                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 7 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ANDREW CORDOVA,                                 No.   16-15490

                Plaintiff-Appellant,            D.C. No.
                                                2:13-cv-01111-KJD-VCF
 v.

AMERICAN FAMILY MUTUAL                          MEMORANDUM*
INSURANCE COMPANY,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                     Argued and Submitted October 20, 2017
                           San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and GWIN,** District Judge.

      After being involved in an automobile accident with an underinsured driver,

Andrew Cordova sought to recover from his insurer, American Family Mutual

Insurance Company, under an underinsured motorist (UIM) provision.              After



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
American Family rejected his claim, Cordova filed this action alleging breach of

contract, breach of fiduciary duty, breach of the implied covenant of good faith and

fair dealing, and violations of the Nevada Unfair Claims Settlement Practices Act,

Nev. Rev. Stat. § 686A.310. The district court dismissed Cordova’s claim for breach

of fiduciary duty and granted American Family’s motion for summary judgment on

all other claims except breach of contract. After a jury awarded Cordova $351,550

on the contract claim, the district court reduced the award to $100,000, the limits of

the policy’s UIM coverage. We affirm in part, reverse in part, and remand with

instructions.

      1. The district court erred in deducting $226,550 from the jury’s damage

award.1 Nevada law follows the Restatement (Second) of Contracts § 347, which

provides that the prevailing party in a contract action can recover expectancy

damages. See Rd. & Highway Builders, LLC v. N. Nev. Rebar, 284 P.3d 377, 382

(Nev. 2012). Under the Restatement, expectancy damages include “any . . . loss,

including incidental or consequential loss, caused by the breach.” Restatement

(Second) of Contracts § 347 (Am. Law Inst. 1981). Consequential damages are

those that “may fairly and reasonably be considered as arising naturally” from the

breach. Hornwood v. Smith’s Food King No. 1, 772 P.2d 1284, 1286 (Nev. 1989)


1
       The parties agreed to an offset of $25,000, the amount Cordova previously
recovered from the tortfeasor and American Family under a medical costs provision
of the policy.

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(per curiam) (quoting Conner v. S. Nev. Paving, 741 P.2d 800, 801 (Nev. 1987)).

The jury could reasonably have found that Cordova’s lost wages and pain and

suffering arose naturally from the denial of his claim. Cordova testified that he

would have received the necessary medical treatment “immediately” and returned to

work had American Family paid his claim when originally requested.2

      2. The district court did not err in entering summary judgment for American

Family on Cordova’s prayer for punitive damages. Punitive damages are not

available in contract actions. See Nev. Rev. Stat. § 42.005(1); S.J. Amoroso Constr.

Co. v. Lazovich & Lazovich, 810 P.2d 775, 777–78 (Nev. 1991). Even assuming

arguendo that Cordova had a viable bad faith or statutory claim, that alone does not

establish entitlement to punitive damages. United Fire Ins. Co. v. McClelland, 780

P.2d 193, 198 (Nev. 1989) (per curiam). A plaintiff seeking punitive damages must

also provide substantial evidence of “oppression, fraud or malice, express or

implied.” Nev. Rev. Stat. § 42.005(1); see Wickliffe v. Fletcher Jones of Las Vegas,

Inc., 661 P.2d 1295, 1297 (Nev. 1983) (per curiam), superseded by statute on other



2
       Although the Nevada Supreme Court has not yet addressed the issue, other
state courts have found consequential damages awarded for breach of contract can
exceed insurance policy limits. See, e.g., Reichert v. Gen. Ins. Co. of Am., 428 P. 2d
860, 864–67 (Cal. 1967) (en banc), vacated on other grounds on reh’g, 442 P.2d 377
(Cal. 1968) (en banc); Rockford Mut. Ins. Co. v. Pirtle, 911 N.E.2d 60, 67–68 (Ind.
Ct. App. 2009); Ind. Ins. Co. v. Plummer Power Mower & Tool Rental, Inc., 590
N.E.2d 1085, 1089–92 (Ind. Ct. App. 1992); Lawton v. Great Sw. Fire Ins. Co., 392
A.2d 576, 611 (N.H. 1978).

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grounds as stated in Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243,

253–54 & n.39 (Nev. 2008). Cordova did not provide evidence giving rise to a

genuine issue of material fact whether American Family “undertook an intentional

course of conduct designed to ensure the denial of [his] claim.” See Powers v. United

Servs. Auto. Ass’n, 962 P.2d 596, 604–05 (Nev. 1998), opinion modified on denial

of reh’g, 979 P.2d 1286 (Nev. 1999).

      3. Other than punitive damages, Cordova’s bad faith and unfair practices

claims sought precisely the same relief as his contract claim. Because we hold today

that the original jury award should be reinstated (less agreed-upon offsets), we need

not decide whether the district court erred in granting summary judgment on the bad

faith and statutory claims.

      We therefore AFFIRM the district court’s order entering summary judgment

for American Family on Cordova’s prayer for punitive damages and REVERSE the

district court’s judgment on the contract claim, with instructions to enter judgment

in favor of Cordova in the amount of $326,550 on his breach of contract claim.




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