Sherrell Steinhauer v. Lmic ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHERRELL STEINHAUER; JOANNE No. 20-35837
STEINHAUER, husband and wife,
D.C. No. 3:18-cv-01416-JR
Plaintiffs-Appellants,
v. MEMORANDUM*
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted November 8, 2021**
Portland, Oregon
Before: GRABER and CHRISTEN, Circuit Judges, and R. COLLINS,*** District
Judge.
Plaintiffs Sherrell and Joanne Steinhauer appeal district court orders that
*
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).
***
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
granted Defendant Liberty Mutual Insurance Company’s motion for summary
judgment and denied the Steinhauers’ motions for partial summary judgment and
their motion to amend complaint. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm. Because the parties are familiar with the facts, we recite only those
necessary to decide the appeal.
The Steinhauers have the burden of establishing the contract’s existence,
Holdner v. Holdner, 29 P.3d 1199, 1203 (Or. Ct. App. 2001), and “[t]he
interpretation of an insurance policy is a question of law,” Richardson v. Guardian
Life Ins. Co. of Am., 984 P.2d 917, 921 (Or. Ct. App. 1999). “In order to warrant
enforcement, proof of the contract must be clear, unequivocal and by a
preponderance of the evidence.” Holdner, 29 P.3d at 1203 (citation and internal
quotation marks omitted). The first step in contract interpretation is to “look[ ] at
the four corners of a written contract[ ] and consider[ ] the contract as a whole with
emphasis on the provision or provisions in question.” Eagle Indus., Inc. v.
Thompson, 900 P.2d 475, 478-79 (Or. 1995) (en banc). “If the provision is clear,
the analysis ends.” Yogman v. Parrott, 937 P.2d 1019, 1021 (Or. 1997) (en banc).
The Steinhauers’ insurance policy identified Liberty Insurance Corporation
as the issuer of the policy. The policy explicitly stated, “[w]e will provide the
insurance described in this policy in return for the premium and compliance with
all applicable provisions of this policy[,]” and the policy defined the term “[w]e”
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as referring to the company providing the insurance. The Steinhauers failed to
demonstrate that Liberty Mutual was the issuer of their policy. Thus, the district
court correctly ruled that the Steinhauers sued the wrong party.
Additionally, the district court did not abuse its discretion in denying
permission for a very untimely proposed amendment because the Steinhauers filed
their motion to amend over a year after the court’s deadline to join parties, and
they failed to demonstrate the good cause required to justify their amendment. See
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992)
(“Once the district court ha[s] filed a pretrial scheduling order pursuant to Federal
Rule of Civil Procedure 16[,] which establishe[s] a timetable for amending
pleadings[,] that rule’s standards control[.]”); Fed. R. Civ. P. 16(b)(4) (“A schedule
may be modified only for good cause and with the judge’s consent.”). The
Steinhauers knew early in the case that they had sued the wrong party, both from
opposing counsel and from the court, yet they failed to substitute or add the correct
defendant in a timely manner.
The district court also applied the correct law to the Steinhauers’ claims of
waiver and estoppel, and it did not err in ruling that these doctrines did not suffice
to make Liberty Mutual the correct defendant. See Moore v. Mut. of Enumclaw Ins.
Co., 855 P.2d 626, 631 (Or. 1993) (en banc) (“[I]n cases involving fire insurance
policies, the requirement of a written waiver imposed by ORS 742.222 supersedes
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the common law rule recognizing oral waiver and waiver by conduct.”); Kimball v.
Horticultural Fire Relief of Oregon, 154 P. 578, 581 (Or. 1916) (“An estoppel
always implies a party has been misled to his prejudice, or into an altered position
which he would not have taken except for representations relied upon[.]”).
Accordingly, we need not reach any of the other issues.
AFFIRMED.
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