Allan v. Progressive Northern Insurance Company

• Court: District Court, D. Nevada
• Decided: September 9, 2025
• Docket: 2:22-cv-01424
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 SCOTT ALLAN, 4 Plaintiff, Case No.: 2:22-cv-01424-GMN-EJY 5 vs. ORDER GRANTING IN PART 6 MOTION FOR PARTIAL SUMMARY PROGRESSIVE NORTHERN INSURANCE 7 COMPANY, JUDGMENT

8 Defendant. 9 10 Pending before the Court is the Motion for Partial Summary Judgment (“MSJ”), (ECF 11 No. 62), filed by Defendant Progressive Northern Insurance Company. Plaintiff Scott Allan 12 filed a Response, (ECF No. 74), to which Progressive filed a Reply, (ECF No. 79). For the 13 reasons discussed below, the Court GRANTS, in part, and DENIES, in part, Progressive’s 14 Motion for Partial Summary Judgment. 15 I. BACKGROUND 16 This case arises out of Plaintiff Scott Allan’s claims to Defendant Progressive after two 17 car accidents. (See generally Compl., ECF No. 1-1). At the time of the accidents, Allan had an 18 insurance policy with Progressive that included coverage for Uninsured/Underinsured 19 Motorists (“UIM”) with limits of $250,000 per person and $500,000 per accident. (Declarations 20 Page, Ex. C to MSJ, ECF No. 62-3). Allan made a $250,000 UIM demand for each accident. 21 A. October 11 Accident 22 The first accident occurred on October 11, 2020. (Oct. Police Report at 1, Ex. A to MSJ, 23 ECF No. 62-1). Allan told the officer that a driver crossed into his lane and hit the side of his 24 car. (Id. at 2). The other driver told the officer that Allan had crossed into her lane, so the 25 officer found neither driver to be at fault due to their differing version of events. (Id.). The 1 officer reported that Allan’s vehicle sustained minor damage on its left side. (Id.). The other 2 vehicle had no visible damage. (Id.). Allan reported the claim to Progressive the same day. 3 (Claims Notes, Ex. D to MSJ, ECF No. 62-4). In a recorded phone call the next day, he stated 4 that he was fine and was concerned about getting his vehicle repaired. (Progressive Phone Call 5 at 20:00–21:45, Ex. F to MSJ, ECF No. 62-6). 6 Eight days after the accident, Allan went to Dr. Michael Fishell of Advanced Pain Care 7 complaining of face and neck pain, headaches, and tingling down his right arm. (Advanced 8 Pain Care Notes at DEF000997–98, Ex. G to MSJ, ECF No. 62-7). Allan stated that at the time 9 of the collision, his head and torso turned to the left, but the airbags did not deploy. (Id.). He 10 began to feel pain within two to three days after the accident. (Id.). The doctor noted Allan’s 11 previous medical history, including that he was involved in a 1998 car accident requiring 12 surgical correction and had a physical lifestyle that caused knee pain. (Id.). But the doctor 13 found that these injuries had no association with the current motor vehicle collision. (Id.). 14 Allan reported that his pain ranged between a four and nine on a scale out of ten, and Allan 15 treated the pain with ice and heat while limiting activities of daily living. (Id.).

16 The following month, Allan went to Dr. Ramon Soto of Complete Care Injury Center, 17 complaining of pain to his neck, back, right arm, and right shoulder. (Soto Medical Records, 18 Ex. A to Reply, ECF No. 79-1). The doctor noted that Allan had moderate injuries and that in 19 his professional opinion, the injuries were the result of the motor vehicle collision. (Id.). 20 B. December 11 Accident 21 The second accident was a rear-end collision that occurred on December 11, 2020. (Dec. 22 Police Report at 1, Ex. C to MSJ, ECF No. 62-3). Allan stopped his vehicle due to traffic 23 ahead when the driver behind him hit his vehicle. (Id. at 2). The police report noted damage to 24 the rear of the vehicle. (Id. at 5). Allan reported headaches, as well as pain in his neck, right 25 arm, and the right side of his face. (Spinal Rehabilitation Center Notes at DEF001080, Ex. B to 1 Reply, ECF No. 79-2). Allan also described residual pain from the first accident. (Id.). The 2 airbags did not deploy, but Allan states that “his body was whipped forward/backward at the 3 moment of impact” and that he was disorientated after the impact. (Id. at DEF001079). Allan 4 was not taken to the hospital by ambulance but self-transported for medical care five days after 5 the accident. (Id.). The doctor noted that Allan’s “pain and dysfunction” was “directly related” 6 to the car accident. (Id. at DEF001081). 7 On December 16, 2020, Progressive received a letter of representation from Eric Roy, 8 Esq. (Correspondence at DEF00819–20, Ex. C to Reply, ECF No. 79-3). Two days later, 9 Progressive replied with a list of the information it needed to process the claim. (Id. at 10 DEF000821–22). A similar letter, or a letter requesting updates from the attorney, was sent on 11 January 5, 2021, February 1, 2021, February 25, 2021, March 2, 2021, April 9, 2021, May 10, 12 2021, June 9, 2021, July 8, 2021, August 12, 2021, August 15, 2021, and September 13, 2021. 13 (Id. at DEF000830–50). Eric Roy Law Firm replied with a fax on September 13, 2021, 14 attaching three medical bills and requests for payment. (Id. at DEF000851). Progressive 15 reviewed the invoices and issued medical payment checks for $3,320 and $1,680, with an

16 explanation of its methods used to calculate the amount paid and instructions to appeal. 17 (Plaintiff’s Second Suppl. Rule 26(a) Disclosures at PLTF01234–48, Ex. G to Reply). 18 Progressive asserts that by October 2021, it paid $5,000 in medical expenses for each accident, 19 which is the full amount of medical pay available under the policy. (MSJ 5:7–10). 20 Ultimately, after conducting Allan’s deposition, Progressive extended an offer to resolve 21 the first UIM claim for $16,000 and the second claim for $13,650. (Progressive Offer at 22 DEF001641, Ex. L to MSJ, ECF No. 62-12). The offer letter noted that Allan’s medical 23 records indicated a history of back complaints that pre-date the accidents, and that diagnostics 24 showed degenerative issues such as osteophytes. (Id.). It further noted that the accidents were 25 minor, and that of the $128,253.00 in medical specials that Allan submitted, $44,570.00 were 1 considered “reasonable, customary, and related to treatment.” (Id.). Allan did not accept the 2 offer and brought the claims at issue in this case: breach of contract, breach of the implied 3 covenant of good faith and fair dealing, unfair claims practices and punitive damages. (Compl. 4 ¶¶ 24–45, ECF No. 1-1). 5 Progressive now moves for summary judgment. Progressive’s motion was titled “Partial 6 Motion for Summary Judgment,” but after the Court noted that the motion was unclear as to 7 whether Progressive was moving for summary judgment on all claims, Progressive filed a 8 notice clarifying that it is seeking summary judgment on all four claims. (See generally Notice, 9 ECF No. 81). Allan filed a Response to the Notice, arguing that the Court should not consider 10 the breach of contract claim as part of the Motion for Partial Summary Judgment, and that even 11 if it does, genuine issues of material fact exist. (See generally Resp. to Notice, ECF No. 84). 12 Because Progressive has the initial burden on summary judgment, the Court will construe the 13 Partial Motion for Summary Judgment as moving for summary judgment on all four claims. 14 II. LEGAL STANDARD 15 The Federal Rules of Civil Procedure provide for summary adjudication when the

16 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 17 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 18 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that 19 may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 20 (1986). A dispute as to a material fact is genuine if there is a sufficient evidentiary basis on 21 which a reasonable fact-finder could rely to find for the nonmoving party. See id. “The amount 22 of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or 23 judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 24 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 25 288–89 (1968)). “Summary judgment is inappropriate if reasonable jurors, drawing all 1 inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s 2 favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008). A principal 3 purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” 4 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 5 In determining summary judgment, a court applies a burden-shifting analysis. “When 6 the party moving for summary judgment would bear the burden of proof at trial, it must come 7 forward with evidence which would entitle it to a directed verdict if the evidence went 8 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 9 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 10 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (quotation marks and 11 citation omitted). In contrast, when the nonmoving party bears the burden of proving the claim 12 or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to 13 negate an essential element of the nonmoving party’s case; or (2) by demonstrating that the 14 nonmoving party failed to make a showing sufficient to establish an element essential to that 15 party’s case on which that party will bear the burden of proof at trial. See Celotex Corp., 477

16 U.S. at 323–24. If the moving party fails to meet its initial burden, summary judgment must be 17 denied, and the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. 18 Kress & Co., 398 U.S. 144, 159–60 (1970). 19 If the moving party satisfies its initial burden, the burden then shifts to the opposing 20 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. 21 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 22 the opposing party need not establish a material issue of fact conclusively in its favor. It is 23 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 24 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 25 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). However, the nonmoving party “may not rely on 1 denials in the pleadings but must produce specific evidence, through affidavits or admissible 2 discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 3 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical 4 doubt as to the material facts,” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002). “The 5 mere existence of a scintilla of evidence in support of the plaintiff’s position will be 6 insufficient.” Anderson, 477 U.S. at 252. In other words, the nonmoving party cannot avoid 7 summary judgment by “relying solely on conclusory allegations unsupported by factual data.” 8 See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go 9 beyond the assertions and allegations of the pleadings and set forth specific facts by producing 10 competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324. 11 At summary judgment, a court’s function is not to weigh the evidence and determine the 12 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. 13 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 14 in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is 15 not significantly probative, summary judgment may be granted. See id. at 249–50.

16 III. DISCUSSION 17 Progressive moves for summary judgment on Allan’s claims for breach of contract, 18 breach of the covenant of good faith and fair dealing, violations of Nevada’s Unfair Insurance 19 Claims Practices Act, and punitive damages. In response, Allan objects to the majority of the 20 evidence attached to Progressive’s motion, so the Court begins by addressing his evidentiary 21 objections. 22 A. Objections 23 Throughout his Response, Allan objects to evidence produced by Progressive, or 24 arguments made by Progressive, as not relevant. Rule 401 of the Federal Rules of Evidence 25 (“FRE”) defines relevant evidence as evidence with “any tendency to make a fact more or less 1 probable than it would be without the evidence” if “the fact is of consequence in determining 2 the action.” Allan’s objections range from conversations he had with Progressive after his 3 accidents, statements regarding injuries obtained or medical treatment received prior to the 4 accidents, and Progressive’s offers of payment. (See generally Resp.). The Court finds that all 5 evidence included by Progressive is relevant as to whether it acted in bad faith or failed to 6 handle Allan’s claim in a reasonable manner. Allan’s relevancy objections are thus 7 OVERRULED. 8 Allan also makes specific objections to Exhibits A, B, C, D, E, F, G, H, L, and M. (See 9 generally id.). The Court reviews these objections in turn below. 10 1. Exhibits A and B: Police Report 11 Progressive relies on the police reports to explain what happened in each accident. (MSJ 12 1:19–2:1). In the first incident, Allan told the officer that the right tire of another vehicle made 13 contact with the left side of his vehicle. (Oct. Police Report at 2, Ex. A to MSJ). The other 14 driver continued driving and Allan followed her until she stopped at her place of work. (Id.). 15 She told the officer that she did not stop because she looked in the rear-view mirror and did not

16 see any damage to Allan’s vehicle. (Id.). The officer reported that he saw no damage to the 17 vehicle due to the contact being made with the tire. (Id.). In the second incident, the officer 18 reported that Allan stopped for traffic, and the vehicle behind him impacted his vehicle. (Dec. 19 Police Report at 2, Ex. C to MSJ). Allan objects to the use of the police reports and argues that 20 they contain inadmissible hearsay. (Resp. 4:11–17). 21 The Federal Rules of Evidence contain a hearsay exception for public records, which 22 states that the rule against hearsay does not exclude a “record or statement of a public office” 23 that “sets out . . . a matter observed while under a legal duty to report, but not including, in a 24 criminal case, a matter observed by law-enforcement personnel.” Fed. R. Evid. 803(8)(A)(ii). 25 Thus, under the public-records exception, “entries in a police report which result from the 1 officer’s own observations and knowledge may be admitted” in a civil case. United States v. 2 Morales, 720 F.3d 1194, 1202 (9th Cir. 2013). However, “any statements from third parties 3 that are recounted in a police report involve an additional layer of hearsay that must be 4 separately justified by another exception to the hearsay rule.” Jensen v. EXC, Inc., 82 F.4th 5 835, 846 (9th Cir. 2023) 6 Allan fails to specify which statement constitutes inadmissible hearsay in the report, but 7 the officer’s statements are proper evidence to be considered under FRE 803(8)(A)(ii) and his 8 own statements are admissible as an opposing party’s statements under FRE 801(d)(2). But the 9 third-party driver’s statement in the first accident, that she did not see any damage, is not 10 admissible as a present sense impression, as argued by Progressive. (Reply 5:25–6:1). Her 11 statement was made to the officer after the accident and after she drove to her place of work, 12 and thus was not “nearly contemporaneous” with the accident itself. See Bemis v. Edwards, 45 13 F.3d 1369, 1373 (9th Cir. 1995) (“A present sense impression must be “nearly 14 contemporaneous with the incident described and made with little chance for reflection.”). 15 Thus, the Court OVERRULES Allan’s objection as to statements made by the officer or

16 himself, but SUSTAINS the objection as to statements made by the third-party driver to the 17 extent they are relied on for the truth of the matter asserted. 18 2. Exhibit C: Insurance Policy Declaration Sheet 19 Progressive attaches its Insurance Declaration Page for Allan as Exhibit C. It relies on 20 the exhibit as evidence that Allan’s policy included coverage for UIM with limits of $250,000 21 per person and $500,000 per accident. (MSJ 2:6–9). Allan argues that the document has not 22 been authenticated and contains inadmissible hearsay, but also states that he does not dispute 23 the coverage amount. (Resp. 4:18–21). Because Allan does not dispute the amount, which is 24 the very information Progressive is relying on the Insurance Declaration Page to prove, Allan’s 25 objection is OVERRULED. 1 3. Exhibit D: Claim Notes 2 Progressive cites its Notes on Allan’s claim for the sole purpose of stating that he 3 reported the first claim on October 11, 2020. (MSJ 2:16–18). Allan argues that the exhibit has 4 not been authenticated and contains inadmissible hearsay from multiple persons but fails to 5 provide any further explanation. (Resp. 4:22–25). He does not dispute Progressive’s assertion 6 of the date on which he reported his first claim. Because the purpose and basis of Allan’s 7 objection is not readily apparent, his objection is OVERRULED. 8 4. Exhibit E: Photographs of Allan’s Vehicle1 9 Allan also objects to the consideration of vehicle photos because they have not been 10 authenticated and “Progressive has not explained when, where, or by whom the photographs 11 were taken.” (Resp. 5:1–3). In its Reply, Progressive states that the first seven photographs 12 were taken after the second accident by Allan himself, which he sent to Progressive. (Reply 13 7:9–17). The photos produced by Allan himself are deemed authentic because they were 14 produced by a party opponent. See Fed. Trade Comm’n v. AMG Servs., Inc., 558 F. Supp. 3d 15 946, 958 (D. Nev. 2021). According to Progressive, the other photographs were taken at

16 Gerber Collision & Glass during an inspection to provide Allan with an estimate of his vehicle 17 damage. (Reply 7:9–17). But Progressive does not attempt to explain how the remaining 18 photos were authenticated, if at all, and thus the objection is OVERRULED as to the first seven 19 photos and SUSTAINED as to the remaining photos. 20 5. Exhibit F: Allan’s Recorded Statement 21 Allan further objects that the recorded call filed manually as Exhibit F was not 22 authenticated. (Resp. 5:4–7). Progressive replies that the recording was originally produced by 23

24 1 Progressive notes a typographical error in the slip sheet attached to its MSJ that identifies the photographs as 25 Exhibit F, but it intended the photographs to be labeled as Exhibit E. (Reply 2:17–21). The recording of Plaintiff’s conversation with Progressive is Exhibit F. (Id.). For clarity, the Court will refer to the photograph exhibit as Exhibit E. 1 Allan himself as part of his initial Federal Rules of Civil Procedure Rule 26(a) disclosure. 2 (Reply 7:21–22); (Allan’s FRCP Disclosures, Ex. E to Reply, ECF No. 79-5). As noted above, 3 because Allan produced the recording, it is deemed authentic and his objection is 4 OVERRULED. 5 6. Exhibits G and H: Dr. Fishell’s Medical Records and Explanation of Benefits 6 Allan also argues that Dr. Fishell’s Medical Records and the Explanation of Benefits 7 have not been authenticated. (Resp. 5:8–16). Allan produced the medical records as part of his 8 post-accident demand, and he produced the Explanation of Benefits in his Second 9 Supplemental FRCP 26(a) disclosures. (Reply 8:5–19); (Demand Letter, Ex. F to Reply, ECF 10 No. 79-6); (Second Suppl. Initial Disclosures, Ex. G to Reply). The Court thus OVERRULES 11 this objection. 12 7. Exhibit L: Claim Information 13 Allan’s objection to the consideration of a Claim Information document is one sentence 14 and states that the document “has not been authenticated and contains inadmissible hearsay.” 15 (Resp. 5:23–24). He has thus failed to explain his objection and it is not readily apparent. The 16 objection is OVERRULED. 17 8. Exhibit M: Expert Report by Terry McNeil 18 Lastly, Allan objects to the consideration of Progressive’s Expert Report by Terry 19 McNeil. (Resp. 6:1–115). He argues that because the report is unsworn, it is inadmissible. 20 (Id.). Allan is correct. Unsworn expert reports are inadmissible at summary judgment, and 21 courts in the Ninth Circuit have routinely held as much. See FNBN-RESCON I LLC v. Ritter, 22 No. 2:11-CV-1867-JAD-VCF, 2014 WL 979930, at *5 (D. Nev. Mar. 12, 2014) (collecting 23 cases); see also Shuffle Master, Inc. v. MP Games LLC, 553 F. Supp. 2d 1202, 1210 (D. Nev. 24 2008) (“It clearly follows, and is well established, that an unsworn expert report is 25 inadmissible.”). The objection to the unsworn report is SUSTAINED. 1 B. Breach of Contract 2 The Court now turns to address the merits of Allan’s claims alleged against Progressive. 3 Although Allan’s Complaint is unclear, it appears that his breach of contract claim is premised 4 on the dispute as to the value of his UIM claim and Progressive’s reasonableness in offering 5 $16,000 and $13,650.00 for the two accidents. (Resp. to Notice 5:1–14) (stating that a genuine 6 issue of material fact exists as to the “value of the UIM claim – that is, the breach of contract 7 claim”). To prevail on a breach of contract claim under Nevada law, the plaintiff must show 8 (1) the existence of a valid contract, (2) a breach by the defendant, and (3) damage as a result of 9 the breach. Richardson v. Jones, 1 Nev. 405 (1865). 10 Progressive argues that Allan cannot raise a genuine issue of material fact for his breach 11 of contract claim because he has not produced any evidence that it breached the contract by 12 refusing to pay him the limits of his UIM policy for each accident. (MSJ 14:15–117). Although 13 the policy itself is not attached, the Complaint cites page 10 of the policy stating that UIM 14 applies when the insured “is legally entitled to recover from the owner or operator of an 15 uninsured motor vehicle or an underinsured motor vehicle because of bodily injury: 1.

16 sustained by an insured person; 2. caused by an accident; and 3. arising out of the ownership, 17 maintenance or use of an uninsured motor vehicle or an underinsured motor vehicle.” (Compl. 18 at 11). Progressive does not dispute that this is the true definition. Progressive did not attach a 19 copy of the policy, nor provide further explanation as to why Allan was not legally entitled to a 20 higher dollar amount. It failed to explain how it did not breach by extending UIM offers of 21 only $16,000.00 and $13,650.00, per the definition provided in the policy. 22 The parties agree that there is a dispute as to the value of Allan’s claims. (See Reply 23 13:5–10). This is a genuine issue for trial. Because Progressive provides no explanation 24 pertaining to the actual terms of the contract, it has not met its initial burden and summary 25 judgment is DENIED. 1 C. Breach of the Implied Covenant of Good Faith and Fair Dealing 2 Plaintiff also brings a claim for breach of the implied covenant of good faith and fair 3 dealing, but his Complaint lacks any explanation as to what actions taken by Progressive 4 allegedly violated the covenant. It is also unclear whether Allan is alleging a contractual or 5 tortious breach. Based on his Response brief, however, it appears that he is alleging 6 Progressive breached the covenant by delaying his payment and offering only $16,000.00 and 7 $13,650.00 for his accidents. (See Resp. 18:20–20:23). And because he primarily cites the 8 legal standards for a tortious breach, involving a special relationship between an insurer and 9 insured, the Court will construe his claim as one for tortious breach. See Hilton Hotels Corp. v. 10 Butch Lewis Prods., Inc., 808 P.2d 919, 923 (Nev. 1991) (“[T]he difference between a tort 11 action and contract action in good faith covenant cases [is] that the tort action requires a special 12 element of reliance or fiduciary duty[.]”). 13 Under Nevada law, an insurer breaches the duty of good faith when it refuses “without 14 proper cause to compensate its insured for a loss covered by the policy.” U.S. Fid. & Guar. Co. 15 v. Peterson, 540 P.2d 1070, 1071 (Nev. 1975). An insurer is without proper cause to deny a

16 claim when it has an “actual or implied awareness” that no reasonable basis exists to deny the 17 claim. Am. Excess Ins. Co. v. MGM Grand Hotels, Inc., 729 P.2d 1352, 1354 (Nev. 1986). An 18 unreasonable delay in payment can also constitute bad faith. Guar. Nat. Ins. Co. v. Potter, 912 19 P.2d 267, 272 (Nev. 1996). “Generally, ‘a bad-faith claim is subject to summary judgment if 20 the defendant demonstrates that there was a genuine dispute as to coverage, because if the 21 insurer had a reasonable basis to deny coverage,’ the insurer is unlikely to know it was acting 22 unreasonably.” Fernandez v. State Farm Mut. Auto. Ins. Co., 338 F. Supp. 3d 1193, 1200 (D. 23 Nev. 2018) (quoting Amini v. CSAA Gen. Ins. Co., 2016 WL 6573949, at *4 (D. Nev. Nov. 4, 24 2016)). “It is not enough to show that, in hindsight, an insurer acted unreasonably; the plaintiff 25 1 must show that the insurer knew or recklessly disregarded that it was acting unreasonably.” 2 Igartua v. Mid-Century Ins. Co., 262 F. Supp. 3d 1050, 1053 (D. Nev. 2017). 3 Here, Allan has not produced any evidence to demonstrate that Progressive 4 unreasonably delayed payment. And on the contrary, Progressive produced evidence that it 5 repeatedly sent almost identical letters to Allan’s lawyer on seven different occasions 6 requesting the information needed to investigate the claim. (Correspondence at DEF00830–50, 7 Ex. C to Reply, ECF No. 79-3). Allan does not argue that his lawyer did in fact respond or 8 provide the documentation requested, nor does he explain the lack of cooperation. Progressive 9 sent letters for nine months until Mr. Roy finally sent medical records and a request for 10 payment in September of 2021. The following month, Progressive paid the full amount of 11 medical pay available. After that, because the medical records indicated a previous history of 12 injuries, Progressive requested an examination under oath that occurred in February of 2022. 13 Progressive continued its investigation after the examination and extended offers to resolve the 14 UIM claims on August 2, 2022. The Court thus GRANTS summary judgment to Progressive 15 on the claim to the extent it is premised on unreasonable delay.

16 The Court does, however, find a genuine issue of material fact as to whether Progressive 17 knew or recklessly disregarded the unreasonableness of its $16,000 and $13,650 offers. 18 Progressive argues that it conducted a “fair, prompt, and thorough investigation of Plaintiff’s 19 claims,” which culminated in reasonable offers for $16,000 offered for the first accident and 20 $13,650 offered for the second. (MSJ 15:14–19); (Progressive Offer at DEF001641, Ex. L to 21 MSJ). The offer letter noted that Allan’s medical records indicated a history of back pain 22 complaints that pre-dated the accidents and that diagnostics showed degenerative issues such as 23 osteophytes. (Id.). Progressive also noted that the accidents were minor, and that of the 24 $128,253.00 in medical specials that Allan submitted, $44,570.00 were considered “reasonable, 25 customary, and related to treatment.” (Id.). 1 As Allan points out, however, three doctors noted that his injuries were related to the car 2 accidents and not prior injuries. Dr. Michael Fishell of Advanced Pain Care found that Allan 3 was involved in a motor vehicle accident in that required surgical correction, and that he had an 4 aggressive physical lifestyle causing pain to his knees, but that these injuries had no association 5 with the motor vehicle collision. (Advanced Pain Care Notes at DEF000997–98, Ex. G to 6 MSJ). At his MRI in November, Dr. Ramon Soto of Complete Care Injury Center opined that 7 Allan’s injuries were moderate and stated that in his professional opinion, the injuries were the 8 result of the motor vehicle collision. (Id.). And the doctor at the Spinal Rehabilitation Center 9 further found that Allan’s injuries were directly related to the accident. (Spinal Rehabilitation 10 Center Notes at DEF001081, Ex. B to Reply). Further, Progressive offered to settle the claims 11 for less than the $44,570.00 that it considered “reasonable, customary, and related to 12 treatment,” without explanation in its Motion. $44,570.000 is also significantly less than the 13 $220.604.64 claimed by Allan for medical treatment and the $862,365.00 claimed for future 14 medical treatment. (Plaintiff’s Ninth Suppl. FRCP 26(a) Disclosures at 31–32, Ex. 2 to Resp., 15 ECF No. 74-2).

16 “[A] jury question on insurer’s bad faith arises when relevant facts are in dispute or 17 when facts permit differing inferences as to the reasonableness of insurer’s conduct.” United 18 Fire Ins. Co. v. McClelland, 780 P.2d 193, 197 (Nev. 1989). Based on the evidence provided 19 by the parties, the Court cannot say that, as a matter of law, no reasonable juror could find that 20 Progressive had an awareness, actual or implied, that it lacked reasonable basis supporting its 21 offer amounts. Accordingly, Progressive’s Motion for Summary Judgment is DENIED as to 22 Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing. 23 D. Unfair Claims Practices Act 24 Allan alleges that Progressive violated three subsections of NRS 686A.310, which 25 prohibit unfair practices in an insurer’s claims-settlement process. Although his Complaint 1 does not specify which sections Progressive allegedly violated, his Response argues that 2 sections e, f, and g, are most applicable. (Resp. 21:14–22). Sections (e)–(g) prohibit the unfair 3 practices of: 4 (e) Failing to effectuate prompt, fair and equitable settlements of claims in which liability of the insurer has become reasonably clear. 5 (f) Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts 6 ultimately recovered in actions brought by such insureds, when the insureds have 7 made claims for amounts reasonably similar to the amounts ultimately recovered. (g) Attempting to settle a claim by an insured for less than the amount to 8 which a reasonable person would have believed he or she was entitled by reference to written or printed advertising material accompanying or made part of 9 an application.

10 NRS 686A.310(1)(e)–(g). 11 12 Neither Allan’s Complaint nor Response make any reference to advertising material, and 13 Progressive also makes no mention of NRS § 686A.310(g), so the Court GRANTS summary 14 judgment on that claim. But due to the genuine issue of material fact as to the reasonableness 15 of Progressive’s offer, the Court DENIES summary judgment on Allan’s claims for violations 16 of NRS 686A.310(e)–(f). 17 E. Punitive Damages 18 Lastly, Progressive moves for summary judgment on Allan’s ability to recover punitive 19 damages. “Nevada follows the rule that proof of bad faith, by itself, does not establish liability 20 for punitive damages.” McClelland, 780 P.2d at 198 (Nev. 1989). Instead, a plaintiff must 21 prove “by clear and convincing evidence that the defendant is ‘guilty of oppression, fraud or 22 malice, express or implied.’” Bongiovi v. Sullivan, 138 P.3d 433, 450–51 (Nev. 2006) (quoting 23 NRS 42.005(1)). Plaintiff does not present evidence that Progressive’s conduct rose to the high 24 level required for punitive damages. Progressive reviewed photos, medical records, and 25 conducted an interview of Plaintiff. And when Progressive asked Allan about how he believed 1 || he had been treated unfairly, his response was that the adjusters made it difficult to get his 2 || vehicle fixed, did not handle his claim in a professional manner, and made a very low payment 3 || offer when compared to the amount of his medical bills. (Allan Dep. 93:2—28, 103:11-18, 4 || 107:14—-108:10, Ex. Ito MSJ, ECF No. 62-9). These actions do not rise to the level required 5 || for punitive damages. See Powers v. United Servs. Auto. Ass’n, 962 P.2d 596, 604 (Nev. 1998) 6 || (finding punitive damages warranted when evidence existed that the insurance company made 7 || critical omissions in its investigative process and altered video evidence to support its decision g || for denial). Thus, Progressive’s Motion to Summary Judgment is GRANTED as to this claim. 9 || IV. CONCLUSION 10 IT IS HEREBY ORDERED that Progressive’s Motion for Partial Summary Judgment, 11 || (ECF No. 62), is GRANTED, in part, and DENIED, in part. Allan’s claims for breach of 12 || contract, breach of the implied covenant of fair dealing, and violations of NRS 686A.310(e)— 13 || (f), will proceed to trial. 14 IT IS FURTHER ORDERED that the parties will have thirty days from the date of this 15 || Order to file a jointly proposed pretrial order pursuant to LR 16-3(b) using the form provided in 16 || LR 16-4. 17 DATED this 9 day of September, 2025. 18 Yj, 19 50 Gloria M. Net TO, District Judge UNITED STAZES DISTRICT COURT 21 22 23 24 25

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