Susan Parker v. Allstate Insurance Company , 472 F. App'x 627 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 30 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SUSAN M. PARKER, ) No. 11-35228
)
Plaintiff – Appellant, ) D.C. No. 3:10-cv-05784-BHS
)
v. ) MEMORANDUM*
)
ALLSTATE INSURANCE )
COMPANY, )
)
Defendant – Appellee. )
)
)
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and submitted March 7, 2012
Seattle, Washington
Before: FERNANDEZ and PAEZ, Circuit Judges, and GWIN,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
Susan Parker appeals the district court’s grant of summary judgment to her
insurer, Allstate, in her action for breach of contract and bad faith. An uninsured
motorist injured Parker in an accident, and Parker sued Allstate for uninsured
motorist benefits after a series of contentious exchanges with Allstate during the
claims investigation process.
The district court dismissed her claims with prejudice because Parker had
not submitted to an examination under oath (“EUO”) before she sued Allstate. The
district court dismissed the case although Allstate’s policy with Parker, unlike most
other policies, contained no contractual provision requiring Parker to submit to an
EUO. We reverse.
The district court erred when it ruled that Parker needed to complete an EUO
before she could sue. Washington law provides that an insurance policy can
require an insured to be examined under oath, but Washington law does not say
that a policyholder cannot sue before the EUO has been completed. Wash. Rev.
Code § 48.18.460. Washington insurers commonly issue policies that expressly
require examination under oath. See, e.g., Staples v. Allstate Insurance Co., No.
64816-1, 2011 WL 1896217, at *3 (Wash. Ct. App. May 16, 2011). Where
expressly provided, Washington courts enforce cooperation clauses that forbid
lawsuits before the policyholder has complied with the EUO provision. E.g.,
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Downie v. State Farm Fire & Cas. Co., 929 P.2d 484, 487 (Wash. Ct. App. 1997).
But unlike other Allstate insurance products, Parker’s policy contains no provision
requiring her to submit to an EUO, much less requiring that an EUO occur before
she may sue. We find no requirement under Washington law that an insured
complete an EUO before suing her insurer when the insuring contract includes no
EUO requirement.
In light of the above determination, we need not consider whether the
parties’ cooperation with the taking of an EUO remains a genuine issue of material
fact for trial. Nor need we decide whether Allstate would need to show prejudice,
if an EUO had been required and Parker had proceeded without submitting to one.
Those issues could have been avoided had the parties approached each other with
less fractious frames of mind.
That the dispute over Parker’s claim reaches this Court reflects the parties’
(and their attorneys’) pointless obstinacy. The parties should have easily resolved
disputes over authorizations, over the authority to conduct an EUO, and over the
scheduling of the EUO through common courtesies, rather than taxing the
resources of the federal judiciary.
REVERSED and REMANDED.
3