Sewell v. Capital One Fin. Corp.

401 F.Supp.3d 1159

Carol SEWELL, Plaintiff,

v.CAPITAL ONE FINANCIAL CORPORATION, et al., Defendants.

3:18-cv-00016-RCJ-CBC

United States District Court, D. Nevada.

Signed August 8, 2019

Mark C. Wenzel, Bradley, Drendel & Jeanney, Scott A. Glogovac, Glogovac Law LLC, Reno, NV, for Plaintiff.

Amy M. Samberg, Foran Glennon Palandech Ponzi & Rudloff, Phoenix, AZ, Casey G. Perkins, Dylan P. Todd, Foran Glennon Palandech Ponzi & Rudloff, Henderson, NV, for Defendants.

ORDER

ROBERT C. JONES, United States District Judge

This case arises from the death of Karen Todd, who drowned while trying to navigate an inflatable two-person canoe during a guided tour in the Arctic National Wildlife Refuge. The Plaintiff filed this suit to recover benefits under a life insurance policy, and now pending before the Court are competing motions for summary judgment. Because Ms. Todd was not a passenger in a common carrier and no material facts are in dispute, the Court grants the Defendant's Motion for Summary Judgment (ECF No. 27).

I. FACTS AND PROCEDURAL HISTORY

The facts material to this dispute are uncontested; the Parties simply disagree on whether those facts support a finding of coverage under the policy. Federal Insurance Company ("the Defendant") issued a blanket accident insurance policy ("the Policy") to Capital One Financial Corporation during the period in question. Under the Policy, the "persons insured" include Visa Signature cardholders, and their "spouse and dependent children." (Def.'s Mot. Summ. J. 3:1–17, Ex. 1, ECF No. 27.) The coverage provision of the Policy provides in relevant part that the Defendant "will pay the applicable Benefit Amount if an Accident results in a Loss not otherwise excluded. The Accident must result from a covered Hazard and occur during the policy period." (Pl.'s Mot. Summ. J. 2:21–23, Ex. 1, ECF No. 28.)

The Plaintiff's domestic partner, Ms. Todd, used her Capital One card to purchase from Alaska Alpine Adventures a twelve-day rafting and hiking adventure on the Kongakut River in the Arctic National Wildlife Refuge (the "Kongakut Adventure"). (Def.'s Mot. 5:26–28.) While on the trip, Ms. Todd and the other participants used two-person inflatable rafts (alternately referred to as canoes), to travel down the river. The rafts were operated and piloted by Alpine Adventures' guests. Each guest was responsible for steering his or her raft and had a paddle for propulsion and control. Alpine Adventures' employees did not have any physical control over the operation of the rafts on the river, and the rafts were not licensed or required to be by law. (Id. 7:6–15.)

On the eighth day of the trip, Ms. Todd and a fellow participant, Cheryl Minnehan, were traveling together in one of the two-person inflatable rafts. The participants on the Kongakut Adventure were preparing to eddy out before entering a section of class three whitewater in the river. According to Dan Oberlatz, the owner and founder of Alpine Adventures, class three water includes standing waves and obstacles that can knock over a boat. Regrettably, Ms. Todd and Ms. Minnehan were unable to eddy out successfully and fell into the river. Attempts to rescue them were unsuccessful, and they were pulled downstream and drowned. (Id. 7:16–8:6, Ex. 4.)

After the Plaintiff's claim for life insurance under the Policy was denied by the Defendant, the Plaintiff filed this action for breach of contract, bad faith, breach of the Nevada Unfair Claims Settlement Practices Act, and punitive damages for malice, fraud, or oppression. Now before the Court are competing motions for summary judgment.

II. LEGAL STANDARD

A court must grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett , 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining summary judgment, a court uses a burden-shifting scheme. The moving party must first satisfy its initial burden. "When the party moving for summary judgment would bear the burden of proof at trial, ‘it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.’ " C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc. , 213 F.3d 474, 480 (9th Cir. 2000) (quoting Houghton v. South , 965 F.2d 1532, 1536 (9th Cir.1992) ). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Catrett , 477 U.S. at 323–24, 106 S.Ct. 2548.

If the moving party fails to meet its initial burden, summary judgment must be denied, and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co. , 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine dispute of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed. R. Civ. P. 56(e) ; Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548.

At the summary judgment stage, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson , 477 U.S. at 249, 106 S.Ct. 2505. The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50, 106 S.Ct. 2505. Notably, facts are only viewed in the light most favorable to the non-moving party where there is a genuine dispute about those facts. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). That is, even where the underlying claim contains a reasonableness test, where a party's evidence is so clearly contradicted by the record as a whole that no reasonable jury could believe it, "a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id.

III. DISCUSSION

The Defendant argues that it is entitled to summary judgment, because Ms. Todd was not riding as a passenger in a common carrier when the accident occurred. The Court agrees.

A. Defining Common Carrier

The policy offered by the Defendant contains the following coverage:

We will pay the applicable Benefit Amount if an Accident results in a Loss not otherwise excluded. The Accident must result from a covered Hazard and occur within the policy period. The Loss must occur within one (1) year of the Accident.

(Pl.'s Mot. 2:21–23.) Thus, for coverage to exist: (1) a covered hazard must occur; (2) that results in an accident; (3) that causes a loss that is not excluded; and (4) that loss occurs within one year of the accident. The policy further defines the term hazard. It reads, in relevant part:

Financial Services Common Carrier Hazard means the circumstances, subject to the terms and conditions of the policy arising from and occurring on a Covered Trip while the Insured Person is:

1). riding as a passenger in or entering or exiting any Common Carrier

(Id. 3:2–5.) Consequently, Ms. Todd (the insured) must have been a passenger in a common carrier in order for a hazard to have occurred under the policy that resulted in an accident that caused an unexcluded loss. Common carrier is defined in the policy as "any licensed land, water or air conveyance operated by those whose occupation or business is the transportation of persons or things without discrimination and for hire." (Id. 3:15–16.)

The Parties agree that "Ms. Todd's death resulted from an ‘Accident’ and that the ‘Loss’ occurred within a year of that ‘Accident.’ " (Def.'s Mot. 9:17–18.) The Parties disagree whether the facts establish that Ms. Todd was a passenger in a common carrier establishing that the accident resulted from a covered hazard. The Plaintiff strenuously argues that common carrier should be defined at the level of the company that provided the guided tour and not at the level of the individual canoe, given commonly accepted definitions of common carrier. The Defendant argues in response that regardless of commonly accepted definitions, the policy contains its own definition of common carrier and that definition does not define common carrier at the company level.

The Court agrees with the Defendant. The Plaintiff cannot...