Minden v. Allstate Property and Casualty Insurance Company

Opinion

1 JONATHAN W. CARLSON, ESQ. Nevada Bar No. 10536 2 jcarlson@mbswc.com MICHAEL A. PINTAR, ESQ. 3 Nevada Bar No. 3789 mpintar@mbswc.com 4 STACY NORRIS, ESQ. Nevada Bar No. 15445 5 snorris@mbswc.com McCORMICK, BARSTOW, SHEPPARD, 6 WAYTE & CARRUTH LLP 8337 West Sunset Road, Suite 350 7 Las Vegas, NV 89113 Telephone: (702) 949-1100 8 Facsimile: (702) 949-1101 Attorneys for Defendant 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 13 MICHAEL MINDEN & THERESA MINDEN, CASE NO. 2:21-cv-151-APG-BNW 14 Plaintiffs, JOINT PRE-TRIAL ORDER 15 v. 16 ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, an Illinois 17 Corporation, 18 Defendants. 19 20 After pretrial proceedings in this case, 21 IT IS SO ORDERED: 22 I. 23 This is an action for breach of contract and bad faith arising out of an insurance policy for 24 homeowners’ coverage. 25 Plaintiffs’ Second Amended Complaint brings forth causes of action against Defendant for 26 breach of contract, tortious breach of the implied covenant of good faith and fair dealing, and 27 contractual breach of the implied covenant of good faith and fair dealing based on damages Plaintiffs 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 filed a Motion for Summary Judgment [ECF 73] on October 31, 2022, which the Court denied in part 4 and granted in part on August 15, 2023 [ECF 98], dismissing only Plaintiffs’ cause of action against 5 Defendant for contractual breach of the implied covenant of good faith and fair dealing. Thus, 6 Plaintiffs’ claims for breach of contract and bad faith remain. 7 Plaintiffs’ operative Complaint seeks relief in the form of general and special damages, 8 punitive damages, reasonable attorney fees and costs of suit, pre-judgment interest, post-judgment 9 interest, and for such other relief as the Court may deem just and proper. 10 Defendant maintains that it has not breached the policy with Plaintiffs in relation to any policy 11 benefits. 12 II. 13 Statement of jurisdiction: This action was originated by the filing of a Complaint in the District 14 Court, Clark County, Nevada on August 31, 2020. Defendant removed the case from State Court to 15 Federal Court [ECF 1] on January 28, 2021, citing diversity between the parties and that this Court has 16 jurisdiction of the matter under 28 U.S.C. § 1332 and 28 U.S.C. § 1441(b). Pursuant to 28 U.S.C. § 17 1332, this Court has diversity jurisdiction over this matter because Plaintiffs reside in Nevada and 18 Allstate is an Illinois corporation, and the amount in controversy exceeds $75,000.00. 19 III. 20 The following facts are admitted by the parties and require no proof: At the time and place 21 Plaintiffs allege the subject loss occurred, September 1, 2019, Plaintiffs were insured by Defendant 22 with applicable dwelling protection limits of $2,964,000.00 and personal property protection limits of 23 $1,278,400.00. The policy provisions are incorporated herein by this reference. 24 IV. 25 The following facts, though not admitted, will not be contested at trial by evidence to the 26 contrary: None at this time. 27 / / / 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 V. 4 The following are the issues of fact to be tried and determined at trial: 5 (a) Plaintiffs’ View: 6 The following issues of fact are to be tried and determined at trial include the following 7 (among other possible issues to be presented at trial): 8 1. In 2003, Michael and Theresa Minden (the “Mindens” or “Plaintiffs”) purchased a new 9 high-end custom home located at 4 Highland Creek Drive, Henderson, Nevada 89052 10 (the “Property”), where the Mindens have since resided. 11 2. The Mindens have been long-time loyal customers of Allstate. Since 2003 and 12 continued through this day, the Mindens maintained an active insurance policy over 13 the Property through Allstate (the “Policy”). 14 3. A sudden storm hit the Property on or around September 1, 2019, which Allstate has 15 determined is the “time of loss.” 16 4. At the time of loss, Plaintiffs were insured by Defendant with applicable dwelling 17 protection limits of $2,964,000.00 and personal property protection limits of 18 $1,278,400.00. 19 5. When water began leaking in the interior of the Property in November 2019 from 20 rainstorms subsequent to the time of loss, the Mindens contacted Allstate on 21 November 14, 2019. 22 6. On or about November 21, 2019, Allstate’s claim adjuster, Adam Chavez, inspected 23 the Property. 24 7. After the only inspection of the Property by Mr. Chavez on November 21, Mr. Chavez 25 and Allstate determined to extend coverage to the Property as “sudden and accidental 26 direct physical loss to the [P]roperty.” 27 / / / 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 8. Allstate and Mr. Chavez extended coverage for eight (8) wind-damaged roof tiles and 4 for all the interior damage to the Property caused by the intruding water “as sudden 5 and accidental.” 6 9. Mr. Chavez, however, concluded that the felt underlayment or membrane of the roof 7 was not covered by the policy because it had deteriorated due to “wear and tear . . . 8 allowing rain water to enter home.” 9 10. In order to repair the interior of the Mindens’ Property, there are three main types of 10 work: water mitigation (drying and removal of the water), mold remediation (treating 11 the mold), and repairs or restoration of the damage (fixing the damage). 12 11. After Mr. Chavez’s inspection on November 21, 2019, he prepared a restoration 13 estimate to repair the Mindens’ Property. After depreciation and the $1,000.00 14 deductible, the total damage to the Mindens’ Property based on Mr. Chavez’s 15 restoration estimate was $2,887.56. 16 12. Allstate did not issue a check to the Mindens for the $2,887.56 at that time. 17 13. Allstate’s claim manual requires that payments be made promptly and does exempt 18 prompt payment if the insured does not authorize payment. 19 14. Allstate did not issue a check to the Mindens for the $2,887.56 at that time because, 20 according to Mr. Chavez, “Mr. Minden never authorized me to.” 21 15. During his inspection, Mr. Chavez did not fully document or inform the Mindens 22 which tiles would be covered, and to this day, Allstate does not know which 8 tiles it 23 agreed to cover as required by its policies and procedures. 24 16. Following Mr. Chavez’ inspection, Mr. Chavez requested that an Allstate contractor 25 also inspect the Property for water mitigation and mold remediation and directed that a 26 temporary tarp to be installed over a portion of the roof of the Property. 27 / / / 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 17. Per Mr. Chavez’ request, two of Allstate’s vendors or contractors – Thistle DKI and 4 D&L Roofing – were retained to inspect the roof, including the underlayment or felt, 5 and to tarp the roof. 6 18. Within a month of the claim being submitted, Allstate had its own adjustor inspect the 7 roof of the Property and also had two roofing contractors inspecting and tarping the 8 roof of the Property. 9 19. The evening of November 21,2019, Mr. Minden sent a text message to Mr. Chavez 10 stating, “Ceiling came down tonight off the kitchen.” 11 20. Despite the text message from Mr. Minden, Mr. Chavez did not inspect the Property 12 again to update his restoration estimate. 13 21. Mr. Chavez said he was going to arrange for a second restoration estimate prepared by 14 an Allstate contractor. 15 22. Despite Mr. Chavez’ notes in the claim file and telling Mr. Minden that Allstate would 16 obtain another estimate, Allstate never obtained a second estimate to repair damage to 17 the Mindens’ Property. 18 23. On November 27, 2019, Allstate’s contractor (Thistle DKI), which was preparing a 19 mold remediation and water mitigation estimate, emailed Mr. Chavez stating that 20 “Cause of loss is a roof leak in multiple areas. affecting [sic] 3 hallways master closet, 21 master show, storage room hall closet and hall bath downstairs.” Thistle DKI’s email 22 further states, “mold was found during our initial inspection” and that “[m]old removal 23 will begin once roof is repair[ed]” as there “could be more damage.” 24 24. Thistle DKI prepared two estimates, one for mold remediation ($13,742.81) and 25 another for water mitigation ($24,506.79). Thistle DKI did not prepare a restoration 26 estimate to repair the damage to the Property. 27 25. There is no evidence that Allstate sent the Mindens the water mitigation estimate of 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 26. Thistle DKI’s estimates and emails indicated additional damage to the Property that 4 was not covered by Mr. Chavez in his estimate. Despite seeing that there was more 5 extensive damage to the Property than originally inspected, Mr. Chavez did not inspect 6 the Property again and did not have another restoration estimate prepared of the 7 damage to the Mindens’ Property. 8 27. After the tarping by Allstate’s contractor, water continued to leak into the interior of 9 the Property because the tarp did not cover the entire roof and it was not secured and 10 the wind and elements caused the tarp and sandbags to be blown about and to 11 deteriorate. 12 28. Allstate did not reinspect the Property – or even offer to reinspect it – after the 13 Property incurred additional damage caused by the leaking roof and after the Mindens 14 paid to repair the roof. 15 29. On November 21, 2019, Mr. Chavez advised Mr. Minden to have a roofer come 16 inspect the Property and determine the cause of the damage and costs to repair. 17 30. Per Mr. Chavez’ instructions, the Mindens arranged for a local roofing company, 18 Prestige Roofing, Inc. (“Prestige”), to inspect the roof and determine the cause of the 19 damage. 20 31. On November 27, 2019, Prestige informed the Mindens that the damage to the 21 Property was the result of exposure caused by missing or broken roof tiles that were 22 displaced by wind. 23 32. On December 13, 2019, the Mindens informed Allstate of Prestige’s findings – 24 specifically, that extreme winds shattered and displaced roofing tiles – exposing 25 certain portions of the Mindens’ home. In Prestige’s inspection and resulting estimate, 26 they found a “higher” amount of tile breakage on the Mindens’ roof and estimated that 27 600 square feet of roof tiles would have to be replaced on the Mindens’ roof. 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 33. Allstate was not willing to consider the findings of Prestige – that extreme winds 4 shattered and displaced roofing tiles exposing certain portions of the Mindens’ home – 5 based on Allstate’s early determination that leaks in the Mindens’ roof and damage to 6 the Property was caused by “wear and tear only.” Allstate continued to maintain that it 7 would only cover 8 wind-damaged tiles on the roof and all of the interior damage. 8 34. In late January 2020, Allstate decided to close or suspend the Mindens’ claim because 9 Mr. Minden purportedly did not return one phone message left by Mr. Chavez in one 10 week. 11 35. On January 29, 2020, Allstate sent a letter to the Mindens stating, “We’ve been unable 12 to reach you regarding the claim you filed under Allstate Property and Casualty 13 Insurance Company 00098637067 on November 14, 2019. As a result, we’ve 14 temporarily suspended your claim.” 15 36. On the same day, however, Allstate sent another letter to the Mindens stating, 16 We appreciate the time you’ve spent assisting us with your claim. To recap our phone conversation about your water damage, you have decided not to accept our 17 offer to hire a professional water removal service for your property. You declined this because you have not decided on how you would like to move forward with 18 the claim. 19 We hope you will reconsider. It’s important to remove water right away after a loss because: 20  Water may cause further damage 21  Moisture can lead to mold formation  Failure to remove water could lead to a full or partial denial of your claim 22 You policy outlines this in “Section I – Conditions”; Paragraph – “What You 23 Must Do After A Loss.” 24 This section reads in part as follows: 25 “In the event of a loss to property that may be covered by this policy, you must . . . Protect the property from further loss. Make any reasonable repairs to protect it. 26 Keep an accurate record of any expenses . . . .” 27 If you reconsider and would like our assistance in hiring a water removal service, I’d be happy to assist. 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 37. In late January/early February 2020, Allstate arranged for J&J Contracting, LLC 4 (“J&J”), one of Allstate’s preferred vendors, to inspect the Property and provide a 5 thorough inspection of the Property and prepare a detailed estimate of the repair costs 6 for Allstate. 7 38. In late January/early February 2020, J&J’s estimator, Daniel Merritt, accompanied by 8 one of J&J’s senior roofers, performed an inspection of the Property. In an e-mail 9 dated February 3, 2020, Mr. Merritt from J&J wrote to Mr. Chavez at Allstate: 10 Adam we were called to inspect this property and found there are a lot of broken tiles on this rooftop. We want to walk this property with you one more time if you 11 have an availability to show you what we think happened to break all of these roofing tiles. We are doing the estimate on the interior for the water damage as 12 well but the bigger thing is to re-walk the roof with you one more time with what we think is going on there. 13 14 39. J&J discovered that over Seventy-Five Percent (75%) of the Property’s roof tiles were 15 cracked either on the corners or straight across. Mr. Merritt specifically tested the roof 16 tiles’ strength both by walking across tiles and picking up and dropping tiles. Mr. 17 Merritt discovered that walking across the tiles did not cause breakage, but picking up 18 and dropping the tiles did, suggesting that the tiles were in fact broken from harsh and 19 severe winds. 20 40. The next week, Mr. Merritt e-mailed Mr. Chavez to report his findings. Specifically, in 21 an e-mail dated February 6, 2020 from J&J to Mr. Chavez at Allstate, J&J stated, 22 My senior roofer and I walked this property and found that over 75 percent of this roof has broken tiles. . . . We found that walking on these tiles does not cause this 23 as we tried, but when we attempted to lift the tile and reset it back down, breakage occurred. This is most likely caused by very high and possibly tornadic wind gusts 24 as this is the highest house on the hill and would not receive any protection from the wind from other houses. With this being said, we would recommend a full roof 25 replacement due to this. Please see the photos attached to this email for review. I have not generated this estimate yet pending Allstate review on what is going to 26 be accepted. 27 / / / 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 41. Mr. Chavez responded to J&J by claiming that the pictures provided by J&J appeared 4 to support Mr. Chaves’s inference that the damage was actually caused by normal 5 “wear and tear” and “expansion and contraction” of the roof tiles over time. Allstate 6 was not willing to consider the findings of J&J – that extreme winds shattered and 7 displaced roofing tiles exposing certain portions of the Mindens’ home. 8 42. Allstate continued to deny full coverage based on Allstate’s early determination that 9 leaks in the Mindens’ roof and damage to the Property was caused by “wear and tear 10 only.” 11 43. After Allstate denied full coverage of the damages, J&J was asked to provide an 12 investigation for the sole purpose of determining the cause of the damages. 13 44. J&J returned to the Property once again, and specifically inspected the roof to 14 determine if the damage was the result of improper installation. Subsequently, J&J 15 determined that the roof tiles were, in fact, installed correctly. With improper 16 installation ruled out, J&J prepared a detailed report, including pictures of the properly 17 installed roof tiles and an estimate to repair the damages. Following this inspection, 18 Mr. Merritt e-mailed the Mindens with J&J’s findings, which described “[the damage] 19 was due to a sudden wind event such as a micro burst or strong gust which would’ve 20 lifted these tiles and broke them when they laid back down.” In the e-mail, Mr. Merritt 21 recommended a full roof replacement “as partial replacement is not and [sic] option 22 due to the amount damaged.” 23 45. J&J and Mr. Merritt prepared an estimate for a full roof replacement of the Mindens’ 24 roof totaling $110,426.54. 25 46. J&J and Mr. Merritt also prepared a restoration estimate for the interior of the 26 Mindens’ Property on or about August 13, 2020 in the amount of $27,068.15, which 27 was almost 10 times more than Allstate’s restoration estimate of $2,887.56. 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 47. On May 15, 2020, J&J e-mailed Allstate stating, 4 I did go back out to the Minden residence he asked me to write up the same report I originally wrote up for the roof tiles. But I do understand Allstate’s stand on 5 there is no way to prove that was the case or what was the case for the breakage. I do not want to be in the way of Allstate coverage determination. I do understand 6 claim coverage has to have more compelling proof in most cases. I will not pursue that anymore and I will let Allstate make the determination on what is to be 7 covered. 8 48. On May 15, 2020, Mr. Chavez sent an e-mail to George Parks at J&J, stating, “Here 9 are not [sic] photos from the Minden roof, I really only see wear and tear. Please let 10 me know what your thoughts are on it.” 11 49. Allstate continued to deny full coverage of the loss despite the opinions from Prestige 12 and J&J. 13 50. Throughout this time, water continued to leak into the interior of the Property because 14 the tarp installed by Allstate’s contractor did not cover the entire roof and it was not 15 secured and the wind and elements caused the tarp and sandbags to be blown about 16 and to deteriorate. 17 51. The Mindens retained Reid Rubinstein & Bogatz to negotiate coverage of the loss. On 18 June 5, 2020, Scott Bogatz, Esq. e-mailed Allstate a demand letter concerning full 19 coverage of the loss. The demand letter specifically addressed Allstate’s denial of the 20 coverage for the majority of the broken roof tiles as well as the underlying felt. 21 52. Allstate reopened the claims and transferred the Mindens’ policy dispute to Allstate’s 22 claims department, where handling was assigned to Jonathan Bourne. 23 53. On June 17, 2020, Mr. Bourne responded to the June 5, 2020, demand letter through e- 24 mail by maintaining Allstate’s position. Mr. Bourne did not authorize full coverage of 25 the damages described by J&J. 26 / / / 27 / / / 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 54. Mr. Bourne caused payment to be issued to the Mindens in the amount of $2,887.56, 4 which was for the eight (8) wind-damaged roof tiles and Allstate’s estimate for the 5 restoration of the damage to the interior of the Property per the estimate prepared by 6 Mr. Chavez on November 21, 2019. 7 55. By June 2020, the tarp had severely deteriorated, which resulted in additional water 8 seeping through the roof and scraps of debris, tarp, and loose sand from the weight 9 bags descending throughout the Property. 10 56. In mid-June 2020, Allstate also denied coverage for a replacement tarp to be placed on 11 the roof of the Property even though the first tarp installed by Allstate’s contractor was 12 worn and deteriorated and was not protecting the Property. 13 57. Allstate arranged for an engineer, Robert Bosek of EFI Global Inc. (“EFI”), to inspect 14 the Property. On June 30, 2020, Mr. Bosek inspected the Property including the roof. 15 Included in Mr. Bosek’s report was a detailed description of the extensive damage to 16 the interior and roof of the Property. 17 58. Mr. Bosek’s report concluded that there was no wind damage to the Mindens’ Roof. 18 Mr. Bosek’s report also included the following recommendation to Allstate: “The 19 roofing assembly should be tested to locate the leak locations.” 20 59. As of July 2020, Allstate had at least four – five counting J&J – adjustors, contractors, 21 and/or engineers inspect the roof. Allstate never varied from the initial assessment 22 made by Mr. Chavez that the roof was damaged by wind on September 1, 2019, but 23 that Allstate would only cover 8 wind-damaged tiles on the roof, and the remainder of 24 the roof, including the felt or underlayment was excluded from coverage because of 25 wear and tear. 26 / / / 27 / / / 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 60. Allstate never obtained another restoration estimate to repair the interior of the 4 Mindens’ Property other than Mr. Chavez’s November 21, 2019 estimate even though 5 Mr. Chavez said that Allstate would have a contractor prepare another estimate. 6 Allstate undeniably agreed to cover the damage to the interior of the Property. 7 61. Almost a year after the Mindens filed the claim, the Mindens retained Roberts Roof to 8 repair the roof of the Property. 9 62. Roberts Roof removed all the ceramic tiles and the felt or underlayment from the roof. 10 Roberts Roof installed a new underlayment and reinstalled the existing tiles that could 11 be reused. For the tiles that were broken and could not be reused, Roberts Roof 12 installed new tiles that do not match the existing tiles. Roberts Roof replaced about 6- 13 8% of the tiles on the Property or between 500-600 tiles. Thus, 92-94% of the roof is 14 the original tiles. 15 63. Allstate did not reinspect the Property – or even offer to reinspect it – after the 16 Property incurred additional damage caused by the leaking roof and after the Mindens 17 paid to repair the roof. 18 64. On September 6, 2022, almost three years after Mr. Chavez inspected the Property and 19 as discovery was coming to a close in this matter, Allstate’s counsel wrote an e-mail to 20 the Mindens’ counsel admitting for the first time that Allstate owed the Mindens 21 $29,506.79 for mold remediation and water mitigation because the Mindens’ finally 22 had this work completed. 23 65. The $29,506.79 – which Allstate now admits it owes to the Mindens under the Policy – 24 should have been paid to the Mindens back in November or December 2019. Instead, 25 Allstate waited almost three years and the Mindens filing and litigating this action 26 before it admitted or even informed the Mindens that it owed them $29,506.79 and 27 offered to pay it. 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 66. As admitted by Allstate, the Mindens’ damages are at least 10 times the amount 4 Allstate paid the Mindens in June 2020 ($2,887.56). 5 67. The interior of the Property suffered substantially more damage than Allstate offered 6 to pay even though the interior damage was covered by the Policy and even though 7 Allstate undeniably agreed to cover all the damage to the interior of the Property. 8 68. At the time of loss, the Property sustained substantial damage to the roof, exposing the 9 underlying roof membrane or felt. The Mindens’ roof was severely damaged by wind, 10 which Allstate failed to cover and repair even though it was covered by the Policy. 11 69. Allstate’s repair estimate completed on November 21, 2019 only covers a small 12 fraction of the damage to interior and roof of the Property. 13 70. The extent of Plaintiffs’ damages. Plaintiffs are seeking the following damages: 14 Description Damage Amount Full Replacement of Roof (MINDEN 73-188; $104,279.00 - 15 MINDEN 16194; MINDEN 16445-16575) $127,562.50 Roof Tarp by Precision Roofing (MINDEN 428) $4,000.00 16 Work performed by Kalb Industries (MINDEN 438- $20,070.00 448) 17 Work performed by GSL Electric (MINDEN 16186- $8,921.00 16188) 18 Work performed by Contract Carpet, Inc. (MINDEN $5,900.00 16189) 19 Work performed by Closets and Cabinetry (MINDEN $22,800.00 16190) 20 To repair concrete (MINDEN 16191; MINDEN 16445- $18,500.00 16575) 21 Painting of Exterior of Residence (MINDEN 16193; $13,900.00 MINDEN 16445-16575) 22 Work performed by Roberts Roof & Floor (MINDEN $495.00 16196) 23 Remediation and Repair of Interior of Residence $240,054.00 - (M.GEIB_1-240; M.GEIB_270; MINDEN 16445- $322,692.93 24 16575) Total amount of insurance premiums paid to Allstate $140,000.00 25 (approximate) Impact on equity of residence $6,500,000.00 26 Loss of use and enjoyment of the residence $198,322.00 27 Rent for six months while Property is repaired $36,000.00 Moving expenses while Property is repaired $25,000.00 Damage to fine suits and dresses $18,000.00 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 Description Damage Amount Work performed by Immaculate Restoration $6,964.20 4 (GEIB_FILE_16-21; MINDEN 16444) Attorneys’ Fees and Costs through Aug. 2022 (to be $238,886.09 5 supplemented) (MINDEN 16631-16658) Emotional Distress $7,500,000.00 6 Total: $15,149,771.57 - $15,255,694.00 7 8 As a direct and proximate result of Allstate’s conduct, the Mindens stand to lose coverage 9 guaranteed by the Policy even though the Mindens have continued to pay their insurance premiums 10 for 19 years. 11 Because Allstate has refused to honor the Policy and fully cover the damages, the Mindens 12 have been unable to derive use and enjoyment of their home. As a direct and proximate result of the 13 Defendants’ conduct, the Minden have dealt with daily stress and worry of further water damage from 14 their still unrepaired roof and have had to live in a home in complete disrepair. 15 In order to mitigate their damages, the Mindens have covered the cost to repair some damage 16 to the Property. However, the large majority of the damage to the Property remains in complete 17 disrepair. 18 Construction costs, labor, and materials have increased substantially from the original repair 19 estimate provided in 2019 and 2020 and the costs to repair the Property will be much greater than 20 originally estimated. 21 Plaintiffs also seek damages based on lost equity that they have not been able to realize by 22 selling their home. Because Allstate has refused to honor the Policy and fully cover the damages, the 23 Mindens have not been able to sell their home at the height of the real estate market and realize the 24 equity in the Property. Because Allstate has refused to honor the Policy and fully cover the damages, 25 Mindens have not been able to sell their home at the height of the real estate market and the cost of 26 land has increased by 50% and the costs to build a new home has increased by 40%. 27 Plaintiffs also claim damages for clothes that were ruined by the leaky roof. 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 Plaintiffs will seek punitive damages to the fullest extent allowed by law because Allstate’s 4 conduct constitutes oppression, fraud, or malice. See NRS 42.001 & 42.005. 5 Plaintiffs will also seek their attorneys’ fees and costs in this matter. 6 Plaintiffs will also seek interest as allowed by law. 7 (b) Defendant’s View: 8 1. Were the leaks in the Minden roof the result of poor installation and long-term wear 9 and tear? 10 2. Were any of the concrete tiles on the Minden roof displaced by wind? 11 3. Did the Minden’s failure to preserve the underlayment and damaged tile that were 12 replaced in October of 2020, prejudice Allstate. 13 VI. 14 The following are the issues of law to be tried and determined at trial: 15 (a) Plaintiffs’ view: The following issues of law are to be tried and determined at trial 16 include the following (among other possible issues to be presented at trial): 17 1. Breach of Contract: To succeed on their breach of contract claim, the Mindens must 18 show four elements: (1) a valid contract between the parties; (2) the Mindens’ 19 performance under the contract; (3) Allstate’smaterial failure to perform; and (4) 20 damages resulting from the failure to perform. See Restatement (Second) of Contracts 21 § 203 (2007); Calloway v. City of Reno, 116 Nev. 250, 256, 993 P.2d 1259, 1263 22 (2000) (“A breach of contract may be said to be a material failure of performance of a 23 duty arising under or imposed by agreement.”). 24 a. Whether Allstate breached the Policy by only paying for a small fraction of the 25 interior Property damage. 26 b. Whether Allstate breached the Policy by not fully covering damaged to the 27 Mindens’ roof. 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 2. Tortious Breach of the Covenant of Good Faith and Fair Dealing (Bad Faith): An 4 insurance company commits tortious breach when in bad faith, it refuses to pay its 5 insured under their policy without good cause. “The duty violated arises not from the 6 terms of the insurance contract but is a duty imposed by law, the violation of which is 7 a tort.” U.S. Fidelity & Guaranty Co. v. Peterson, 540 P.2d 1071 (Nev. 1975). The 8 Nevada Supreme Court has further stated that “‘[b]ad faith is established where the 9 insurer acts unreasonably and with knowledge that there is no reasonable basis for its 10 conduct.’” Albert H. Wohlers & Co., 969 P.2d at 956 (quoting Guaranty Nat'l Ins. Co., 11 912 P.2d at 272 (emphasis added)). An unreasonable delay in payment can also 12 constitute bad faith. Guar. Nat’l Ins. Co., 912 P.2d at 272 (“[T]his court has addressed an 13 insurer’s breach of the implied covenant of good faith and fair dealing as the unreasonable 14 denial or delay in payment of a valid claim.”). “[A] partial payment does not insulate the 15 insurer from a bad faith claim if it delays or denies paying the entire loss.” Kingham, 16 2017 U.S. Dist. LEXIS 162607, at *4. 17 a. Whether Allstate committed bad faith in handling the Mindens’ claim. The 18 Mindens allege that the following conduct by Allstate constitutes bad faith 19 (among other conduct by Allstate): 20  After Mr. Chavez’s inspection on November 21,2019, he prepared an estimate of damages to repair the Mindens’ Property. After depreciation and the 21 $1,000.00 deductible, the total damage to the Mindens’ Property based on Mr. Chavez’s estimate was a mere $2,887.56, which also included the eight (8) 22 broken roof tiles. That evening after Mr. Chavez’s inspection, Mr. Minden sent a text message to Mr. Chavez stating, “Ceiling came down tonight off the 23 kitchen.” Despite the text message from Mr. Minden, Mr. Chavez did not inspect the Property again and update his estimate. 24  Mr. Chavez stated that he was going to arrange for another contractor to come 25 inspect the damage to the Property and prepare a second estimate of the cost of repair. However, despite his notes in the claim file and telling Mr. Minden that 26 Allstate would obtain another estimate, Allstate never obtained a second estimate to repair damage to the Mindens Property. 27 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3  In November and December 2019, Allstate did not issue a check to the Mindens for the $2,887.56 because, according to Mr. Chavez, “Mr. Minden 4 never authorized me to.” Contrary to Mr. Chavez’ testimony, Allstate’s claim manual requires that payments be made promptly and does exempt prompt 5 payment if the insured does not authorize payment. 6  Further, Allstate’s contractor, Thistle DKI, prepared two estimates, one for mold remediation ($13,742.81) and another for water mitigation ($24,506.79). 7 Thistle DKI, however, did not prepare an estimate to repair the damage to the Property. Thistle DKI’s estimates and emails indicate additional areas of 8 damage to the Property that was not covered by Mr. Chavez in his estimate on November 21, 2019. Despite knowing that there was more extensive damage 9 to the Property than originally inspected, Mr. Chavez did not inspect the Property again and did not have another estimate prepared of the cost to repair 10 the damage to the Mindens’ Property. Specifically, Mr. Chavez testified as follows: 11 Q.· · But there’s areas [of damage] included in this [mold estimate] 12 that were not included in your repair estimate, correct? A.· · Correct. 13 Q.· · But you didn’t want to do another estimate for the repairs based on this? 14 A.· · No, because Thistle was doing a repair estimate. So they would include it in that. 15 Thistle, however, never prepared a repair estimate. 16  Allstate’s adjustor and contractor informed the Mindens that water mitigation, 17 mold remediation, and repair of the interior damage should not begin until the roof was repaired to stop the leaking. Allstate, however, was not willing to pay 18 to repair the leaking roof except for eight wind damaged roof tiles. Thus, water mitigation, mold remediation, and repair of the interior damage could not 19 begin until the Mindens paid to repair their leaking roof. 20  Allstate had knowledge that water continued to leak into the interior of the Property and cause additional damage to the Property after Mr. Chavez’s 21 inspection because the tarp Allstate’s contractor installed did not cover the entire roof and it was not properly secured. Even though water continued to 22 leak, Allstate did not update its repair estimate. Allstate’s repair estimate completed on November 21, 2019 was incomplete. As Allstate’s claims expert, 23 Mr. Evans, testified, Allstate cannot “determine the final scope and then estimate the costs of repairs until the leak has stopped and that requires repairs 24 to the roof. . . . [Y]ou have to stop the leakage before you know how much damage there is finally to the interior.” Mr. Evans testified that Allstate should 25 have done a reinspection after the roof is repaired to determine the extent of the interior damages. Mr. Evans further testified that Allstate is “likely” liable 26 for additional damage to the Property caused by an incorrectly or insufficiently installed tarp over the roof. 27 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3  Allstate acted unreasonable when it decided to close or suspend the Mindens’ claim in late January 2020 even though Allstate had not paid the Mindens for 4 the amounts Allstate knew it owed under the Policy. 5  In June 2020, seven months after the filing of the claim, Mr. Bourne caused payment to be issued to the Mindens in the amount of $2,887.56, which was 6 for the eight (8) broken tiles and Allstate’s estimate for the damage to repair the interior of the Property per the estimate prepared by Mr. Chavez on 7 November 21, 2019. Mr. Bourne, Allstate’s own adjustor, testified that the payment was not made in a timely or reasonable manner or in accordance with 8 Allstate’s policies and procedures. Allstate’s 30(b)(6) witness further testified that the $2,887.56 payment was not paid “promptly” as required by Allstate’s 9 claims manual. 10  Allstate had knowledge by June 2020, the tarp that its contractor had installed had severely deteriorated, which resulted in additional water seeping through 11 the roof and scraps of debris, tarp, and loose sand from the weight bags descending throughout the Property. In mid-June 2020, Allstate also denied 12 coverage for a replacement tarp to be placed on the roof of the Property even though the first tarp was worn and deteriorated and was not protecting the 13 Property. 14  In June 2020, Allstate arranged for Mr. Bosek of EFI to inspect the Property. On June 30, 2020, Mr. Bosek inspected the Property including the roof and 15 prepared a report based on his inspection. Along with the damage to the roof, Mr. Bosek’s report identifies substantial damage to the interior of the Mindens’ 16 home. Despite the substantial damage noted in Mr. Bosek’s report, Allstate never obtained another estimate of the damage to repair the interior of the 17 Mindens’ Property other than Mr. Chavez’s November 21, 2019 estimate. Mr. Chavez testified that Allstate did not believe another estimate of the interior of 18 the Property was needed despite the increase damage to the Property noted by Mr. Bosek, Allstate’s retained engineer: 19 Q.· · So at this time you weren't focused on the interior damages; is 20 that right? A.· · Correct. 21 Q.· · Why didn't you send out a new vendor to do an estimate of the estimate -- or of the interior at this time? 22 A.· · Again, I'm no longer involved in the claim other than what Jonathan [Bourne] sends me. 23 Q.· · But you didn't feel like a new estimate was needed for the interior at this point? 24 A.· · I didn't feel it was, no. 25  Allstate only admitted it owed the Mindens the amounts for the mold remediation and water mitigation – $29,506.79 total – on September 6, 2022, 26 almost three years after Mr. Chavez inspected the Property and as discovery was coming to a close in this matter. Allstate’s 30(b)(6) witness testified, 27 however, that it was reasonable and clear to Allstate that it owed those amounts back in December 2019. Thus, it took almost three years and the 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 the Mindens that it owed them $29,506.79 and offered to pay it. The Mindens assert that their damages are much greater. 4  The $29,506.79 – which Allstate now admits it owes the Mindens under the 5 Policy – should have been paid to the Mindens back in November or December 2019. 6  Allstate claimed that it could not pay the amounts for water mitigation and 7 mold remediation – $29,506.79 total – until the Mindens provided proof that the work had been completed. However, Allstate’s claim expert and Allstate’s 8 30(b)(6) witness testified that there is nothing in the Policy that provides that Allstate can withhold payments until certain work is done. Allstate’s 30(b)(6) 9 witness testified that the Mindens were never told that the mold remediation and water mitigation amounts would be paid to them once the work was 10 completed. 11  Allstate never informed the Mindens that it was always willing to pay for the mold remediation and water mitigation ($29,506.79), or any amounts above 12 the $2,887.56 for that matter. Allstate’s claim expert testified that to act reasonably, an insurer has an obligation to tell its insured if it owes money to 13 the insured under a policy that money will be paid out at some point. 14  Allstate’s 30(b)(6) witness testified that Allstate knew very early on that the Mindens’ damages for the claim “far exceeded $2,887.56.” 15  Mr. Chavez did not document or inform the Mindens which eight tiles would 16 be covered, and Allstate does not know which tiles 8 tiles it agreed to cover. Mr. Chavez further testified he did not document all the broken tiles that 17 Allstate was covering by photograph. 18  At his only visit to the Property on November 21, 2019, Mr. Chavez advised Mr. Minden to have a roofer come inspect the Property and determine the 19 cause of the damage and costs to repair. Per Mr. Chavez’ instructions, the Mindens arranged for a local roofing company, Prestige Roofing, Inc. 20 (“Prestige”), to inspect the roof and determine the cause of the damage. On November 27, 2019, Prestige informed the Mindens that the damage to the 21 Property was the result of exposure caused by missing or broken roof tiles that were displaced by wind. On December 13, 2019, the Mindens informed 22 Allstate of Prestige’s findings – specifically, that extreme winds shattered and displaced roofing tiles – exposing certain portions of the Mindens’ home. In 23 Prestige’s inspection and resulting estimate, they found a “higher” amount of tile breakage on the Mindens roof and estimated that 600 square feet of tile 24 would have to be replaced on the Mindens’ roof. Despite stating that Allstate would cover any tiles whose breakage could be attributed to a one-time storm 25 occurrent, Allstate was not willing to consider the findings of Prestige and continued to only provide coverage for eight (8) roof tiles. 26  Allstate’s own contractor, J&J, found extensive damage to the Mindens’ roof 27 caused by wind and asked that Mr. Chavez walk the Property and roof with them. Mr. Merritt testified that the underlayment or felt on the Mindens’ roof 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 “sun exposure.” Mr. Merritt further testified that he did not know how Mr. Chavez could have determined that only eight tiles were broken based on the 4 extent of the damage to the Mindens’ roof: “With the amount of damage, the number of tiles across the roof, it's -- it was -- there's too much -- too much 5 damage. It was a bigger percentage. So eight -- I wouldn't know -- even know where the number eight came from, to be honest.” 6 7 (b) Defendant’s View: Whether Defendant breached its contract of underinsured motorist 8 benefits, and the amount of Plaintiff’s entitlement to contractual underinsured motorist benefits under 9 the breach of contract cause of action. Further, the parties will try the questions of whether Allstate 10 adhered to the common law implied covenant of good faith and fair dealing, as well as the Unfair 11 Claims Practices Act, NRS 686A.310, et seq. 12 VII. 13 (a) The following exhibits are stipulated into evidence in this case and may be so marked by the clerk: 14 15 No. Description Bate Numbers 1 Allstate Property and Casualty Insurance Company ALLSTATE 16 Declarations and Policy POLICY 1-90 2 Allstate Property and Casualty Insurance Company Claim ALLSTATE 17 File CLAIMS 1-716 2a Claim Notes ALLSTATE 18 CLAIMS 1-54 2b First Notice of Loss Snapshot ALLSTATE 19 CLAIMS 57-60 2c Policy and Claim Summary ALLSTATE 20 CLAIMS 61-63 2d Email from Allstate to Michael Minden re First ALLSTATE 21 Notice of Loss Snapshot CLAIMS 87-89 2e 11/14/19 Letter from Allstate to Michael Minden ALLSTATE 22 CLAIMS 90 2f 12/12/19-12/13/19 Emails between Adam Chavez ALLSTATE 23 and Michael Minden CLAIMS 91-94 2g 01/29/20 Letter from Adam Chavez to the Mindens ALLSTATE 24 CLAIMS 95 2h 01/29/20 Letter from Adam Chavez to the Mindens ALLSTATE 25 CLAIMS 96-97 2i 06/05/20 Letter from Reid Rubinstein to Allstate ALLSTATE 26 CLAIMS 98-100 2j 06/17/20 Letter from Jonathan Bourne to Reid ALLSTATE 27 Rubinstein CLAIMS 101 2k 06/05/20-06/17/20 Emails between Jonathan Bourne ALLSTATE 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 No. Description Bate Numbers 2l 06/25/20 Letter from Reid Rubinstein to Jonathan ALLSTATE 4 Bourne CLAIMS 105-107 2m 06/26/20 Letter from Jonathan Bourne to Reid ALLSTATE 5 Rubinstein CLAIMS 108 2n 07/13/20 Email from Jonathan Bourne to Reid ALLSTATE 6 Rubinstein CLAIMS 109 2o 07/27/20 Email from Jonathan Bourne to Reid ALLSTATE 7 Rubinstein CLAIMS 110 2p 09/10/20 Emails between from Jonathan Bourne and ALLSTATE 8 Reid Rubinstein CLAIMS 111 2q J&J Contracting Records (Photographs) ALLSTATE 9 CLAIMS 134-205 2r J&J Contracting Records (Roofing Estimate) ALLSTATE 10 CLAIMS 206-321 2s Prestige Roofing Records ALLSTATE 11 CLAIMS 322-323 2t Thistle DKI Records/Reports (Estimate for tarping ALLSTATE 12 roof/carpentry work) CLAIMS 324-330 2u Thistle DKI Records/Reports (Estimate for mold ALLSTATE 13 remediation) CLAIMS 331-379 2v Thistle DKI Records/Reports (Estimate for water ALLSTATE 14 mitigation) CLAIMS 380-431 2w Thistle DKI Photo Sheets ALLSTATE 15 CLAIMS 432-532 2x EagleView Records/Reports and Photo Sheets ALLSTATE 16 CLAIMS 533-554 17 2y EFI Global Records/Reports ALLSTATE CLAIMS 555-584 18 2z Allstate Records/Reports ALLSTATE CLAIMS 585-603 19 2aa Allstate Photo Sheets ALLSTATE CLAIMS 604-716 20 3 Documents received from Kalb Industries of Nevada, Ltd. KALB 1-173 in response to Defendant’s Subpoena Duces Tecum 21 4 Documents received from Prestige Roofing, Inc. in PRESTIGE 1-14 response to Defendant’s Subpoena Duces Tecum 22 5 Documents received from Roberts Roof and Floor, Inc. in ROBERTS ROOF response to Defendant’s Subpoena Duces Tecum 1-52 23 6 Text messages to/from Pablo Mendoza/Roberts Roof and ROBERTS ROOF Floor, Inc. and Michael Minden dated October 8-9, 13-14, 53-120 24 19-21, 23, 27, 30, 2020; November 5, 9-10, 2020; December 15-17, 2020; March 9-10, 2021; and November 25 8-9, 12-13, 19-20, 2021 7 Email from Marco Rodriguez/Thistle DKI to Michael THISTLE DKI 1- 26 Minden dated December 11, 2019, with attached mold 49 remediation estimate/proposal 27 8 Letter from Allstate to Reid Rubinstein Bogatz 6/17/2020 MINDEN 194 9 Payment from Allstate in the amount of $2,887.56 MINDEN 195 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 No. Description Bate Numbers 10 Map View of Roof (1) MINDEN 225 4 11 Images MINDEN 226-252 12 Text Comments from Roofer MINDEN 253 5 13 Additional Photos of Upstairs Damage MINDEN 429-437 14 Kalb Reconstruction of Lower Roof 10/28/2020 MINDEN 438-448 6 15 Various invoices and estimates Various MINDEN 16186- 16198 7 16 Photographs of Plaintiffs’ Residence Various MINDEN 16198- 16210 8 17 Documents produced by Thistle DKI in response to THISTLE FILE 1- Subpoena Duces Tecum 14 9 18 Letter from Community Association 4/3/2020 MINDEN 16277- 16278 10 19 Letters from Allstate Insurance 1/29/2022 MINDEN 16279- 16281 11 20 Emails 12/2019-12/2020 MINDEN 16282- 16316 12 21 Text Messages 11/2019-10/2020 MINDEN 16317- 16359 13 22 Images: jpeg to PDF MINDEN 16360- 16400 14 23 Kalb Close Out Documents 2/12/2021 MINDEN 16401- 15 16439 24 Roberts Roof & Floor: Invoice 12/31/2020 MINDEN 16440- 16 16443 25 Immaculate Restoration: Invoice 4/6/2022 MINDEN 16444 17 26 Immaculate Restoration: Estimate 8/16/2022 MINDEN 16445- 16575 18 27 Text Message: Bart 11/21/2019 MINDEN 16603 28 Xactware Response Letter to SDT 8/31/2022 XACTWARE 1-2 19 29 Produced Documents XACTWARE 2- 107 20 30 Images: jpeg to PDF XACTWARE 108- 182 21 22 (b) As to the following exhibits, the party against whom the same will be offered objects 23 to their admission on the grounds stated: 24 (1) Set forth the plaintiff’s exhibits and objections to them. 25 No. Description Bate Defendant’s Numbers Objections 26 31 J&J Contracting Records (Emails between ALLSTATE Foundation, Michael Minden, Daniel Merritt, and Adam CLAIMS 117- Relevance, 27 Chavez) 133 Admissibility 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 No. Description Bate Defendant’s Numbers Objections 4 32 Documents received from J&J Contracting, J&J 1-154 Foundation, LLC in response to Defendant’s Subpoena Relevance, 5 Duces Tecum Admissibility 33 Allstate Insurance Company Property Claims ALLSTATE Foundation, 6 Handling Manual (Oct 2018 to Present) 1-238 Relevance, PRIVILEGED and CONFIDENTIAL and Authenticity, 7 Subject to Stipulated Protective Order entered Admissibility on August 15, 2022 8 34 Allstate Insurance Company Claim Bulletins ALLSTATE Foundation, US 186 and US 186R1 regarding Introduction 239-245 Relevance, 9 of Wind and Hail Percentage Deductible Authenticity, Endorsement for Commercial Customer Admissibility 10 Policies PRIVILEGED and CONFIDENTIAL and 11 Subject to Stipulated Protective Order entered on August 15, 2022 12 35 Allstate Insurance Company Learning Reports ALLSTATE Foundation, for Adam Chavez and Jonathan Bourne 246-247 Relevance 13 PRIVILEGED and CONFIDENTIAL and Subject to Stipulated Protective Order entered 14 on August 15, 2022 36 Allstate Insurance Company Claim ALLSTATE Foundation, 15 Summaries PRIVILEGED and 248-251 Relevance CONFIDENTIAL and Subject to Stipulated 16 Protective Order entered on August 15, 2022 37 Allstate Insurance Company Payment ALLSTATE Foundation, 17 Summaries PRIVILEGED and 252-253, 255- Relevance CONFIDENTIAL and Subject to Stipulated 257 18 Protective Order entered on August 15, 2022 38 Allstate Insurance Company Financial Log ALLSTATE Foundation, 19 PRIVILEGED and CONFIDENTIAL and 254 Relevance Subject to Stipulated Protective Order entered 20 on August 15, 2022 39 Estimate from Allstate 11/21/2019 MINDEN 53- Duplicate of 21 61 ALLSTATE CLAIMS 22 589-594 40 Letter from Prestige Roofing, Inc. to Michael MINDEN 62 Duplicate of 23 Minden 11/27/2019 ALLSTATE CLAIMS 323 24 41 Email string between Michael Minden and MINDEN 63- Duplicate of Adam Chavez 12/13/2019 64 ALLSTATE 25 CLAIMS 93- 94 26 27 / / / 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 No. Description Bate Defendant’s Numbers Objections 4 42 Email from Daniel Merritt to Adam Chavez MINDEN 65- Duplicate of 2/6/2020 66 ALLSTATE 5 CLAIMS 117-123 and 6 J&J 12-14, 18-21 7 43 Email from Daniel Merritt to Michael Minden MINDEN 67- Duplicate of 2/6/2020 70 ALLSTATE 8 CLAIMS 117-123 and 9 J&J 12-14, 18-21 10 44 Email from Daniel Merritt to Michael Minden MINDEN 71- Duplicate of 5/13/2020 72 ALLSTATE 11 CLAIMS 124-133 12 45 J & J Contracting Estimate 5/13/2020 MINDEN 73- Duplicate of 188 ALLSTATE 13 CLAIMS 206-321 14 46 Letter from Reid Rubinstein Bogatz to Allstate MINDEN Duplicate of Insurance 6/5/2020 189-191 ALLSTATE 15 CLAIMS 98- 100 16 47 Email from Jonathan Bourne to Scott Bogatz MINDEN Duplicate of 6/17/2020 192-193 ALLSTATE 17 CLAIMS 29 48 Letter from Reid Rubinstein Bogatz to Allstate MINDEN Duplicate of 18 Insurance 6/25/2020 196-198 ALLSTATE CLAIMS 19 105-107 49 Letter from Allstate to Reid Rubinstein Bogatz MINDEN 199 Duplicate of 20 6/26/2020 ALLSTATE CLAIMS 108 21 50 Email from Jonathan Bourne to Scott Bogatz MINDEN 200 Duplicate of 7/13/2020 ALLSTATE 22 CLAIMS 19 51 EFI Global Engineering Report 7/10/2020 MINDEN Duplicate of 23 201-224 ALLSTATE CLAIMS 24 561-584 52 Minden, EFI Global Report 7/10/2020 MINDEN Duplicate of 25 254-277 ALLSTATE CLAIMS 26 561-584 53 Email From Daniel Merritt – J&J Contracting- MINDEN 278 Duplicate of 27 2 5/13/2020 J&J 18-21 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 No. Description Bate Defendant’s Numbers Objections 4 54 J&J Contracting Itemization 2/1/2020 MINDEN Foundation, 279-426 Relevance, 5 Admissibility 55 Jonathan Bourne’s Communication 9/10/2020 MINDEN 427 Duplicate of 6 ALLSTATE CLAIMS 10 7 56 Invoice 1419TRP from Precision Roofing, Inc. MINDEN 428 Duplicate of 7/23/2020 J&J 24 8 57 EHDRS 2013-2020 – Highest to Lowest Wind MINDEN Foundation, Gust 449-16167 Authenticity, 9 Relevance, Admissibility 10 58 2021-07-06 Re_Minden v. Allstate Email MINDEN Foundation, 7/6/2021 16168-16169 Authenticity, 11 Relevance, Admissibility 12 59 Images- Interior 12/2/2019 MINDEN Foundation, 16170-16175 Authenticity, 13 Relevance, Admissibility 14 60 Notepad Text 12/27/2019 MINDEN Foundation, 16176 Authenticity, 15 Relevance, Admissibility 16 61 Text Screenshots Multiple MINDEN Foundation, 16177-16180 Authenticity, 17 Relevance, Admissibility 18 62 Images- Interior 12/2/2019 MINDEN Foundation, 16181-16185 Authenticity, 19 Relevance, Admissibility 20 63 Real Estate Report 5/2/2022 MINDEN Foundation, 16211 Authenticity, 21 Relevance, Admissibility 22 64 Comparable homes for rent MINDEN Foundation, 16212-16246 Authenticity, 23 Relevance, Admissibility 24 65 Comparable homes for sale MINDEN Foundation, 16247-16276 Authenticity, 25 Relevance, Admissibility 26 66 News Reports & Articles: Weather & Housing MINDEN Foundation, Market 16576-16582 Authenticity, 27 9/2019-7/2022 Relevance, Admissibility 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 No. Description Bate Defendant’s Numbers Objections 4 67 Real Estate Reports 2021-2022 MINDEN Foundation, 16583-16594 Authenticity, 5 Relevance, Admissibility 6 68 AGC Construction Inflation Report 2/2022 MINDEN Foundation, 16595-16602 Authenticity, 7 Relevance, Admissibility 8 69 Expenses & Fees 5/2020-7/2022 MINDEN Foundation, 16604-16630 Authenticity, 9 Relevance, Admissibility 10 70 RRB Attorney Fees & Expenses MINDEN Foundation, 16631-16658 Authenticity, 11 Relevance, Admissibility 12 71 Immaculate Restoration File GEIB_FILE 1- Foundation, 341 Authenticity, 13 Relevance, Admissibility 14 72 Marcor Platt Expert Report M.PLATT 1- Foundation, 79 Authenticity, 15 Relevance, Admissibility 16 73 Immaculate Restoration Estimate M.GEIB 1-271 Foundation, Authenticity, 17 Relevance, Admissibility 18 74 Marcor Platt Supplemental Report M.Platt 80-99 Foundation, Authenticity, 19 Relevance, Admissibility 20 75 Allstate Mayhem Commercial – Bunch of Foundation, Wind Authenticity, 21 (https://www.youtube.com/watch?v=bnNICw Relevance, 8KvJE) Admissibility 22 76 Allstate Mayhem Commercial – Snowy Roof Foundation, (https://www.ispot.tv/ad/IVKj/allstate- Authenticity, 23 mayhemsnow) Relevance, Admissibility 24 77 Allstate Mayhem Commercial – Racoon in Foundation, Attic Authenticity, 25 (https://www.youtube.com/watch?v=eCgCLa5 Relevance, j6wk) Admissibility 26 78 https://app.docusketch.com/portal/tour/149596 Foundation, 6/template/01dd2671-dcf4-4638-9ae8- Authenticity, 27 a9aead06beee?forceDollHouse=1 Relevance, Admissibility 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 No. Description Bate Defendant’s Numbers Objections 4 79 Email dated September 6, 2022 from Michael Foundation, Pintar, Esq. to Scott Bogatz, Esq. and Michael Relevance, 5 Kelley, Esq. Admissibility 6 Plaintiffs reserve the right to introduce any document that was produced in discovery at trial 7 for their case in chief, cross examination, and/or rebuttal. Defendant objects to Plaintiff’s reservation 8 and introduction of any document not listed herein. 9 (2) Set forth the defendant’s exhibits and objections to them. 10 No. Description Bate Plaintiffs’ Numbers Objection 11 80 Documents received from Anthem Country ANTHEM 1- Irrelevant Club Community Association in response to 65 12 Defendant’s Subpoena Duces Tecum 13 (c) Electronic evidence: Plaintiffs intend to present the electronic evidence listed below 14 for purposes of jury deliberations at this time. See Defendant’s objections to the same 15 as noted above in Section VII(b)(1). 16 No. Description Bate Numbers 17 75 Allstate Mayhem Commercial – Bunch of Wind None (https://www.youtube.com/watch?v=bnNICw8KvJE) 18 76 Allstate Mayhem Commercial – Snowy Roof None (https://www.ispot.tv/ad/IVKj/allstate-mayhemsnow) 19 77 Allstate Mayhem Commercial – Racoon in Attic None (https://www.youtube.com/watch?v=eCgCLa5j6wk) 20 78 https://app.docusketch.com/portal/tour/1495966/template/01dd2671 -dcf4-4638-9ae8- 21 a9aead06beee?forceDollHouse=1 22 (d) Depositions: None at this time. The parties, however, reserve the right to offer 23 deposition testimony consistent with the rules of unavailability once the trial date is 24 set. 25 (e) Objections to Depositions: The parties reserve the right to object to the use of 26 deposition transcripts and videotaped depositions of any witnesses offered by the 27 parties, to the extent allowable by the rules of evidence, and consistent with the rules 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 VIII. 4 The following witnesses may be called by the parties at trial: 5 (a) Plaintiffs’ Witnesses: 6 1. Michael Minden c/o Reid Rubinstein & Bogatz 7 300 S. 4th St., Suite 830 Las Vegas, NV 89101 8 (702) 776-7000 9 2. Theresa Minden c/o Reid Rubinstein & Bogatz 10 300 S. 4th St., Suite 830 Las Vegas, NV 89101 11 (702) 776-7000 12 3. Luis Diaz De Leon Rule 30(b)(6) designee and/or custodian of records for Defendant Allstate Property 13 and Casualty Insurance Company c/o McCormick, Barstow, Sheppard, Wayte & Carruth LLP 14 8337 West Sunset Road, Suite 350 Las Vegas, NV 89113 15 (702) 949-1100 16 4. Adam Chavez c/o McCormick, Barstow, Sheppard, Wayte & Carruth LLP 17 8337 West Sunset Road, Suite 350 Las Vegas, NV 89113 18 (702) 949-1100 19 5. Jonathan Bourne, Allstate Property and Casualty Insurance Company c/o McCormick, Barstow, Sheppard, Wayte & Carruth LLP 20 8337 West Sunset Road, Suite 350 Las Vegas, NV 89113 21 (702) 949-1100 22 6. Rule 30(b)(6) designee and/or custodian of records for Prestige Roofing, Inc. R. Thomas Romney 23 3405 Bunkerhill Drive North Las Vegas, NV 89032 24 7. Rule 30(b)(6) designee and/or custodian of records for J & J Construction Company 25 8775 A. Lindell Road, Suite 100 Las Vegas, NV 89139 26 (702) 333-4888 27 / / / 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 8. Daniel Merritt 4734 S Jensen Street 4 Las Vegas, NV 89147 or 5 4302 North Gold Dust Trial Cedar City, UT 6 (702) 682-2287 7 9. Robert Bosek, EFI Global Inc. 6380 McLeod Drive, #15 8 Las Vegas, NV 89044 9 10. Rule 30(b)(6) designee and/or custodian of records for Roberts Roof and Floor Inc. Michael McCarthy 10 Pablo Mendoza Roberts Roof and Floor Inc. 11 3250 Sirius Ave. Las Vegas, NV 89102 12 11. Mike Geib 13 Senior Project Manager Immaculate Restoration & Carpet Care 14 3255 Pepper Ln # 100A Las Vegas, NV 89120 15 12 Rule 30(b)(6) designee and/or custodian of records for Thistle DKI 16 Marco Rodriquez Danny Thistle 17 Thistle DKI 2242 Crestline Loop 18 North Las Vegas, NV 89030 (725) 235-6375 19 13. Peter S. Evans 20 c/o McCormick, Barstow, Sheppard, Wayte & Carruth LLP 8337 West Sunset Road, Suite 350 21 Las Vegas, NV 89113 (702) 949-1100 22 14. Marcor G. Platt, SE, PE 23 PSE 9805 South 500 West 24 Sandy, Utah 84070 (801) 943-5555 25 15. Rule 30(b)(6) designee and/or custodian of records for Precision Roofing, Inc. 26 8775 Lindell Road, Ste. 100 Las Vegas, NV 89139 27 (702) 969-9700 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 16. Rule 30(b)(6) designee and/or custodian of records for Kalb Industries of Nevada, Ltd. 4 George Jarvis Josi Dautel 5 Marty Comatov 5670 Wynn Road 6 Las Vegas, NV 89118-2313 (702) 365-5252 7 17. Rule 30(b)(6) designee and/or custodian of records for GSL Electric 8 Dustin Williams 5100 Sobb Ave. 9 Las Vegas, NV 89118 (702) 364-5313 10 18. Rule 30(b)(6) designee and/or custodian of records for Nevada Contract Carpet, 11 Inc. Jim Bucher 12 6840 West Patrick Lane Las Vegas, NV 89118 13 (702) 362-3033 14 19. Rule 30(b)(6) designee and/or custodian of records for Absolute Closets and Cabinetry 15 Jay Ward 6754 Spencer Street 16 Las Vegas, NV 89119 (702) 896-5450 17 20. Rule 30(b)(6) designee and/or custodian of records for Reveles Concrete LLC 18 PO Box 96276 Las Vegas, NV 89183 19 (702) 996-3143 20 21. Rule 30(b)(6) designee and/or custodian of records for J. Compton Painting & Paperhanging 21 Jeff Compton 6115 Grand Teton Dr. 22 Las Vegas, NV 89131 (702) 375-7621 23 24 Plaintiffs reserve the right to call any witness identified by Plaintiffs or Defendant during 25 discovery. Defendant objects to Plaintiff’s reservation and introduction of any witness not listed 26 herein. 27 / / / / / / 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 (b) Defendant’s Witnesses: 4 1. Michael Minden c/o Reid Rubinstein & Bogatz 5 300 South Fourth Street, Suite 830 Las Vegas, NV 89101 6 2. Theresa Minden 7 c/o Reid Rubinstein & Bogatz 300 South Fourth Street, Suite 830 8 Las Vegas, NV 89101 9 3. Jonathan Bourne Allstate Property and Casualty Insurance Company 10 PO Box 660636 Dallas, TX 75266 11 4. Adam Chavez 12 Allstate Property and Casualty Insurance Company PO Box 660636 13 Dallas, TX 75266 14 5. Luis Diaz de Leon Allstate Property and Casualty Insurance Company 15 PO Box 660636 Dallas, TX 75266 16 6. Peter S. Evans 17 Evans Adjusters 119 Underhill Road 18 Mill Valley, CA 94941 19 7. Timothy P. Marshall, PE/Meteorologist Haag Engineering Co. 20 1410 Lakeside Parkway, Suite 100 Flower Mound, TX 75029 21 8. Robert J. Bosek Jr., PE 22 EFI Global, Inc. 1420 Iowa Avenue, Suite 200 23 Riverside, CA 92507 24 9. Robin Callaway, General Manager Anthem Country Club Community Association 25 2518 Anthem Village Drive, Suite 110 Henderson, NV 89052 26 10. Daniel Merritt, Estimator 27 J&J Contracting, LLC 8775 South Lindell Road, Suite 100 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 2 3 11. R. Tom Romney Prestige Roofing, Inc. 4 3405 Bunkerhill Drive North Las Vegas, NV 89032 5 12. Michael McCarthy 6 Pablo Mendoza Roberts Roof and Floor, Inc. 7 3250 Sirius Avenue Las Vegas, NV 89102 8 13. Marco Rodriguez, Estimator 9 Danny Thistle Thistle DKI 10 2710 South Highland Drive Las Vegas, NV 89109 11 12 IX. 13 The attorneys or parties have met and jointly offer these three trial dates: 14 April 15, 2024 April 22, 2024 April 29, 2024 15 It is expressly understood by the undersigned that the Court will set the trial of this matter on one of the agreed-upon dates if possible; if not, the trial will be set at the convenience of the Court’s 16 calendar. 17 X. 18 It is estimated that the trial will take a total of seven (7) to ten (10) days. A jury trial has been 19 requested by Defendant. 20 APPROVED AS TO FORM AND CONTENT: 21 DATED this 17th day of October, 2023 22 REID RUBINSTEIN & BOGATZ 23 By /s/ Michael S. Kelley I. SCOTT BOGATZ, ESQ. 24 Nevada Bar No. 3367 MICHAEL S. KELLEY, ESQ. 25 Nevada Bar No. 10101 Attorneys for Plaintiffs 26 27 / / / 1 PROPOSED JOINT PRE-TRIAL ORDER CASE NO. 2:21-cv-151-APG-BNW 3 DATED this 17 day of October, 2023 4 McCORMICK, BARSTOW, SHEPPARD, 5 WAYTE & CARRUTH LLP By /S/ Michael A. Pintar 6 JONATHAN W. CARLSON, ESQ. Nevada Bar No. 10536 7 MICHAEL A. PINTAR, ESQ. Nevada Bar No. 3789 8 Attorneys for Defendant 10 XI. 11 ACTION BY THE COURT 12 This case is set for jury trial on the stacked calendar on April 22, 2024, at 9:00 a.m. in 13 || Courtroom 6C. Calendar call will be held on April 16, 2024, at 9:00 a.m. in Courtroom 6C. 14 15 DATED this 19th day of October, 2023. 16 By 17 UNITED STATES DISTRICT JUDGE 18 19 20 |] NOTICE: Due to the large number of criminal cases before this Court, civil trials may be held in a trailing status for months or assigned to another District Court Judge for trial. Therefore, the Court strongly urges the parties to consider their option to proceed before a Magistrate Judge pursuant to 92 || Local Rule IB 2-2, in accordance with 28 USC Section 636 and FRCP 73. 23 || The Clerk shall provide the parties with a link to AO 85 Notice of Availability, Consent, and Orde of Reference - Exercise of Jurisdiction by a U.S. Magistrate Judge form on the Court's website. 25 26 27 28 BARSTOW, PPARD, WAYTE &