Leif Hansen v. Geico ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEIF HANSEN, on behalf of himself and all No. 18-35383
others similarly situated,
D.C. No. 3:17-cv-01986-MO
Plaintiff-Appellant,
v. MEMORANDUM*
GOVERNMENT EMPLOYEES
INSURANCE COMPANY, a Maryland
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted May 13, 2019
Portland, Oregon
Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.
Appellant Leif Hansen appeals the district court’s dismissal of his claims for
breach of contract and breach of the implied covenant of good faith and fair
dealing against his car insurer, Government Employees Insurance Company
(“GEICO”). Hansen argues that GEICO was required to pay for electronic
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
diagnostic scans to ensure that there was no latent damage to his truck after a
collision caused damage to his rear bumper. We review the district court’s grant of
GEICO’s motion to dismiss de novo. Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1030 (9th Cir. 2008). We reverse and remand.
1. We reverse the district court’s dismissal with prejudice of Hansen’s
breach of contract claim and remand. Under Oregon law, to “state a claim for
breach of contract, [a] plaintiff must allege the existence of a contract, its relevant
terms, plaintiff’s full performance and lack of breach and defendant’s breach
resulting in damage to plaintiff.” Slover v. Or. State Bd. of Clinical Soc. Workers,
927 P.2d 1098, 1101 (Or. Ct. App. 1996) (internal quotation marks omitted).
First, we find Hansen has not sufficiently pled that GEICO breached the
terms of the policy. Hansen’s complaint alleges that Hansen’s policy covers
“collision loss,” defined as “direct and accidental loss of or damage to . . . an
insured auto, including its equipment.” Hansen alleges this contractual language
creates a duty to pay for necessary pre-and post-repair diagnostic tests (which cost
about $100 each). Under the policy, however, GEICO’s liability is limited to
paying costs of the “loss of” or “damage to” the vehicle, as measured by the cost of
repair. To be sure, a diagnostic scan might be covered if it is part of the process of
“restor[ing] plaintiff’s vehicle to its preloss physical condition.” Gonzales v.
Farmers Ins. Co. of Or., 196 P.3d 1, 7 (Or. 2008) (defining “repair” under Oregon
2
law). However, Hansen has not made the necessary allegations that GEICO
breached its obligation to pay under the policy.
Second, we find that Hansen has not properly pled damages. “Damage is an
essential element of any breach of contract action.” Moini v. Hewes, 763 P.2d 414,
417 (Or. Ct. App. 1988). Here, Hansen only alleged his truck is “at risk for having
undetected repairs and being unsafe to drive.” Hansen has not alleged any
indication, either from the car’s internal mechanism or a body shop mechanic’s
recommendation, that the diagnostic scan would reveal further damage to the car
resulting from the collision. In other words, Hansen has not identified anything
broken that needs to be repaired. Nor has Hansen alleged that he paid for the scans
himself.
As a result of these two deficiencies, the district court did not err in
dismissing the breach of contract claim based on the current pleadings. However,
we have made clear that district courts commit reversible error by dismissing a suit
without any chance to amend, even if no request has been made, unless the district
court determines additional facts could not possibly cure the deficiency. Hoang v.
Bank of Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018). Accordingly, the district
court erred in dismissing the breach of contract claim with prejudice and we
remand to allow Hansen to amend.
3
2. We reverse the district court’s dismissal of Hansen’s claim for breach
of the implied covenant of good faith and fair dealing. “A party may violate its
duty of good faith and fair dealing without also breaching the express provisions of
a contract.” Klamath Off-Project Water Users, Inc. v. Pacificorp, 240 P.3d 94, 101
(Or. Ct. App. 2010) (internal quotation marks omitted). “[T]he dispositive
question in this case is whether it is appropriate to imply a duty . . . in order to
effectuate the parties’ objectively reasonable expectations regarding the . . .
agreement.” Id.
The district court erred, because the contract does not expressly state how
the parties must determine the loss to the vehicle. Hansen has sufficiently pled that
the industry standards and practices—here, the manufacturer’s recommendation
that diagnostic scans be run every time the particular truck model at issue is
involved in a collision—effectuated a potentially reasonable contractual
expectation that GEICO would cover the cost of diagnostic scans in these
circumstances. Nor do the exclusions on liability make it unreasonable to expect
that the cost of a diagnostic scan, when necessary for repair, would be included in
the cost of a repair. In fact, GEICO conceded that in some cases, it will reimburse
for the cost of performing diagnostic tests. See Best v. U.S. Nat’l Bank of Or., 739
P.2d 554, 558–59 (Or. 1987) (determining whether bank exercised its discretion in
4
accordance with reasonable expectations of the parties is a question of fact
precluding summary judgment).
REVERSED and REMANDED.
5