Heid v. Ta Operating, LLC

• Decision Date: 08 November 2016
• Docket Number: No. 68894,68894
• Parties: BARBARA HEID, AN INDIVIDUAL, Appellant, v. TA OPERATING, LLC, Respondent.
• Court: Nevada Court of Appeals

BARBARA HEID, AN INDIVIDUAL, Appellant, v. TA OPERATING, LLC, Respondent.

No. 68894

COURT OF APPEALS OF THE STATE OF NEVADA

November 8, 2016

ORDER OF AFFIRMANCE

This is an appeal from an order granting summary judgment and an order denying a motion to amend. Eighth Judicial District Court, Clark County; Nancy L. Allf, Judge.

TA Operating ("TA") entered into a sublease agreement in which TA sublet its premises to Northpointe Sierra ("Northpointe") for a casino within TA's truck stop and restaurant. In 2011, appellant Barbara Heid, a Northpointe employee, tripped over a metal plate covering an electrical junction box built into the casino floor. Heid received workers' compensation benefits through her employer, Northpointe, and also sued TA to recover for her injuries. TA moved for summary judgment, which the district court granted after concluding TA was not responsible for maintaining the metal plate.¹ Heid moved for reconsideration and to amend her complaint to add Northpointe as a defendant.² The district court denied the motion.

On appeal, Heid contends the district court erred in granting summary judgment and denying Heid's motion to amend her complaint. Specifically, she argues, first, a genuine issue of material fact remains regarding TA's duty to maintain the casino premises and, second, she should have been allowed to bring suit against Northpointe under the dual capacity doctrine. We disagree.³

We review a district court's order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005); see also Costello v. Casler, 127 Nev. 436, 439, 254 P.3d 631, 634 (2011). Summary judgment is proper when the pleadings and all other evidence on file demonstrate that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Wood, 121 Nev. at 729, 121 P.3d at 1029. When deciding a summary judgment motion, we view all evidence in the light most favorable to the nonmoving party. Id. General allegations and conclusory statements do not create genuine issues of fact. Id. at 731, 121 P.3d at 1030-31.

Interpreting an unambiguous contract is generally a question of law. Galardi v. Naples Polaris, LLC, 129 Nev. 306, 309, 301 P.3d 364, 366 (2013). Summary judgment is improper if the court must use extrinsic evidence to determine the meaning of an ambiguous term within the contract. Dickenson v. State, Dep't of Wildlife, 110 Nev. 934, 937, 877 P.2d 1059, 1061 (1994).

The sublease agreement's terms unambiguously reflect TA is not liable for injuries to third parties on the casino premises. The contractclearly states Northpointe leased the premises "as is" and acknowledged TA would not be liable for any defects therein. Heid's own evidence shows the metal plate was never flush with the floor and Northpointe was aware of the defect when it began occupying the premises pursuant to the sublease agreement. In fact, deposition testimony established that Northpointe employees were aware of this tripping hazard and took affirmative steps to keep people from tripping over the plate, including putting a gaming table over it.

Further, the sublease unambiguously states that Northpointe will "protect, indemnify, and hold harmless [TA] for, from and against all liabilities . . . asserted against [TA] by reason of . . . any accident or injury to, or death of, persons or loss or damage to property occurring on or about the Premises."⁴ As a result, pursuant to the unambiguous terms of the sublease agreement, TA is not liable to third parties, such as Heid, who are injured in a trip and fall on Northpointe's casino premises.⁵ Wetherefore conclude the district court did not err in granting summary judgment in favor of TA.⁶

We next consider whether the district court abused its discretion in denying Heid's motion to amend her complaint. We review the denial of leave to amend for an abuse of discretion. Holcomb Condo. Homeowners' Ass'n, Inc. v. Stewart Venture, LLC, 129 Nev. 181, 191, 300 P.3d 124, 130-31 (2013). Under NRCP 15(a), leave to amend a complaint shall be "freely given when justice so requires." But, the court should not give leave to amend where the moving party wishes to plead an impermissible claim. Halcrow, Inc. v. Eighth Judicial Dist. Court, 129 Nev. 394, 398, 302 P.3d 1148, 1152 (2013); see also Nutton v. Sunset Station, Inc., 131 Nev. ___, 357 P.3d 966 (Ct. App. 2015) (providing that the district court need not allow facially futile amendments).

Heid argues that, despite receiving workers' compensation benefits, she should be allowed to bring suit against Northpointe. Under the Nevada Industrial Insurance Act, an employee who receives workers' compensation benefits may not thereafter recover additional damages from an employer who provides workers' compensation benefits. NRS 616A.020; Oliver v. Barrick Goldstrike Mines, 111 Nev. 1338, 1342, 905 P.2d 168, 171 (1995). Heid asserts she may nevertheless recover against Northpointe under the dual capacity doctrine, which allows an employee to sue an employer who occupies "a second capacity that confers on him obligations independent of those imposed on him as employer." Noland v. Westinghouse Elec. Corp., 97 Nev. 268, 269 n.1, 628 P.2d 1123, 1124 n.1 (1981).

The Nevada Supreme Court has not adopted the dual capacity doctrine. Because Heid does not advance any cogent argument explaining why this court should adopt this rule, we decline to do so here. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (noting that we need not consider claims that are not cogently argued). In light of this decision, we conclude the district court did not abuse its discretion by denying Heid's motion to amend her complaint. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

/s/_________, C.J.

Gibbons

/s/_________, J.

Silver

TAO, J., concurring in part and dissenting in part:

I agree with my colleagues that the district court did not abuse its discretion in denying Heid's motion to amend her complaint, because the Nevada Supreme Court has expressly rejected the "dual capacity" doctrine. See Harris v. Rio Hotel & Casino, Inc., 117 Nev. 482, 491, 25 P.3d 206, 212 (2001); Watson v. G.C. Associates Limited Partnership, 100 Nev. 586, 588, 691 P.2d 417, 418 (1984).

But I respectfully dissent from the affirmance of summary judgment against Heid. The majority resolves that issue based upon the language of a contractual indemnity clause, but this isn't a contract case,and Heid isn't even a party to the contract between TA and Northpointe. This is a slip-and-fall tort case, and in a tort case a defendant's duties arise as a matter of law, not by way of contract, and no private contract can change what every "reasonable person" is required to do at all times by operation of law.

I.

TA argues that Northpointe contractually agreed to indemnify TA for its negligence, and the majority disposes of this appeal based solely upon this argument. But TA's argument is both untrue and legally irrelevant.

The lease actually says, quite explicitly, that Northpointe does NOT indemnify TA for negligence (in a passage that the majority oddly replaces with ellipses):

protect, indemnify, and hold harmless [TA] for, from and against all liabilities . . . asserted against [TA] by reason of the following, except to the extent caused by LESSOR'S negligence or misconduct: (1) any accident or injury to, or death of, persons or loss or damage to property occurring on or about the Premises . . . .

(emphasis added).

In other words, the lease provides that Northpointe indemnifies TA for various kinds of liability except for liability from its negligence—which means that in a negligence case like this one, there is no duty to indemnify. So TA's argument is simply and utterly wrong.

Even if it weren't wrong, TA's argument is wholly beside the point. Contracts are enforceable only between the parties to the contract (except in cases involving third-party beneficiaries, which Heid expressly argues that she is not). Contractual clauses cannot be asserted asdefenses to tort claims brought by non-parties who never signed the contract, and Heid isn't a party to this lease.

Thus, even if the lease said the exact opposite of what it says—that Northpointe actually indemnifies TA for negligence to non-parties—that wouldn't mean that TA is immune from being sued by those non-parties for its own negligence. Rather, it only means that, if and when sued by one, TA can assert its right against Northpointe under the contract it signed with Northpointe to bring Northpointe into the action to help its defense and spread any liability around. See Reid v. Royal Ins. Co., 80 Nev. 137, 140-41, 390 P.2d 45, 47 (1964) ("A defendant is permitted to defend the case and at the same time assert his right of indemnity against the party ultimately responsible for the damage. The application of indemnity (when proper) shifts the burden of the entire loss from the defendant tort-feasor to another who should bear it instead.").

With a mere indemnity provision (this isn't even that, but assuming that it is)—as opposed to, say, a subrogation provision with a "duty to defend" clause—Northpointe wouldn't even participate in the defense of the case but would only help pay any judgment; TA would have to pursue its contractual indemnity rights against Northpointe on its own either separately or by adding Northpointe as a third party. But either way, that relationship exists between TA and Northpointe; it's not a shield to use against Heid or any other plaintiff who never signed the lease and has no contractual relationship ("privity") with either Northpointe or TA.

Thus, TA's contractual indemnity argument is nothing but a red herring swallowed hook, line, and sinker. The only issue here is whether a rational jury could find that TA's negligence—tested under the "reasonable person" standard of tort law, not contract law—proximately...