Filippo Sciarratta v. Foremost Insurance Company Grand Rapids Michigan, et al., No. 79604, 137 Nev. Adv. Op. 32 (Jul. 8, 2021).
Summary. Christian, Kravitz, Dichter, Johnson & Sluga (“CKDJS”) recently secured a victory for their insurer clients before the Supreme Court of Nevada in an appeal regarding the validity of an exclusion for damages “payable to insured” in a personal umbrella liability policy. The Court affirmed the Eighth Judicial District Court’s order granting summary judgment in favor of the insurers, concluding that NRS 687B.147—a statute governing disclosure of certain exclusions in connection with a “policy of motor vehicle insurance”—does not apply to umbrella policies. The Court also announced that an insured contesting application of an exclusion on the basis of nondisclosure must offer admissible evidence in support of that assertion (such as an affidavit). The District Court properly found that the exclusion was valid and precluded coverage for the insured’s claim for benefits under the umbrella policy’s liability insurance.
Background Facts. Appellant Filippo Sciarratta was injured in a single vehicle accident while riding as a passenger on his Kawasaki motorcycle; he alleged that his injuries were caused by the negligence of his friend, who was driving the motorcycle at the time. After recovering for his injuries under the driver’s own auto policy and the insured’s motorcycle policy (under which his friend was covered as a permissive user of the bike), the insured demanded an additional $1,000,000 in benefits under a personal umbrella liability policy. The umbrella carrier denied coverage, citing the policy’s “payable to an insured” exclusion, and litigation ensued. The insurer defendants retained CKDJS to defend and file a counterclaim for declaratory relief. (CKDJS is the joint venture law firm through which Christian Dichter & Sluga practices in Nevada) Nine months later, the insurer moved for summary judgment on all claims. Sciarratta opposed the motion, requesting additional time for discovery and arguing that the exclusion was unenforceable (in part) for the following reasons: 1) the exclusion did not comply with the disclosure requirements of NRS 687B.147 applicable to “a policy of motor vehicle insurance covering a passenger car”; and 2) he claimed that the insurer never sent him (or his wife) a copy of the policy containing the exclusion.
The district court found that NRS 687B.147 is inapplicable to umbrella policies, and that Sciarratta was an “insured” excluded from coverage under the liability policy at issue. The decision was certified as final pursuant to NRCP 54(b), and Sciarratta appealed to the Supreme Court. CKDJS attorneys Cara Christian and Gena Sluga briefed the issue to the court, and Ms. Sluga represented the client at the remote oral argument.
Nevada Supreme Court’s Opinion. In an opinion authored by Justice Stiglich, the Court unambiguously held that “a personal umbrella liability policy is not a ‘policy of motor vehicle insurance’” to which NRS 687B.147 applies. It did so distinguishing case law and legislative history concerning NRS 687B.145 from that relevant to the application of 687B.147—stating: “whereas NRS 687B.145 applies to ‘a policy of insurance covering the use of a passenger car’ . . . NRS 687B.147 applies only to ‘a policy of motor vehicle insurance covering a private passenger car.’” “NRS 687B.145 is predicated on the type of coverage, but NRS 687B.147 is predicated on the type of policy. We conclude that the words ‘motor vehicle’ distinguish NRS 687B.147 from NRS 687B.145 by limiting the application of NRS 687B.147 to primary motor vehicle policies.”
With respect to Sciarratta’s contention in opposition to summary judgment that no insured received written notice of the exclusion, the Court declined to adopt a rule governing the consequences for non-disclosure of an exclusion (as those circumstances were not properly before the trial court). Sciarratta’s affidavit of counsel was insufficient to meet his burden of production under NRCP 56(c)(1)(A), and the district court properly granted summary judgment. The Court was similarly unpersuaded by Sciarratta’s contention that the district court should have granted a request for more time to conduct additional discovery prior to granting summary judgment, citing the permissive language of NRCP 56(d) and stating“[t]he decision to grant or deny a continuance of a motion for summary judgment to allow further discovery is reviewed for an abuse of discretion.” The nonmovant must demonstrate that the requested discovery “enable him, by discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of fact.” The affidavit of counsel declaring an intention to depose several individual (only one of which “arguably relevant to Sciarratta’s theory that the policy was not delivered”) did not clearly articulate how discovery would alter the district court’s determination, and the district court was within its discretion to deny a continuance.
The Court therefore affirmed the district court’s order granting the insurers’ motion for summary judgment.
