Deana Coleman v. American Commerce Insurance

FILED
NOT FOR PUBLICATION DEC 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEANA COLEMAN, No. 10-36123
Plaintiff - Appellant, D.C. No. 3:09-cv-05721-RJB
v.
MEMORANDUM *
AMERICAN COMMERCE
INSURANCE, a foreign corporation doing
business in Washington,
Defendant - Appellee.
DEANA COLEMAN, No. 10-36139
Plaintiff - Appellee, D.C. No. 3:09-cv-05721-RJB
v.
AMERICAN COMMERCE
INSURANCE, a foreign corporation doing
business in Washington,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Robert J. Bryan, Senior District Judge, Presiding
Submitted December 9, 2011 **
Seattle, Washington
Before: GUY,*** McKEOWN, and TALLMAN, Circuit Judges.
Deana Coleman appeals the district court’s summary judgment in favor of
American Commerce Insurance Company in this diversity action arising from a
motor vehicle accident. Coleman’s daughter was seriously injured in the accident.
Coleman alleged that she suffered emotional distress from witnessing her
daughter’s injuries, which resulted in post-traumatic stress disorder. At the time of
the accident, Coleman had an underinsured motorist policy with American
Commerce. Coleman alleged that American Commerce violated its duty of good
faith and fair dealing, the Washington State Insurance Fair Conduct Act (“IFCA”),
and the Washington State Consumer Protection Act (“CPA”). American
Commerce cross appealed. We review de novo a district court’s order granting
summary judgment. Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114, 1117
(9th Cir. 2009).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ralph B. Guy, Jr., Senior United States Circuit Judge
for the Sixth Circuit Court of Appeals, sitting by designation.
-2-
The district court correctly found that Coleman had no damages to support
her claims against American Commerce under common law, the IFCA, or the
CPA. In a first-party context, the insured’s common law damages are limited to
the amount incurred as a result of the bad faith as well as general tort damages.
Coventry Assocs. v. Am. States Ins. Co., 961 P.2d 933, 939 (Wash. 1998). Here,
Coleman failed to show damages or harm incurred as a result of the alleged bad
faith. Similarly, Coleman has not shown actual damages that were the result of
American Commerce’s actions sufficient to substantiate a claim under the IFCA or
the CPA.1
Assuming that Coleman did not waive her claim for negligent infliction of
emotional distress, the district court properly found that Coleman’s injuries were
not foreseeable as a matter of law, and thus properly granted summary judgment in
favor of American Commerce on this claim. We adopt the district court’s rationale
in its September 14, 2010 order. Because Coleman’s claims do not survive
summary judgment, she is not entitled to a jury trial.
On cross-appeal, the district court correctly found that Coleman did not fail
to cooperate. American Commerce first requested a sworn statement from
1
Coleman’s motion for certification to the Washington Supreme Court is
denied.
-3-
Coleman in a letter dated October 30, 2009, nearly two weeks after Coleman had
already put American Commerce on notice of her intent to sue. Finally, in its
letters dated September 22, 2008, and January 9, 2009, American Commerce
misstated insurance policy provisions. The policy does not state that there is a
requirement that Coleman must seek medical treatment before satisfying the
definition of “bodily injury.” We adopt the district court’s rationale in its decision
of July 13, 2010.
AFFIRMED.
-4-