Roderick Herbert v. State Farm Mutual Automobile I , 362 F. App'x 748 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 20 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RODERICK HERBERT, No. 08-15757
Plaintiff - Appellant, D.C. No. 4:06-CV-05532-SBA
v.
MEMORANDUM *
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted January 15, 2010**
San Francisco, California
Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.
In February 2002, Roderick Herbert purchased an insurance policy from
State Farm Mutual Automobile Insurance Company (“State Farm”) for his Harley
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Davidson Road King motorcycle. Roughly three years later, Herbert reported that
his motorcycle had been stolen and filed a claim with State Farm, prompting the
insurer to investigate the circumstances of the theft. State Farm ultimately denied
Herbert’s claim, concluding that he violated his policy’s “fraud or concealment”
clause by making several misrepresentations during the investigation. These
included Herbert’s suggestion that his criminal history was limited to juvenile
arrests or convictions, though he had actually served time in state prison for
multiple counts of motor vehicle theft.
After State Farm denied his claim, Herbert filed suit in California state court
for breach of contract and breach of the implied covenant of good faith and fair
dealing. State Farm removed the case to federal court, asserting diversity
jurisdiction, and moved for summary judgment. The district court granted the
motion, and Herbert appealed. We affirm.
We review a district court’s grant of summary judgment de novo. United
Nat’l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 776 (9th Cir. 2009).
Under California law, an insurer may defend against a breach of contract claim by
demonstrating that the insurance policy is void under a fraud or concealment
clause. Cummings v. Fire Ins. Exch., 249 Cal. Rptr. 568, 574 (Ct. App. 1988). A
fraud or concealment clause voids a policy if a material misrepresentation is
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“knowingly and willfully made, with intent to deceive the insurer.” Id. at 572
(quoting Claflin v. Commonwealth Ins. Co., 110 U.S. 81, 95 (1884)).
Materiality “is a mixed question of law and fact that can be decided as a
matter of law if reasonable minds could not disagree on the materiality of the
misrepresentations.” Id. at 573. Under Herbert’s policy, State Farm was only
obligated to pay for “accidental” losses, not thefts that may have been occasioned
by the insured. Consequently, any reasonable jury would conclude that Herbert’s
conviction of three counts of motor vehicle theft was reasonably relevant to State
Farm’s investigation. See id. (instructing that “materiality is determined by its
prospective reasonable relevance to the insurer’s inquiry”).
Although an insured’s mental state is a question of fact, “the intent to
defraud the insurer is necessarily implied when the misrepresentation is material
and the insured wilfully makes it with knowledge of its falsity.” Id. at 574.
Herbert’s declaration is devoid of specific facts to innocently explain or clarify his
misrepresentations regarding his criminal history. When pressed by the district
court at oral argument, Herbert’s counsel conceded that these misrepresentations
were deliberate. Under these circumstances, Herbert failed to create a genuine
issue of material fact as to whether he deliberately misrepresented his criminal
history, and the district court was permitted to infer that he did so with the intent to
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deceive State Farm.
As to Herbert’s claim for breach of the implied covenant of good faith and
fair dealing, State Farm presented several declarations by individuals with personal
knowledge, as well as supporting documentary evidence, indicating that its
investigation was performed reasonably and in good faith. In opposition to
summary judgment, Herbert’s declaration again responded with conclusory
accusations and argument rather than specific facts that could lead a reasonable
jury to find in his favor. Accordingly, the district court properly granted State
Farm’s motion for summary judgment on this claim as well. See, e.g., FTC v.
Publ’g Clearing House Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory,
self-serving affidavit, lacking detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material fact.”).
AFFIRMED.
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