Schmidt v. Certain Underwriters at Lloyd's , 203 F. App'x 887 ( 2006 )

MEMORANDUM ^*

Sam D. Schmidt appeals the district court’s decision granting summary judgment in favor of certain underwriters at Lloyds of London (“the Underwriters”) as to insurance coverage. We reverse and remand. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.

I

We review the district court’s grant of summary judgment de novo. Funky Films, Inc. v. Time Warner Entertainment Co., L.P., 462 F.3d 1072, 1076 (9th Cir.2006). In reviewing the district court’s grant of summary judgment, “[w]e must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Fitzgerald Living Trust v. United States, 460 F.3d 1259, 1263 (9th Cir.2006). Summary judgment is only appropriate if “the evidence ... is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Applying these principles, we conclude that genuine issues of material fact exist that preclude summary judgment in this case. Construing the facts in the light most favorable to Schmidt, as we must at this stage, broker Gorsline tendered an offer to renew the insurance contract stating that the “quote is valid for 30 days.”¹ Schmidt responded in a handwritten fax stating “Sorry John ... I don’t have a contract to drive yet unfortunately! I’ll call you. — Sam.” The district court concluded that this handwritten response “can only be interpreted as a declination of the proposed coverage.”

Schmidt contends that the fax merely indicated his desire to wait before acting, which he eventually did. Schmidt’s interpretation of the fax is not only supported by the plain text and his own testimony, but by the deposition testimony of broker Gorsline who stated that he had several conversations with Schmidt in which Schmidt indicated he was not sure what he wanted to do regarding the policy. The prior course of dealing between the parties indicated that payment of the premium within the offer period was sufficient to renew the policy, even if it was not accompanied by the Renewal Proposal Form. Additionally, once payment was received by Gorsline, a letter sent by Gorsline to the Underwriters and copied to the Schmidt family indicated that Gorsline did not feel the Renewal Form was necessary to bind coverage. To the extent returning the Renewal Form was ever an express requirement of acceptance — and we think the course of dealing establishes that it was not — this letter waived that requirement. Given the record, and construing the facts in the light most favorable to Schmidt, there exists a genuine issue of material fact precluding summary judgment as to whether his fax constituted a rejection of the offer, and whether his subsequent acceptance of the offer was effective.

We decline to reach any other defenses urged on appeal.²

II

The district court also- erred by refusing to consider Schmidt’s Nevada law claims. The liberal pleading rules codified by Fed.R.Civ.P. 8 have been interpreted to allow as sufficient, in an insurance context, merely claiming that injuries or expenses are covered under the terms of a policy and “demand[ing] the coverage called for in the policy.” Crull v. GEM Ins. Co., 58 F.3d 1386, 1391 (9th Cir.1995). “The pleadings need not identify any particular legal theory under which recovery is sought.” Id. Accordingly, Schmidt was not required to raise his Nevada state law claims any earlier than he did and the district court was obliged to consider them. Because the district court did not address Schmidt’s state law theories on the merits, we decline to reach the merits of those claims for the first time on appeal.³

REVERSED AND REMANDED.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

1 . The Underwriters allege that Gorsline did not have authority to make such an offer, but that is another question of fact that cannot be resolved on summary judgment.

2 . Specifically, Gorsline also urges on appeal that the "known loss” doctrine precludes recovery — a theory not decided by the district court. Gorsline concedes there is no Nevada case law adopting this theory and offers only minimal authority — from another jurisdiction’s intermediate appellate court in 1948— that applies the doctrine to circumstances in which a loss occurred after a policy was in effect but during the period in which renewal was pending. Regardless, we decline to address this issue for the first time on appeal, leaving that to the district court to consider in the first instance.

3 . We disagree with the dissent’s position that there is no possibility of relief under the Nevada state law claims. For example, Schmidt has asserted a very colorable claim that the notice provisions of Nevada’s general insurance statutes apply to Schmidt’s policy. If applicable, notice was required to be given thirty days in advance for renewals offered at different rates. See Nev.Rev.Stat. § 687B.350 (1999). The earliest notice of renewal Schmidt purportedly received was on December 14, 1999 — twenty-two days prior to expiration of the policy. That communication contained no reference to any rate increase. He was not given notice that renewal would be offered at a higher rate ($17,800 as opposed to $14,000, a 27% increase) until January 3, 2000 — two days before expiration. Whether § 687B.350 or any other statutory provision applies, whether any provision was violated, and what the remedy is for such violations, are all questions we leave to the district court to answer in the first instance.