Mullaney] would require [rhizotomies] yearly for her 4 lifetime.” 19 She also thought that a three-month gap in medical treatment raised a potential 5 causation issue.20 6 Discussion 7 A. Summary-judgment standard 8 Summary judgment is appropriate when the pleadings and admissible evidence “show 9 that there is no genuine issue as to any material fact and that the movant is entitled to judgment 10 as a matter of law.”21 “By its very terms, this standard provides that the mere existence of some 11 alleged factual dispute between the parties will not defeat an otherwise properly supported 12 motion for summary judgment; the requirement is that there be no genuine issue of material 13 fact.”22 A fact is material if it could affect the outcome of the case.23 On summary judgment, 14 the court must view all facts and draw all inferences in the light most favorable to the nonmoving 15 party.24 When the moving party does not bear the burden of proof on the dispositive issue at 16 trial, it is not required to produce evidence to negate the opponent’s claim—its burden is merely 17 to point out the evidence showing the absence of a genuine material factual issue.25 18 18 ECF No. 46-2 at 10–11; ECF No. 56 at 209–12. 19 19 ECF No. 46-2 at 10–11. 20 20 Id. 21 21 See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). 22 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). 22 23 Id. at 249. 23 24 Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 25 Celotex, 477 U.S. at 323. 1 B. Whether Travelers must cover Mullaney’s rhizotomies is a question of fact that 2 precludes summary judgment on Mullaney’s breach-of-contract claim. 3 Travelers moves for summary judgment on Mullaney’s breach-of-contract claim.26 A 4 breach-of-contract claim in Nevada requires a valid contract, its breach, and damages resulting 5 from the breach.27 Both parties agree that Travelers and Mullaney had a contract: a UIM policy 6 that promised to “pay compensatory damages” that could have been recovered from the under- 7 insured motorist for “bodily injury sustained by an ‘insured’ and caused by an accident.”28 They 8 disagree over whether the policy covers a lifetime of rhizotomies. 9 Travelers contends that Mullaney’s rhizotomies are not covered because such procedures 10 are provided on an as-needed basis, and just how long Mullaney will need them is speculative.29 11 Travelers relies on the opinion of its expert, Dr. Adam Carinci, who contends that ongoing 12 rhizotomies are “inconsistent with the standard of care” for treating injuries like Mullaney’s and 13 a rhizotomy is often a “one and done” procedure.30 Travelers also points to the deposition 14 testimony of Mullaney’s expert, Dr. Raimundo Leon, who could not name a source in medical 15 literature that supported ongoing rhizotomies for life.31 Dr. Leon recommends a lifetime of 16 17 18 26 ECF No. 44 at 19. 19 27 Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 899 (9th Cir. 2013) (quoting Saini v. Int’l Game Tech., 434 F. Supp. 2d 913 (D. Nev. 2006)). 20 28 ECF No. 50 at 234 (cleaned up); ECF No. 44 at 19. 21 29 ECF No. 44 at 11, 14, 19. Travelers’ argument on Mullaney’s breach-of-contract claim largely focuses on its position that it timely offered to settle and that it didn’t delay payment of 22 the claim. See id. at 19. But the actual focus of Mullaney’s breach-of-contract claim is whether rhizotomies are covered procedures that Travelers failed to cover. See ECF No. 1-1. 23 30 ECF No. 44 at 14; ECF No. 45 at 5–6. 31 Id. at 13. 1 annual rhizotomies for Mullaney based instead on “his clinical experience” providing 2 rhizotomies32 and his opinion that the affected nerves regenerate after several months.33 3 Travelers focuses much on the speculative nature of ongoing rhizotomies and deposition 4 testimony suggesting a lack of medical literature in support of the procedures. I faced a similar 5 issue in Humes v. Acuity.34 In that case, Donald Humes claimed that he suffered ongoing pain 6 from a car accident.35 He treated the pain with serial rhizotomies and intended to do so for the 7 rest of his life.36 When his UIM insurer refused to cover the ongoing rhizotomies, he sued for 8 breach of contract.37 In that case, I allowed Dr. Leon to testify at trial about Humes’s ongoing 9 need for pain management and the necessity of lifetime rhizotomies to treat the pain.38 And after 10 the jury returned a verdict for Humes, I denied the insurer’s motion for a new trial because Dr. 11 Leon’s testimony about the rhizotomies provided a sufficient basis for the jury’s verdict and the 12 damage award.39 13 Given that Mullaney has the same doctor and his opinion mirrors that from Humes, I find 14 that there is sufficient evidence on which a jury could rule for Mullaney. So, whether ongoing 15 rhizotomies are a benefit covered by Mullaney’s policy remains genuinely disputed. Resolution 16 32 ECF No. 44-4 at 16 (68:5–15). 17 33 ECF No. 54 at 14. 18 34 Humes v. Acuity, 2022 WL 293324, at *1–2 (D. Nev. Feb. 1, 2022). 19 35 Id. at 1. 36 Id. at 1–2. 20 37 Id. at 1. 21 38 Id. 39 Id. at 2; see also Berry v. Auto-Owners Ins. Co., 634 F. App’x 960, 962–64 (5th Cir. 2015) 22 (unpublished) (upholding jury verdict in favor of car-accident plaintiff whose medical expert testified that he would need a lifetime of rhizotomies because the testimony established that he 23 “would need some form of pain management for the rest of his life” and his medical expert “had personally given patients annual rhizotomies for longer than seven years with good results.”). 1 of that dispute will require weighing the experts’ testimony and credibility, which is a job for the 2 jury, not this court.40 So I deny Travelers’ request for summary judgment on Mullaney’s breach- 3 of-contract claim. 4 C. Questions of fact about the quality of Travelers’ medical investigation and 5 communications preclude summary judgment on Mullaney’s bad-faith claim. 6 Travelers also moves for summary judgment on Mullaney’s claim that it investigated and 7 adjusted her claim in bad faith.41 Mullaney’s bad-faith claim rests on two grounds. First, 8 Mullaney challenges the adequacy of Travelers’ medical investigation.42 Second, she alleges 9 that Travelers was intentionally obtuse in communicating how it determined coverage and 10 delayed the claim.43 11 Under Nevada law, “[e]very contract imposes upon each party a duty of good faith and 12 fair dealing.”44 An insurer breaches its duty of good faith and fair dealing and acts in bad faith if 13 it denies benefits due under the policy without any reasonable basis for the denial.45 But the 14 insurer must have known or recklessly disregarded that it was acting unreasonably.46 15 16 17 40 Wyler Summit P’ship v. Turner Broad. Sys., Inc., 235 F.3d 1184, 1192 (9th Cir. 2000) (“Weighing the credibility of conflicting expert witness testimony is the province of the jury.”). 18 41 ECF No. 44 at 20. 19 42 ECF No. 48 at 17. 43 Id. 20 44 A.C. Shaw Const., Inc. v. Washoe Cnty., 784 P.2d 9, 9 (Nev. 1989) (quoting Restatement 21 (Second) of Contracts § 205). 45 Pemberton v. Farmers Ins. Exch., 858 P.2d 380, 382 (Nev. 1993) (“An insurer fails to act in 22 good faith when it refuses ‘without proper cause’ to compensate the insured for a loss covered by the policy.”). 23 46 Guar. Nat. Ins. Co. v. Potter, 912 P.2d 267, 272 (Nev. 1996); Powers v. United Servs. Auto. Ass’n, 962 P.2d 596, 604 (Nev. 1998). 1 “The key to a bad-faith claim is whether or not the insurer’s denial of coverage was 2 reasonable.”47 Some courts have held that a genuine dispute over whether coverage applies bars 3 a bad-faith claim.48 Thus, under this genuine-dispute doctrine, claims for bad faith should be 4 summarily adjudicated if the defendant demonstrates that there was a genuine dispute as to 5 coverage—such as a factual dispute or a dispute over unsettled areas of insurance law.49 But the 6 reasonableness of an insurer’s conduct should be resolved by a jury when the relevant facts are in 7 dispute or permit differing inferences.50 So “the genuine-dispute doctrine should be applied on a 8 case-by-case basis.”51 9 1. The genuine-dispute doctrine does not apply because whether Travelers adequately reviewed Mullaney’s medical records is subject to multiple 10 interpretations. 11 Both parties attempt to analogize or distinguish this case from Tracey v. American Family 12 Mutual Insurance Co., in which another judge in this district interpreted the genuine-dispute 13 doctrine. In Tracey, Shane Tracey sued his UIM insurer after it refused to cover his back 14 injury.52 The insurer maintained that the back injury was unrelated to the accident.53 The 15 insurer moved for summary judgment asserting that the genuine-dispute doctrine barred any bad- 16 faith claim because the disagreement was a reasonable factual dispute.54 But the court rejected 17 18 47 Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001) (cleaned up). 19 48 See Olson v. Mid-Century Ins. Co., 2025 WL 2554820, at *3 (Nev. Sept. 4, 2025) (unpublished). 20 49 Feldman v. Allstate Ins. Co., 322 F.3d 660, 669 (9th Cir. 2003). 21 50 United Fire Ins. Co. v. McClelland, 780 P.2d 193, 197 (Nev. 1989). 51 Guebara, 237 F.3d at 994 (cleaned up). 22 52 Tracey v. Am. Fam. Mut. Ins. Co., 2010 WL 3613875, at *1 (D. Nev. Sept. 8, 2010). 23 53 Id. 54 Id. at *1–3. 1 that argument because it concluded, relying on the California Supreme Court’s opinion in Wilson 2 v. 21st Century Insurance Co.,55 that a “genuine dispute exists only where the insurer’s position 3 is maintained in good faith and on reasonable grounds.”56 Thus, if the insurer did not reasonably 4 investigate the claim, then the dispute is not genuine.57 Tracey theorized that the insurer was not 5 properly informed about the investigation for several reasons: the insurer did not request an 6 independent medical examination, it relied on a nurse rather than an expert to evaluate the 7 medical records, and it did not provide all the medical records to the nurse.58 Given that those 8 material issues could be interpreted differently, the judge found that a jury could have concluded 9 that the insurer was not adequately informed about the claim and thus unreasonable in 10 investigating and denying the claim.59 So she held that the genuine-dispute doctrine didn’t apply 11 and denied summary judgment.60 12 Mullaney likens her case to Tracey by pointing out that Travelers did not consult a 13 qualified medical expert or a pain-management specialist. Instead, it relied on the opinion of 14 Nurse Liparulo.61 Mullaney contends that Liparulo was unqualified to opine on whether ongoing 15 rhizotomies are necessary and was not provided with records showing that the rhizotomies 16 alleviated Mullaney’s pain.62 Mullaney also notes that Travelers did not ask for an independent 17 medical examination (IME) or an examination under oath that Mullaney believes could have 18 55 Wilson v. 21st Century Ins. Co., 171 P.3d 1082 (Cal. 2007). 19 56 Tracey, 2010 WL 3613875, at *3 (quoting Wilson, 171 P.3d 1082). 20 57 Id. (citing Wilson, 171 P.3d 1082). 21 58 Id. 59 Id. 22 60 Id. at *3, 8. 23 61 ECF No. 46-2 at 10–11. 62 ECF No. 48 at 22–23. 1 resolved any concerns over causation.63 Mullaney bolsters these points with the opinion of her 2 claims-handling expert,64 along with Liparulo’s deposition testimony in which she concedes that 3 she was unqualified to determine whether future rhizotomies are needed.65 Travelers 4 distinguishes Tracey by arguing that Liparulo was not addressing Dr. Leon’s opinion but rather 5 consulting medical literature that states that rhizotomies must be provided on a procedure-by- 6 procedure basis and thus Mullaney’s need for future rhizotomies cannot be determined.66 7 Travelers also argues that an IME or an examination under oath would not have made a 8 difference because whether an additional rhizotomy is needed cannot be known until after the 9 last one.67 10 Although Tracey and Wilson are not binding, I find their holdings and rationale supported 11 by Nevada law. The Nevada Supreme Court has never stated that an inadequate investigation 12 negates the genuine-dispute doctrine. But that is because, as the Nevada Supreme Court noted in 13 a recent unpublished opinion, it “has never explicitly adopted the genuine-dispute doctrine,” 14 even “though federal courts in Nevada have applied it consistently.” 68 Rather, in its view, the 15 genuine-dispute doctrine “is not a separate rule of law,” but a restatement of the “reasonableness 16 requirements for bad faith” that “a plaintiff must show that the insurer acted unreasonably and 17 knew that it acted unreasonably.”69 18 19 63 Id. at 18–19; ECF No. 56 at 218. 20 64 Id. at 205. 21 65 Id. at 134 (26:3–9). 66 ECF No. 44 at 23–24. 22 67 ECF No. 58 at 7. 23 68 Olson, 2025 WL 2554820, at *3 (cleaned up). 69 Id. 1 The rule in Wilson thus aligns with other cases from the Nevada Supreme Court, which 2 have broadly recognized that an insurer can act unreasonably by failing to adequately investigate 3 a claim.70 For example, in Powers v. United Services Automobile Ass’n, a retired Air Force 4 colonel’s boat sank in a dramatic fashion in the Gulf of Mexico.71 When Powers submitted a 5 claim to USAA, it hired an inexperienced salvager and a special investigator who had no 6 experience in marine investigations to look into the boat’s sinking.72 Their conclusions led 7 USAA to believe that Powers had intentionally sunk the boat, eventually leading them to deny 8 the claim and recommend Powers for criminal prosecution—though Powers was later 9 acquitted.73 Powers brought a bad-faith claim in response.74 He supported his claim with 10 investigations-management experts who “testified that USAA’s investigation was improper, 11 incomplete, [and] poorly done,” along with USAA’s special investigator’s own admission that 12 there were errors in his report.75 The jury sided with Powers.76 On appeal, the Nevada Supreme 13 Court affirmed, finding that there was “substantial evidence that had USAA undertaken an 14 objective investigation, USAA would have discovered evidence to show that the claim should 15 have been paid.”77 16 17 18 70 See Powers, 962 P.2d at 604–05; see also Ainsworth v. Combined Ins. Co. of Am., 763 P.2d 673, 675–76 (Nev. 1988). 19 71 Powers, 962 P.2d at 598. 20 72 Id. at 598–99. 21 73 Id. at 598–600. 74 Id. at 600. 22 75 Id. at 604. 23 76 Id. 77 Id. 1 Because the Nevada Supreme Court has recognized that an inadequate investigation and 2 reliance on unqualified experts can constitute bad faith, I find Tracey’s holding and rationale 3 persuasive. Tracey bears a close factual relationship to this case—Mullaney raises questions of 4 fact about whether Liparulo was qualified to review her records, whether the necessary records 5 were provided, and whether there was a need for an independent medical examination or an 6 examination under oath. Mullaney has also provided expert testimony suggesting that the 7 claim’s adjustment was unreasonable and pointed to specific aspects of the investigation that 8 could be interpreted as unreasonable. So, like in Tracey, questions of fact preclude summary 9 judgment on Mullaney’s bad-faith claim as it relates to Travelers’ investigation. 10 2. A jury must decide the reasonableness of Travelers’ communications with 11 Mullaney and adjustment of her claim. 12 Travelers also seeks summary judgment on Mullaney’s secondary theory that the 13 insurer’s deficient communication on the claim also constitutes bad faith. Mullaney alleges that 14 it took twelve requests and a year and a half after the first request to get an adequate response to 15 her questions about how Travelers decided coverage.78 She alleges that some decisions remain 16 unexplained (like Travelers’ decision to apply California billing guidelines) and that she had to 17 litigate to learn who reviewed her medical records.79 Travelers insists that it promptly 18 communicated with Mullaney, it did not need to respond to her counsel’s “multiple and 19 repetitive letters in the manner he dictated,” Mullaney’s own claim-handling expert seemed 20 21 22 23 78 ECF No. 48 at 16–18. 79 Id. 1 doubtful about whether Travelers needed to respond, and Travelers was willing to settle until 2 Mullaney filed suit.80 3 Neither party cites authorities in support of its position on this issue, but the Nevada 4 Supreme Court has recognized that conduct that delays the payment of benefits may constitute 5 bad faith.81 In Guaranty National Insurance Co. v. Potter, Gerald and Valerie Potter were 6 injured in a car accident and sought coverage from their UIM insurer, Guaranty.82 As part of its 7 investigation, Guaranty required that the Potters undergo independent medical examinations 8 (IMEs).83 Guaranty was obligated to pay for the IMEs but did not.84 When the Potters started 9 receiving bills and demand letters from collection agencies, Guaranty assured the Potters in July 10 that it was actively negotiating with the collection agencies for payment—despite not contacting 11 them until October.85 After Guarantee attempted to low-ball the collection agencies, the 12 collection agencies sued the Potters.86 Only at trial did Guaranty finally reach an agreement to 13 pay for the IMEs.87 The Potters successfully sued Guaranty for bad faith, alleging that the 14 insurer unnecessarily delayed payment.88 The Nevada Supreme Court upheld the jury’s award 15 because Guaranty’s failure to pay and confusing communication delayed distribution of the 16 17 18 80 ECF No. 58 at 2–6. 81 Potter, 912 P.2d at 269. 19 82 Id. 20 83 Id. at 269–70. 21 84 Id. 85 Id. at 270–71. 22 86 Id. at 271. 23 87 Id. 88 Id. at 271–72. 1 benefit. 89 It thus breached its “obligation to deal fairly with the Potters in paying for [the] 2 IMEs,” and “its delay in paying for the exams constituted an act of bad faith.”90 3 Viewing Travelers and Mullaney’s exchange in the light most favorable to her could 4 support her theory that Travelers failed to inform Mullaney about the identity of the nurse and 5 failed to explain how it decided coverage. And drawing all reasonable inferences in Mullaney’s 6 favor, not having that information may have materially worsened her position—by preventing 7 resolution of the claim, delaying payment of the claim, and forcing Mullaney to litigate to learn 8 the basis of her rhizotomies denial. Because a bad-faith claim may be based on an insurer’s 9 conduct that delays payment of a benefit under Guaranty, that potential interpretation of their 10 exchange creates a question of fact that precludes summary judgment on this portion of 11 Mullaney’s bad-faith claim. 12 D. The same questions of fact prevent summary judgment on Mullaney’s unfair- 13 claims-practices and declaratory-relief claims. 14 Travelers also moves for summary judgment on Mullaney’s unfair-claims-practices claim 15 under Nevada Revised Statutes (NRS) 686A.310 and Mullaney’s declaratory-relief claim 16 alleging violations of the same statute.91 An unfair-claims-practices claim alleges that an 17 18 89 See id. at 272. 90 Id. at 269, 272. Based on similar reasoning, several district courts have found that inconsistent 19 communication can delay a claim’s payment and constitute bad faith. See, e.g., Zavala v. Geico Cas. Co., 2023 WL 2268143, at *1–4 (D. Nev. Feb. 27, 2023) (finding that a complaint stated a 20 bad-faith claim and an unfair-claims-practices claim when the plaintiff alleged it took a year and a half for the insurer to decide coverage, the insurer only sent its first update letter—after several 21 months—when it learned of the plaintiff’s intention to file a UIM claim, and the plaintiff received multiple inconsistent explanations from her insurer about its decision); see also Hackler 22 v. State Farm Mut. Auto. Ins. Co., 210 F. Supp. 3d 1250, 1256–57 (D. Nev. 2016); Lubritz v. AIG Claims, Inc., 2018 WL 7360623, at *5 (D. Nev. Dec. 18, 2018); Williams v. Travelers Home & 23 Marine Ins. Co., 2023 WL 2430144, at *4 (D. Nev. Jan. 24, 2023). 91 ECF No. 44 at 15, 24. 1 insurer’s conduct fell below several enumerated standards.92 Mullaney contends that discovery 2 shows that Travelers violated NRS 686A.31093 by failing to promptly explain coverage,94 failing 3 to promptly settle the claim,95 using unreasonable standards for the investigation,96 attempting to 4 settle for unreasonable amounts,97 and forcing litigation.98 An unfair-claims-practices claim and 5 a bad-faith claim are distinct but closely related causes of action.99 Although the legal claim is 6 different, the parties rehash the same points they made regarding Mullaney’s bad-faith claim. 7 And the same questions of material fact that preclude summary judgment on the bad-faith claim 8 bar summary judgment on Mullaney’s unfair-claims-practices claim as to these subsections. 9 Mullaney, however, does not contest Travelers’ request for summary judgment on the 10 remaining subsections of NRS 686A.310(1) that she alleged in her complaint. I thus grant 11 summary judgment on the declaratory-relief claim and the unfair-claims-practices claim to the 12 extent they allege violations of any subsections of NRS 686A.310(1) other than (n), (e), (c), (f), 13 and (g). 14 E. The record does not support Mullaney’s prayer for punitive damages. 15 Finally, Travelers moves for summary judgment on Mullaney’s request for punitive 16 damages. “Punitive damages provide a means by which the community . . . can express 17 18 92 See generally Nev. Rev. Stat. § 686A.310. 19 93 ECF No. 48 at 26–28 (“Some provisions, however, are no longer applicable. Thus, [Mullaney] only discusses the provisions that apply here.”). 20 94 Nev. Rev. Stat. § 686A.310(1)(n). 21 95 Nev. Rev. Stat. § 686A.310(1)(e). 96 Nev. Rev. Stat. § 686A.310(1)(c). 22 97 Nev. Rev. Stat. § 686A.310(1)(g). 23 98 Nev. Rev. Stat. § 686A.310(1)(f). 99 See Tracey, 2010 WL 3613875, at *2. 1 community outrage or distaste for the misconduct of an oppressive, fraudulent[,] or malicious 2 defendant and by which others may be deterred and warned that such conduct will not be 3 tolerated.”100 To recover them, a plaintiff must prove “by clear and convincing evidence that the 4 defendant is ‘guilty of oppression, fraud[,] or malice, express or implied.’”101 “Oppression 5 means despicable conduct that subjects a person to cruel and unjust hardship with conscious 6 disregard of the rights of the person.”102 “Fraud means an intentional misrepresentation, 7 deception[,] or concealment of a material fact known to the person with the intent to deprive 8 another person of his rights or property or to otherwise injure another person.”103 “[E]xpress 9 malice is conduct [that] is intended to injure a person; implied malice is despicable conduct 10 which is engaged in with a conscious disregard of the rights . . . of others.”104 11 Travelers contends that Mullaney cannot show by clear and convincing evidence that it 12 was oppressive, fraudulent, or malicious in denying her UIM claim as to the rhizotomies.105 13 Mullaney responds with many of the same arguments that support her bad-faith claim: Travelers 14 didn’t adequately respond to her questions, forced her to litigate, and conducted an inadequate 15 medical investigation.106 She also alleges that denying coverage for pain-management treatment 16 oppressed her.107 But “Nevada follows the rule that proof of bad faith, by itself, does not 17 18 100 Bongiovi v. Sullivan, 138 P.3d 433, 450 (Nev. 2006) (cleaned up). 19 101 Id. at 450–51 (quoting Nev. Rev. Stat. § 42.005(1)) (cleaned up). 102 Nev. Rev. Stat. § 42.001(4) cleaned up). 20 103 Nev. Rev. Stat. § 42.001(2) (cleaned up). 21 104 Clark v. Lubritz, 944 P.2d 861, 867 (Nev. 1997) (quoting Nev. Rev. Stat. § 42.001(3)) (cleaned up). 22 105 ECF No. 44 at 27–30. 23 106 ECF No. 48 at 28–30. 107 Id. 1|| establish liability for punitive damages.” '°* And while such conduct, when viewed in the light most favorable to the plaintiff, could rise above a genuine valuation dispute, it falls short of meeting the high threshold needed for oppression, fraud, or malice. So, I grant summary judgment for Travelers on Mullaney’s request for punitive damages and strike that prayer. 5 Conclusion 6 IT IS THEREFORE ORDERED that Travelers’ motion for summary judgment [ECF No. 7|| 44] is GRANTED in part and DENIED in part. Travelers is entitled to summary judgment on 8]| Mullaney’s declaratory-relief claim and the unfair-claims-practices claim to the extent they allege violations of any subsections of NRS 686A.310(1) other than (n), (e), (c), (f), and (g), and her prayer for punitive damages is struck. But the motion is denied in all other respects. 11 IT IS FURTHER ORDERED that this case is REFERRED to the magistrate judge for 12||a mandatory settlement conference. The parties’ obligation to file a joint pretrial order is STAYED until 10 days after that settlement conference. 14 Ie 15 September 11, 2025 16 17 18 19 20 21 22 23 108 United Fire Ins. Co. v. McClelland, 780 P.2d 193, 198 (Nev. 1989). 17