Dennis Baadsgaard v. Safeco Insurance Company of Il ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS BAADSGAARD; SHELLY No. 20-36104
BAADSGAARD,
D.C. No. 4:19-cv-00075-BMM
Plaintiffs-Appellants,
v. MEMORANDUM*
SAFECO INSURANCE COMPANY OF
ILLINOIS, a Liberty Mutual Company,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted November 8, 2021**
Seattle, Washington
Before: GOULD, TALLMAN, and BUMATAY, Circuit Judges.
Dennis and Shelly Baadsgaard appeal from the district court’s entry of
summary judgment for Safeco Insurance Co., denial of the Baadsgaards’
application for additional discovery, and denial of the Baadsgaards’ objection to a
*
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).
pretrial protective discovery order. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. The district court properly granted summary judgment for Safeco.
Safeco was prejudiced by the insured’s failure to provide notice of the state court
complaint because Safeco was deprived of the opportunity to defend its insured,
and it now faces exposure to potential liability far greater than its policy limits.
See Steadele v. Colony Ins. Co., 260 P.3d 145, 149–51 (Mont. 2011).
Additionally, Safeco did not breach its duty to defend its insured because it was not
given notice of the state court complaint, see id., and the duty to defend does not
arise until a legal complaint is filed against the insured, see Tidyman’s Mgmt.
Servs. Inc. v. Davis, 330 P.3d 1139, 1149 (Mont. 2014).
2. The district court properly denied the Baadsgaards’ objection to the
protective order because “good cause” existed for the order under Fed. R. Civ. P.
26(c)(l) and the objection was moot. See B.R.S. Land Invs. v. United States, 596
F.2d 353, 356 (9th Cir. 1979) (per curiam).
3. The district court properly denied the Baadsgaards’ Rule 56(d)
application for further discovery because Safeco would still be entitled to summary
judgment even if the Baadsgaards discovered additional sought-after facts. See
Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018).
AFFIRMED.
2