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Sample Form Insured’s UIM Bad Faith Complaint against Insurer

Posted by: on Wed, Mar 25, 2015

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ALBRIGHT, STODDARD, WARNICK
& ALBRIGHT

801
South Rancho Drive, Suite D-4

Las
Vegas, Nevada  89106

Tel:       (702) 384-7111

Fax:      (702) 384-0605

Email:   gma@albrightstoddard.com

Attorneys for Plaintiffs

 

 

 
 

Plaintiff,

 

vs.

 

NATIONWIDE   INSURANCE, an Ohio Corporation, qualified in Nevada; DOES I-X and ROE   CORPORATIONS I-X, inclusive,

 

Defendant.

Case
No.:

 

Judge:
 

 

COMPLAINT FOR INSURANCE BAD FAITH

 

 

 

COMES NOW, Plaintiffs, , an individual,
and, an individual, (hereinafter collectively referred to as “Plaintiffs”), by
and through their attorneys, hereby complain and allege against Defendant,
NATIONWIDE INSURANCE, an Ohio corporation, DOES I-X, and ROE CORPORATIONS I-X,
inclusive (hereinafter “Defendant”), as follows:

THE
PARTIES

  1. Plaintiff  (hereinafter sometimes referred to as
    “Plaintiff ”) is and was at all times relevant hereto, a resident and citizen
    of the State of Nevada.
  2. Plaintiff (hereinafter sometimes referred
    to as “Plaintiff ”) is and was at all times relevant hereto, a resident and
    citizen of the State of .
  3. Defendant Nationwide Insurance, Inc.
    (hereinafter sometimes referred to as “Defendant Nationwide”) is and was at all times relevant hereto, an Ohio corporation, having its principal place of business in Columbus, Ohio, and qualified and registered to do business in the State of Nevada.
  4. The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants Does I through X
    and Roe Corporations I through X, including without limitation, any employer, franchisor, or owner d/b/a thereof,  not
    currently known and therefore not yet named herein, are unknown to Plaintiff, who therefore sues said Defendants by such fictitious names.  Plaintiff is informed and believes, and
    therefore alleges, that each of the Defendants designated as Doe Defendants or Roe Corporations is responsible in some manner for the events and occurrences referred to in this Complaint, and/or owes money to Plaintiff and/or may be affiliated with Congregation.  Plaintiff
    will ask leave of the Court to amend this Complaint and insert the true names and capacities of Doe Defendants I through X and Roe Corporations I through X when the same have been ascertained and to join said Defendants in this action.
  5. The underlying accident which is the subject matter of this lawsuit occurred County, Nevada , and the subject insurance policy was issued by Defendant Nationwide in Nevada  to the Plaintiff.

JURISDICTION AND VENUE

  1. Plaintiffs incorporate the preceding paragraphs of this Complaint as though said paragraphs were fully set forth at this point herein.
  2. Venue is proper in this district because the automobile accident that is  he subject matter of this lawsuit occurred in County, Nevada. Plaintiffs, who were injured in said accident, are residents of Las Vegas, Nevada.  Defendant Nationwide, the insurer of American Highway, Inc. and its driver,  (hereinafter “third-party driver” or “___”),
    engaged in the transaction of business within the State of _____ as an
    interstate motor carrier, transporting material and goods in and through the State of Nevada.
  3. This action involves written insurance contracts issued in ______ to be performed in _______ and thus jurisdiction and
    venue are properly before this Court pursuant to _____.

GENERAL ALLEGATIONS

  1. Plaintiffs incorporate the preceding paragraphs of this Complaint as though said paragraphs were fully set forth at this point herein.
  2. On January 24, 2013, _____, while acting within the course and scope of his employment with American Highway, Inc., an
    Illinois corporation, agency and/or statutory agency, was driving a truck
    (identified as truck no. 948) pulling a trailer (identified as trailer no.
    3719) (collectively the “Truck”) owned by American Highway, Inc. through Clark County, Nevada, on U.S. Highway Interstate 15 (“I-15”).
  3. At approximately 7:30 a.m. on said date _____drove the American Highway Truck into the Eagles Landing Flying J truck stop (hereinafter the “Truck Stop”) located in _____, in order to purchase
    diesel fuel and other items inside the truck stop convenience store.
  4. After fueling the American Highway Truck, consistent with the traffic flow pattern designed by the owners/operators of the Truck Stop (i.e., HCLM Two and High Country Fuels), ____ pulled said Truck forward, just ahead of the fueling bay he had just occupied, and temporarily parked the Truck in order to enter the convenience store shop to purchase certain items.
  5. After ______pulled the American Highway Truck forward, Plaintiff  drove his own Kenworth dump truck into the fueling bay previously occupied by ____(such that his (plaintiff’s) Kenworth dump truck was positioned immediately behind the American Highway Truck), and Plaintiff  began fueling his vehicle.  This action by Plaintiff pulling into the
    fueling bay just vacated by the American Highway Truck, while the American Highway Truck remained parked immediately ahead of said bay, was also consistent with the traffic flow pattern designed by the Truck Stop owners/operators.
  6. Because of the traffic flow design of the Truck Stop, and the location of the convenience store in relation to the
    fueling bays, the Truck Stop owners/operators encourage a practice whereby, immediately after fueling, each truck pulls forward to vacate the fueling bay
    (usually leaving a vehicle idling) just ahead of the fueling bay, while another vehicle then pulls in to occupy the vacated fueling bay.  This pattern allows truckers to leave their vehicles in closer proximity to the convenience store, so that they can shop
    for food or other items in the convenience store, and then return to their
    vehicles, which are parked in close proximity to the fueling pumps, and then pull forward to leave the premises.
  7. While fueling his vehicle immediately behind the American Highway Truck, Plaintiff  was standing immediately in front of his
    Kenworth dump truck, performing certain maintenance functions on the front of his own vehicle, such that he was standing in front of his own vehicle, but behind the American Highway Truck being operated by ____.
  8. Several minutes after entering the convenience store, ____ returned to the American Highway Truck and, for reasons unknown to Plaintiffs, in a manner which was negligent or negligent per se, or both, ____ released the brakes on the American Highway Truck even though he did not then intend to, and was not then ready to, pull forward and give full attention to operating the American Highway vehicle.  After
    releasing the brakes, ____did not pull forward or engage the engine or
    transmission of the vehicle, but negligently allowed gravity to take its
    course.
  9. As a result of having negligently released the brakes on the American Highway truck, and because the American Highway Truck was on a slope (declining back toward plaintiff’s vehicle directly behind it), this action of _____ releasing his brakes caused the American Highway Truck to roll backwards several feet until it suddenly,
    unexpectedly and violently slammed into Plaintiff’s truck, pinning Plaintiff (who had been standing in between both trucks) in between both trucks. ____failed to notice that his truck had rolled backward and then suddenly stopped, and remained sitting in his cab, working on paperwork for American Highway, or otherwise preparing for his further journey on American Highway’s behalf, unaware of what he had done.
  10. Plaintiff’’s legs were crushed by the enormous force caused when the rear ICC bar (i.e., the metal bar affixed to the bottom and rear of the trailer of the American Highway Truck) of the American Highway Truck collided with the front grill guard on Plaintiff’s Kenworth dump truck with Plaintiff’s legs caught in between both trucks.  This action smashed the femurs in both of Plaintiff’s legs instantly, where he remained pinned for nearly a half minute until a third party made ____aware of
    what was happening and _____finally drove the American Highway Truck forward, releasing Plaintiff’s legs from this position, and causing plaintiff’s body to fall to the ground.
  11. Plaintiff suffered serious and permanent bodily injuries in this accident.
  12. Deposition testimony regarding the horrific nature of plaintiff’s injuries has been obtained.  One witness testified that plaintiff’s legs
    were entirely smashed between the trucks, and that all he could see was the metal of the bumpers, with huge bulges where Plaintiff’s thighs should have been extruding grotesquely above the two bumpers. This witness also testified that all he could see was steel-on-steel where the truck bumpers were in contact with each other.  When
    plaintiff fell to the ground, his legs were left at unnatural angles away from his body, causing the truck driver (also deposed in this case) to question whether plaintiff might never walk again.
    The witness who was with plaintiff actually vomited from the sight of
    plaintiff’s body.
  13. Given the need for emergency medical attention in a far higher level medical facility, arrangements were initially made for plaintiff to be life-flighted by a medical jet to ____.  However, due to freezing temperatures and ice storms on January 24, 2013, the ____ airport had been shut down.  As a result, consideration was given to
    flying plaintiff to , _____  About an hour
    after plaintiff’s arrival at the  Hospital, Intermountain Life Flight No. ____ was dispatched, at 9:16 a.m., to, where the plane arrived at approximately 11:26 a.m., and departed with plaintiff on board at 12:17 pm for the flight to Las Vegas, Nevada.  Plaintiff arrived at the hospital in Las Vegas, Nevada,  approximately an hour and a half later at 1:57
    p.m.  Remember that the incident occurred at 8:07 am that morning.
  14. Upon admission to the Regional Medical Center in , and in spite of the prior treatment by paramedics and others at the  hospital facility, orthopedic surgeon Randy ____, M.D.’s initial record observed that Plaintiff’s thighs were “grossly shortened”, and that outside radiographs (i.e., ) of the “bilateral femurs demonstrate midshaft and distal third
    fractures of the left and right femur respectively”.  His recommendation was “urgent fixation of the femur fractures with retrograde intramedullary nails.”  Plaintiff was then moved into emergency
    surgery, which took nearly four hours to complete.
  15. In sum, the foregoing procedure required that the knees of both legs be manipulated so that long (14.173 inches) retrograde (from the knee heading into the femur) intramedullary titanium nails could be permanently hammered into his femurs in order to straighten the bones
    and secure them in place for healing.
    These “nails” or rods are installed after the bone is reamed out in
    order to allow their insertion, with screws drilled through the knee joint and the hip, in order to hold these rods in place.
    Plaintiff’s life was substantially disrupted by a hospitalization,
    inpatient rehabilitation, and later, discharge home to numerous specialist appointments.  He was also required to
    take serious, narcotic painkillers throughout this period.
  16. Plaintiff continued to suffer immensely after
    the accident, initial surgery and hospitalization.  We have hundreds of pages of medical records related to his treatment.  Plaintiff has
    suffered not only physically, but emotionally as well, as proven out by the medical records of his mental health counselor.
    All of these records will be provided to you in due course, together
    with expert witness reports that are currently being prepared in connection with the underlying litigation.
  17. By mid- to late-2013, it was the view of
    plaintiff’s orthopedic surgeon, Dr. ____, M.D. that Plaintiff would
    need bilateral femoral rod removal and screw fixation removal as
    soon as the following December (of 2013) (a procedure to remove all of the titanium hardware in his legs – which is essentially the exact same procedure required to insert those devices, all performed in reverse, with a slide-hammer required to remove the rods from the legs).  Plaintiff in fact received this significant surgical procedure, removing the femoral rods as well as the screws holding them in place.
  18. Separately, plaintiff has also had arthroscopic surgery on both of his knees due to crepitation in his knees, a result of the accident and subsequent medical treatments.
  19. Plaintiff’s legs continue to be seriously injured.  His treating orthopedic
    surgeon, Dr. , M.D., has already
    opined that he believes plaintiff’s knees will need to be replaced at an early age, likely within the next 5-10 years, with a subsequent dual knee replacement likely required thereafter, due to Plaintiff’s relatively young age and the life expectancy of replacement knee joints.
    At this time, plaintiff remains in pain on a daily basis and continues
    to suffer from the daily effects of the injuries that resulted from this
    accident.  In fact, he was back in Dr.
    Sorensen’s office recently complaining of knee pain for which he was prescribed an anti-inflammatory, as there is nothing surgically that Dr. Sorensen can do at this time to alleviate that pain, short of knee replacement.
  20. Plaintiffs currently estimate the future care needs of Plaintiff over the course of his life expectancy to be in the
    range of $______ While certain adjustments may need to be
    made to some of these numbers to discount them to present-day values, these estimates conclusively illustrate that Plaintiff has suffered and will continue to suffer medical damages in the range of hundreds of thousands of dollars, in
    addition to the $____ in past medical bills already incurred.
  21. As a result of the accident with the third-party driver, Plaintiffs settled a related claim with American Highway’s
    and ____’s insurance carrier for policy limits.
  22. Prior to the accident, Plaintiffs purchased an automobile insurance policy (the “Policy”) from Defendant Nationwide Insurance in Nevada which provided uninsured/underinsured motorist insurance to Plaintiffs.
  23. Following the accident with the third-party driver and truck company, Plaintiffs demanded an uninsured/underinsured (UIM) policy limit payment from Defendant.
  24. Defendant refused to make adequate payment to Plaintiffs as was required under the UIM Insurance Policy.
  25. Defendant’s refusal to make adequate payment to Plaintiffs was made without a reasonable basis in fact or law.
  26. Defendant’s refusal to make adequate payment to Plaintiffs was made in bad faith and for the purpose of denying the benefits of contract for underinsured motorist coverage to Plaintiffs.
  27. Defendant’s refusal to make adequate payment to Plaintiffs was an unlawful attempt to force Plaintiffs to accept
    less money than the amount due under the Policy.
  28. Defendant Nationwide owed Plaintiffs the
    following duties, among others:  (a) a
    duty to honor the UIM insurance contract for the entire policy duration; (b) a duty to conduct a prompt, reasonable and diligent investigation of the facts of the case to determine the validity of the claims made by Plaintiffs against Defendant Nationwide; (c) a duty to evaluate the Plaintiffs’ claims fairly; (d) a duty to attempt in good faith to effectuate a prompt, fair and equitable settlement of a claim where liability is reasonable clear; (e) a duty to act promptly and reasonably in settling the claim; (f) a duty not to reject a reasonable and fair offer of settlement; (g) a duty not to put its insureds
    through unnecessary litigation; (h) a duty not to put its insureds’ assets at risk; (i) a duty to refrain from actions that would injure the Plaintiffs’
    insured ability to obtain the benefits of the insurance contract; and (j) a
    duty of good faith and fair dealing.
  29. Upon information and belief, the Plaintiffs allege that Defendant Nationwide breached its duties owed to Plaintiffs by, among other things:  (a) failing to honor the UIM insurance contract; (b) failing to conduct a prompt,  reasonable and diligent investigation of the claims made against Nationwide Insurance; (c) failing to evaluate the claim fairly; (d) failing to tender the
    claims; (e) failing to attempt in good faith to effectuate a prompt, fair and equitable settlement of the claim; (f) not making any reasonable settlement offers to offer the claims; (g) failing to accept  reasonable and fair offers of settlement; (h) putting its insureds, Plaintiffs herein, through unnecessary litigation; (i) putting its insureds’ personal assets at risk; and (j) failing to pay any reasonable portion of the insurance coverage to Plaintiffs herein.
  30. As a direct and approximate result of Nationwide’s breaches of its duties that it owed to its insureds, the
    Plaintiffs herein, Plaintiffs have been deprived of the benefits to which they were entitled and for which they bargained in the insurance contract, and were forced to incur expenses to obtain the benefits to which they were otherwise entitled and Plaintiffs have otherwise been damaged in amounts to be determined at trial.
  31. Defendant’s actions herein constitute bad faith insurance practices.
  32. The Court should enter a declaratory
    judgment, that Defendant must pay its policy limits to Plaintiffs herein, in order to satisfy the damages sustained by Plaintiffs in the underlying
    accident.
  33. Plaintiffs have been required to engage the services of attorneys, and, accordingly, have incurred attorneys’ fees and costs to bring this action.

FIRST CAUSE OF ACTION

(Breach of Contract)

  1. Plaintiffs repeat and reallege the allegations
    contained in the preceding paragraphs of this Complaint as though said
    paragraphs were fully set forth herein.
  2. There is a valid and existing insurance
    agreement between Plaintiffs and Defendant.
  3. Plaintiffs performed or were excused from
    performance under the agreement.
  4. Defendant breached the agreement by, inter
    alia,
    refusing to properly compensate Plaintiffs.
  5. Plaintiffs sustained damages in excess of
    the UIM policy limits as a result of Defendant’s breach of the agreement.
  6. Plaintiffs have been required to retain
    the services of an attorney to commence this action and are entitled to
    attorney’s fees and costs.

SECOND CAUSE OF ACTION

(Contractual Breach of the Implied Covenant
of Good Faith and Fair Dealing)

  1. Plaintiffs repeat and reallege the
    allegations contained in the preceding paragraphs of this Complaint as though said paragraphs were fully set forth herein.
  2. There is implied in every contract a covenant of good faith and fair dealing.
  3. Plaintiffs and Defendant entered into a valid and existing insurance agreement.
  4. Defendant owed Plaintiffs a duty of good
    faith and fair dealing.
  5. Defendant breached its duty of good faith
    and fair dealing by, inter alia, refusing to properly compensate
    Plaintiffs.
  6. Plaintiffs sustained damages in excess of
    the UIM policy limits as a result of Defendant’s breach of the implied covenant
    of good faith and fair dealing.
  7. Plaintiffs have been required to retain
    the services of an attorney to commence this action and are entitled to
    attorney’s fees and costs.

THIRD CAUSE OF ACTION

(Tortious Breach of the Implied Covenant of
Good Faith and Fair Dealing)

  1. Plaintiffs repeat and reallege the
    allegations contained in the preceding paragraphs of this Complaint as though
    said paragraphs were fully set forth herein.
  2. There implied in every contract a
    covenant of good faith and fair dealing.
  3. Plaintiffs and Defendant entered into a
    valid and existing insurance agreement which included a UIM endorsement.
  4. Defendant owed Plaintiffs a duty of good
    faith and fair dealing.
  5. As an insurer, Defendant owed Plaintiffs
    a fiduciary-like duty and there was a special element of reliance by
    Plaintiffs.
  6. Defendant breached its duty of good faith
    and fair dealing by, inter alia, refusing
    to properly compensate Plaintiffs for their injuries sustained in the
    underlying accident caused by American Highway and ______.
  7. Plaintiffs sustained damages in excess of
    the UIM policy limits as a result of Defendant’s breach of the implied covenant
    of good faith and fair dealing.
  8. Plaintiffs are further entitled to
    punitive damages as a result of Defendant’s breach of the implied covenant of
    good faith and fair dealing.
  9. Plaintiffs have been required to retain
    the services of an attorney to commence this action and are entitled to
    attorney’s fees and costs.

FOURTH CAUSE OF ACTION

(Bad Faith)

  1. Plaintiffs repeat and reallege the
    allegations contained in the preceding paragraphs of this Complaint as though
    said paragraphs were fully set forth herein.
  2. The acts and omissions of Defendant as
    complained of herein, and yet to be discovered in this matter, constitute bad faith.
  3. Plaintiffs sustained damages in excess of
    the UIM policy limits as a result of Defendant’s bad-faith.
  4. Plaintiffs are further entitled to
    punitive damages as a result of Defendant’s bad-faith.
  5. Plaintiffs have been required to retain
    the services of an attorney to commence this action and are entitled to
    attorney’s fees and costs.

 

FIFTH CAUSE OF ACTION

(Unfair Trade Practices)

  1. Plaintiffs repeat and reallege the
    allegations contained in the preceding paragraphs of this Complaint as though said paragraphs were fully set forth herein.
  2. Defendant has engaged in unfair trade
    practices, including Defendant’s failure to properly settle Plaintiffs’ claim.
  3. Plaintiffs sustained damages in excess of
    the UIM policy limits as a result of Defendant’s unfair trade practices.
  4. Plaintiffs are further entitled to
    punitive damages as a result of Defendant’s unfair trade practice.
  5. Plaintiffs have been required to retain
    the services of an attorney to commence this action and are entitled to
    attorney’s fees and costs.

WHEREFORE, Plaintiffs pray for judgment against the above-named Defendants and each of them, jointly and severally, as follows:

  1. For general damages in an amount in excess of
    the UIM policy limits;
  2. For special damages in an amount in excess of
    the UIM policy limits;
  3. For punitive damages in an amount to be
    determined at trial;
  4. For reasonable attorney’s fees and costs of
    suit;
  5. For interest at the statutory rate; and

For such other and further relief as the Court deems just and proper.

 

DATED this ____ day of March, 2015.

 

ALBRIGHT STODDARD WARNICK &
ALBRIGHT

 

 

 

Attorneys for Plaintiffs

702-384-7111

gma@albrightstoddard.com

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on construction, real estate, finance and insurance litigation.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.  Call 702-384-7111 or email Mark Albright at gma@albrightstoddard.com.

 

 

 

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.