Robert Mears v. Safeco Ins. Co. of Illinois , 572 F. App'x 503 ( 2014 )

FILED
NOT FOR PUBLICATION MAY 09 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT MEARS, No. 12-35917
Plaintiff - Appellant, D.C. No. 6:11-cv-00040-DWM
v.
MEMORANDUM*
SAFECO INSURANCE COMPANY OF
ILLINOIS,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted April 9, 2014**
Seattle, Washington
Before: HAWKINS, RAWLINSON, and BEA, Circuit Judges.
This court reviews de novo the district court’s grant of summary judgment,
Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994), and affirms.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. There are no genuine issues of material fact to preclude summary
judgment as to whether Mears consented, whether a mutual mistake of fact existed,
or whether the release was vague and ambiguous. Whether the parties mutually
consented to the contract is determined by “inquiring whether a reasonable person,
based upon the objective manifestation of assent, and all the surrounding
circumstances, would conclude that the parties intended to be bound by the
contract.” Chipman v. Nw. Healthcare Corp., Applied Health Servs., Inc., 317
P.3d 182, 185 (Mont. 2014). Mears’s objective manifestations are not in dispute
and Mears’s other subjective complaints do not create a dispute of fact relevant to
Mears’s objective manifestations. Further, we will not address any argument that
there was a mutual mistake of fact because Mears waived his right to appeal that
issue. Finally, Mears presents no evidence that creates an ambiguity in the plain
language of the telephone release.
2. The district court did not err in denying Mears summary judgment, and
granting summary judgment to Safeco, on the grounds that Mears’s consent was
not obtained through economic duress or undue influence. Despite Mears’s
argument to the contrary, Ridley v. Guaranty Nat’l Ins., 951 P.2d 987 (Mont.
1997), does not obligate Safeco to offer to pay for Mears’s future treatment before
settling Mears’s claim, and Mears has not alleged that Safeco rushed or threatened
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his decision to settle in any way. Thus, Safeco did not obtain Mears’s consent by
taking advantage of Mears as required for undue influence, Mont. Code Ann. § 28-
2-407, or by committing a wrongful act as required for economic duress. Hughes
v. Pullman, 36 P.3d 339, 343 (Mont. 2001). As a matter of law, Mears objectively
manifested his valid consent to the release free of undue influence or economic
duress.
The district court is AFFIRMED.
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