Stephen Hansen v. Liberty Mutual Fire Ins , 589 F. App'x 392 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 21 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN TANNER HANSEN; et al., No. 12-17362
Plaintiffs - Appellants, D.C. No. 2:11-cv-01519-GMN-
CWH
v.
LIBERTY MUTUAL FIRE INSURANCE MEMORANDUM*
COMPANY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Submitted January 15, 2015**
San Francisco, California
Before: O’SCANNLAIN and CLIFTON, Circuit Judges, and ADELMAN, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
Stephen Hansen and Clark Lefevre appeal from the district court’s grant of
summary judgment in favor of Liberty Mutual Fire Insurance Company (“Liberty
Mutual”) on their claims of breach of contract, bad faith, and violations of the
Nevada Unfair Claims Practices Act, Nev. Rev. Stat. § 686A.310, as well as the
district court’s denial of their motion for reconsideration filed pursuant to Federal
Rules of Civil Procedure 59(e) and 60(b).
I
Under Nevada law, a homeowner’s insurance policy that provides coverage
for harm resulting from an “accident,” and excludes coverage for harm “expected
or intended by the ‘insured,’” does not require the insurer to provide coverage for
harm that results from intentional action on the part of the insured, even if the
insured did not intend to cause the resulting harm. See Beckwith v. State Farm
Fire & Cas. Co., 83 P.3d 275, 277 (Nev. 2004) (en banc). Here, the only
admissible evidence in the record indicates that Jeff Hart intended to throw a rock
at the Lefevre truck, harming both the truck and the passengers inside. Moreover,
because Liberty Mutual’s provision of coverage in the Quinn lawsuit involved no
intentional action on the part of Jeff Hart, such provision of coverage does not
constitute a waiver of Liberty Mutual’s right to rely on the policy’s requirement
that covered harm result from an accident, not intentional action by the insured.
2
See Vitale v. Jefferson Ins. Co. of New York, 5 P.3d 1054, 1058–59 (Nev. 2000)
(per curiam) (endorsing the Ninth Circuit’s interpretation of California law as
requiring misconduct on the part of the insured in order to find waiver). Thus, the
district court did not err in granting summary judgment on Hansen and Lefevre’s
breach of contract and bad faith claims. See Pemberton v. Farmers Ins. Exch., 858
P.2d 380, 382 (Nev. 1993) (per curiam) (requiring improper denial of coverage for
a claimant to succeed on a bad faith claim).
II
Because Hansen and Lefevre’s request for a continuance and motion for
reconsideration both turned upon their mistaken belief that Liberty Mutual’s
provision of coverage in the Quinn case constituted a waiver of its right to deny
coverage in this case, the district court did not abuse its discretion in denying either
of those requests. See Mackey v. Pioneer Nat’l Bank, 867 F.2d 520, 523 (9th Cir.
1989); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985).
III
Because Hansen and Lefevre failed to identify any facts to dispute Liberty
Mutual’s accurate and diligent denial of coverage, the district court did not err in
granting summary judgment on their claims brought under the Nevada Unfair
Claims Practices Act.
3
AFFIRMED.
4