Mallin v. Farmers Ins. Exchange

• Decision Date: 19 September 1990
• Docket Number: No. 20903,20903
• Citation: 797 P.2d 978,106 Nev. 606
• Parties: 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.
• Court: Nevada Supreme Court

Page 978

797 P.2d 978

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.

Sept. 19, 1990.

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 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 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 appealable without certification, appellants' motion to dismiss must be denied. As the Ninth Circuit stated, however, "[a]n appeal prior to the conclusion of the entire action could well frustrate the purpose for which the cases were originally consolidated. Not only could it complicate matters in the district court but it could also cause unnecessary duplication of efforts in the appellate court." Huene v. United States, 743 F.2d 703, 704 (9th Cir.1984); see also Trinity Broadcasting Corp. v. Eller, 827 F.2d 673 (10th Cir.1987), cert. denied, 487 U.S. 1223, 108 S.Ct. 2883, 101 L.Ed.2d 918 (1988); State v. District Court of Second Judicial Dist., 387 P.2d 550 (Wyo.1963). The district court is clearly in the best position to determine whether allowing an appeal would frustrate the purpose for which the cases were consolidated. We hold, therefore, when cases are consolidated by the district court, they become one case for all appellate purposes. Thus, an order which resolves less than all of the claims in a consolidated action is not appealable as a final judgment absent NRCP 54(b) certification from the district court.

In their motions to dismiss, appellants first contend that the district court's determination that there was no just reason for delaying the appeal from the Farmers judgment was "insufficient." Appellants argue that the district court should be required to make findings of fact in regard to specific factors in order to determine whether there is just reason for delay. See Jackson v. Burlington Northern, Inc., 201 Mont. 123, 652 P.2d 223 (1982); Roy v. Neibauer, 188 Mont. 81, 610 P.2d 1185 (1980); Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (3rd Cir.1975); Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275 (2nd Cir.1968). Because the district court failed to state any factors supporting its decision that there was no just reason for delay in certifying the Farmers judgment as final, appellants urge this court to strike the certification.

Under NRCP 54(b), the district court is required only to make "an express determination that there is no just reason for delay" and "an express direction for the entry of judgment." The district court met those requirements and we are unconvinced that we should adopt any further requirements.

Although NRCP 54(b) clearly contemplates certification of a judgment resolving a claim or removing a party, previous decisions of this court have addressed the meaning of "no just reason for delay" only in "claims" cases, i.e., cases in which certification is based on the resolution of fewer than all the claims in a case. See, e.g., Hallicrafters Co. v. Moore, 102 Nev. 526, 728 P.2d 441 (1986); Mid-Century Ins. Co. v. Cherubini, 95 Nev. 293, 593 P.2d 1068 (1979); Las Vegas Hacienda v. G.L.M.M. Corp., ...