797 P.2d 978 (Nev. 1990), 20903, Mallin v. Farmers Ins. Exchange

Docket Nº:20903.
Citation:797 P.2d 978, 106 Nev. 606
Party Name:Jennifer B. MALLIN, Individually, and Jennifer B. Mallin and Roberta Grill, as the Guardians of Jessica B. Mallin, and Jennifer B. Mallin as Special Administratrix of the Estate of Virginia Mallin Egyed, Deceased; Edith Egyed, Executrix of the Estate of Alex Egyed, a/k/a Alexander Egyed, Deceased; Jeanne Di Fiore Cosgrove; John Di Fiore II; Jared E
Case Date:September 19, 1990
Court:Supreme Court of Nevada
 
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Page 978

797 P.2d 978 (Nev. 1990)

106 Nev. 606

Jennifer B. MALLIN, Individually, and Jennifer B. Mallin and

Roberta Grill, as the Guardians of Jessica B. Mallin, and

Jennifer B. Mallin as Special Administratrix of the Estate

of Virginia Mallin Egyed, Deceased; Edith Egyed, Executrix

of the Estate of Alex Egyed, a/k/a Alexander Egyed,

Deceased; Jeanne Di Fiore Cosgrove; John Di Fiore II;

Jared E. Shafer, Executor of the Estate of Elizabeth Barton

Di Fiore, a/k/a Betty Di Fiore, Deceased; Miles Levy;

Elise Kagasoff; and Jared Shafer, Administrator of the

Estate of Jack Levy, Deceased, Appellants,

v.

FARMERS INSURANCE EXCHANGE, A California Corporation, Respondent.

No. 20903.

Supreme Court of Nevada.

September 19, 1990.

Page 979

        Rogers, Moore & Mahone, Las Vegas, for appellant Jennifer mallin.

        Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for appellants Mallin.

        [106 Nev. 607] Morse & Mowbray, Las Vegas, for appellant Egyed.

        Gordon & Silver, Las Vegas, for appellants Di Fiore, et al.

        Thorndal, Backus, Maupin & Armstrong, Las Vegas, for respondent.

        OPINION

        PER CURIAM:

        This is an appeal from an order of the district court granting [106 Nev. 608] summary judgment. Appellants have moved to dismiss on the ground that the district court improperly certified the judgment as final pursuant to NRCP 54(b).

        On September 23, 1984, Alex Egyed killed his wife Virginia Mallin Egyed, Elizabeth Barton Di Fiore, Jack Levy, and himself. The estates and heirs of the three victims brought separate wrongful death

Page 980

actions against the estate of Alex Egyed. Two insurance policies potentially covered Egyed: a homeowner's policy from Farmers Insurance Exchange (Farmers) and an excess policy from Insurance Company of North America (INA). Both policies contain clauses which exclude coverage for intentional acts committed by the insured.

        Farmers defended the estate of Alex Egyed under a reservation of rights to deny coverage. On January 28, 1986, Farmers brought a declaratory relief action against appellants, seeking a declaration of non-coverage pursuant to the intentional acts and household exclusions under its policy. On November 10, 1986, the estate of Alex Egyed filed an action against INA seeking a declaration of coverage and damages for failure to provide a defense. The wrongful death actions, the Farmers action for declaratory relief and the estate's action against INA were pending simultaneously in different departments of the Eighth Judicial District Court.

        On August 18, 1988, the district court granted Farmers' motion for partial summary judgment based on the household exclusion clause of its policy. The district court then granted appellants' motion to consolidate the two coverage actions for all purposes. On November 9, 1989, the district court granted Farmers' motion for summary judgment based on the intentional acts exclusion clause of its policy. The district court later entered a judgment confirming its order which included an NRCP 54(b) certification. Appellants did not contest the certification in the lower court but filed notices of appeal between January 30, 1990, and February 2, 1990. Appellants have now moved to dismiss their own appeals, claiming that the NRCP 54(b) certification was improper. The district court granted INA's motion for a stay of the proceedings below pending this appeal.

        Although the parties have not raised the issue, we note that we have not yet determined whether an order of the district court disposing of one of two consolidated cases is a final, appealable judgment absent NRCP 54(b) certification. 1 If such an order is [106 Nev. 609] appealable without certification, appellants' motion to dismiss must be denied. As the Ninth Circuit stated, however, "[a]n appeal prior to...

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