Blog Post
CKDJS obtains Nevada Supreme Court win upholding exclusion in $1M umbrella policy
Christian Dichter & Sluga • Jul 10, 2021
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.
Christian Dichter & Sluga, P.C. is proud to announce that five of its lawyers have been recognized in the 2024 Edition of The Best Lawyers in America®. We are particularly excited that our partner JP Harrington Bisceglia has been recognized for the first name this year! Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Best Lawyers has earned the respect of the profession, the media and the public as the most reliable, unbiased source of legal referrals. For the 2024 edition of The Best Lawyers in America, more than 13+ million votes were analyzed to identify the top legal talent, as identified by their peers. Lawyers on The Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers based on professional expertise and undergo an authentication process to make sure they are in current practice and in good standing. Christian Dichter & Sluga, P.C. would like to congratulate the following lawyers named to 2024 The Best Lawyers in America list: J.P. Harrington Bisceglia Newly Recognized in 2024 Edition! · Insurance Law · Litigation - Insurance Doug Christian · Commercial Litigation · Insurance Law · Personal Injury Litigation – Defendants Stephen Dichter · Commercial Litigation · Criminal Defense: White-Collar · Litigation - Banking and Finance · Litigation - Securities Jill Ann Herman · Personal Injury Litigation - Defendants · Product Liability Litigation – Defendants Gena Sluga · Insurance Law · Litigation – Insurance · Appellate Practice · Commercial Litigation
Arizona Supreme Court Issues New Opinion on Policy Stacking
Christian, Dichter and Sluga is so proud to announce that for the 4 th consecutive year, our firm has been recognized in Chambers USA as one of the best insurance firms in Arizona. We are even more thrilled that we will have two lawyers individually ranked this year, our Managing Partner, Gena Sluga and Partner Amanda Taylor. Congratulations, Gena and Amanda, on being individually ranked by Chambers in the category of Arizona Insurance Law!
The University of San Diego School of Law Alumni Group Admittance to the United States Supreme Court
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. Every year, Super Lawyers evaluates lawyers across the country for its annual list of top attorneys. Each candidate is measured against 12 indicators of peer recognition and professional achievement. Nominees from more than 70 practice areas are considered. The patented multiphase selection process is rigorous and methodical. The Top Lists below take exclusivity one step further by featuring selected Super Lawyers attorneys with the most total points earned.
Our small band of intrepid lawyers has more Insurance Coverage Super Lawyers than any firm in the Southwest. Congratulations to our AMAZING lawyers.
We would like to Congratulate one of our firms founding members, Steve Dichter, for being selected as a Super Lawyer in white collar criminal defense.
Christian Dichter & Sluga is proud to announce that Partner Jeff Hutchins has been named a Super Lawyer in area of Business Litigation.
U.S. News & World Report and Best Lawyers ® , for the 13th consecutive year, announce the U.S. News - Best Lawyers ® "Best Law Firms" rankings. Christian Dichter & Sluga, P.C. has been ranked in the 2023 U.S. News - Best Lawyers ® "Best Law Firms" list nationally in 1 practice areas and regionally in 7 practice areas. Firms included in the 2023 U.S. News - Best Lawyers ® "Best Law Firms" list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise. The 2023 edition of U.S. News - Best Lawyers ® "Best Law Firms"; includes rankings in 75 national practice areas and 127 metropolitan - based practice areas. Additionally, one "Law Firm of the Year" was named in each nationally-ranked practice area. Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity. Christian Dichter & Sluga, P.C. received the following rankings in the 2023 U.S. News – Best Lawyers ® "Best Law Firms": National Tier 3 Litigation - Banking & Finance Regional Tier 1 Phoenix Commercial Litigation Criminal Defense: White-Collar Insurance Law Litigation - Banking & Finance Litigation - Insurance Regional Tier 2 Phoenix Litigation - Securities Personal Injury Litigation - Defendants ABOUT "BEST LAW FIRMS" The U.S. News - Best Lawyers ® "Best Law Firms" rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in the field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a 2023 ranking, a law firm must have at least one lawyer recognized in the 13th edition of The Best Lawyers in America ® list for that particular location and specialty. ABOUT U.S. NEWS & WORLD REPORT U.S. News & World Report is the global leader in quality rankings that empower people to make better, more informed decisions about important issues affecting their lives. A digital news and information company focused on Education, Health, Money, Travel, Cars and News, USNews.com provides consumer advice, rankings and analysis to serve people making complex decisions throughout all stages of life. More than 40 million people visit USNews.com each month for research and guidance. Founded in 1933, U.S. News is headquartered in Washington, D.C. ABOUT BEST LAWYERS Best Lawyers is the oldest and most respected lawyer ranking service in the world. For 40 years, Best Lawyers has assisted those in need of legal services to identify the lawyers best qualified to represent them in distant jurisdictions or unfamiliar specialties. Best Lawyers awards are published in leading local, regional and national publications across the globe. Lawyers who are nominated for consideration are voted on by currently recognized Best Lawyers working in the same practice area and located in the same geographic region. Our awards and recognitions are based purely on the feedback we receive from these top lawyers. Those who receive high peer reviews undergo a thorough verification process to make sure they are currently still in private practice. Only then can these top lawyers be recognized by Best Lawyers.