Roxanne Tunison v. Safeco Ins. Company of Il. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROXANNE TUNISON; et al., No. 20-36017
Plaintiffs-Appellants, D.C. No. 2:19-cv-00503-RSL
v.
MEMORANDUM*
SAFECO INSURANCE COMPANY OF
ILLINOIS, a foreign corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted October 4, 2021**
Seattle, Washington
Before: TASHIMA, M. SMITH, and NGUYEN, Circuit Judges.
Elias, Jon, and Roxanne Tunison appeal the district court’s order granting
summary judgment in favor of Safeco Insurance Company of Illinois (“Safeco”).
We have jurisdiction under 28 U.S.C. § 1291. Reviewing the district court’s grant
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of summary judgment de novo, Bravo v. City of Santa Maria, 665 F.3d 1076, 1083
(9th Cir. 2011), we affirm.
1. The district court properly granted summary judgment on the
Tunisons’ breach of contract claim. The Tunisons contend Safeco breached the
insurance contract by applying the Montana underinsured motorist coverage
(“UIM”) limits when they resided in Washington at the time of the accident.
However, prior to the initiation of the underlying proceedings, Safeco agreed to
reform the Tunisons’ policy such that Washington UIM limits applied. Thus, the
Tunisons have failed to raise a genuine issue of material fact. See Urbina v. Nat’l
Bus. Factors Inc., 979 F.3d 758, 762 (9th Cir. 2020) (“Summary judgment is
appropriate when ‘there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” (quoting Fed. R. Civ. P.
56(a))).1
After receiving documentation of her injuries and treatment, Safeco paid
Roxanne Tunison the Washington UIM limit. Therefore, her breach of contract
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The Tunisons waived claims regarding personal injury protection coverage by
failing to timely assert them before the district court. The district court
accordingly declined to address such claims, as does this court. Navajo Nation v.
U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (en banc) (holding that
district court need not consider claim not included in the complaint and raised for
the first time at summary judgment); Crawford v. Lungren, 96 F.3d 380, 389 n.6
(9th Cir. 1996) (declining to consider claim raised for the first time on appeal).
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claim also fails. There is also no triable issue as to Elias Tunison’s entitlement to
UIM benefits under the policy. Safeco denied the claim as to Elias because he did
not submit supporting documentation for his claimed lost wages and the cause and
extent of his injuries could not be established from the records provided. The
losses he did support with evidence were fully compensated by the settlement
funds from the at-fault driver’s insurer and Safeco’s initial $5,000 payment. And
there is no record support for Elias’ claim of damages for continuing and future
medical treatment in excess of the funds already received.
2. The district court properly granted summary judgment on the
Tunisons’ Washington Consumer Protection Act (“CPA”) claim. The Tunisons
rely on Washington Administrative Code (“WAC”) 284-30-330 which, in relevant
part, prohibits an insurer from refusing to pay a claim without conducting a
reasonable investigation, failing to make a good faith effort to effectuate claim
settlement when liability is reasonably clear, and compelling a claimant to resort to
litigation by offering substantially less than what is ultimately recovered in the
legal action. See Indus. Indem. Co. of the Nw., Inc. v. Kallevig, 792 P.2d 520, 529
(Wash. 1990) (en banc) (holding that a violation of WAC 284-30-330 constitutes a
“per se unfair trade practice” under the CPA).
Safeco promptly communicated with the Tunisons regarding the material
needed to evaluate their claim. When the Tunisons provided records in a form
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inaccessible to Safeco, Safeco requested records sent through different means on
multiple occasions. Then in denying the Tunisons’ claim, Safeco made clear that it
was willing to re-evaluate the claim if additional records were provided. Once
additional records as to Roxanne Tunison’s medical treatment were submitted,
Safeco paid her the coverage limit. On this record, there is no triable issue of fact
that Safeco acted unreasonably in investigating the Tunisons’ claim.
Nor is there a triable issue that Safeco’s liability was reasonably clear when
it first denied the Tunisons’ claim. As stated above, the record does not support
Elias Tunison’s entitlement to UIM benefits. Therefore, liability as to him was not
reasonably clear. As to Roxanne Tunison, even assuming she could prove the
medical damages alleged at that time, she was already made whole by the
settlement funds and Safeco’s initial $5,000 payment. Her entitlement to benefits
for future medical treatment was not reasonably clear from the records she
provided, nor was it reasonably clear that future treatment would entitle her to
payment beyond the compensation she had already received. Her demand for lost
wages was supported only by sparse documentation that did not make reasonably
clear the extent, if any, of Safeco’s liability.
Finally, there is no triable issue that Safeco’s denial of benefits or failure to
concede the applicability of Washington UIM limits compelled the Tunisons to
litigate. As previously noted, when Safeco denied the Tunisons’ claim it informed
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them that it was willing to re-evaluate if they submitted additional documentation.
As to the applicability of the Washington UIM limits, the policy was issued in
Montana under Montana law, and Roxanne and Elias Tunison failed to inform
Safeco that they were residing in Washington until after the car accident. Prior to
this litigation, Safeco procured evidence as to the Tunisons’ residency and
reformed the policy consistent with the Washington UIM limits. Further, the fact
that Roxanne Tunison ultimately received a full UIM payout despite the initial
denial is not sufficient by itself to establish Safeco’s liability. See Perez-Crisantos
v. State Farm Fire & Cas. Co., 389 P.3d 476, 483 (Wash. 2017).
3. The district court properly granted summary judgment as to the
Tunisons’ claim under the Washington Insurance Fair Conduct Act (“IFCA”),
which provides a cause of action for those who are “unreasonably denied a claim
for coverage or payment of benefits by an insurer . . . .” Wash. Rev. Code §
48.30.015(1). This claim fails for the same reasons as the claim under the CPA.
4. Finally, the district court properly granted summary judgment on the
Tunisons’ bad faith claim. For bad faith claims, “[t]he determinative question is
reasonableness of the insurer’s actions in light of all the facts and circumstances of
the case.” Anderson v. State Farm Mut. Ins. Co., 2 P.3d 1029, 1033 (Wash. Ct.
App. 2000). No record evidence supports the Tunisons’ claim that Safeco’s
conduct was unreasonable.
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AFFIRMED.
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