NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 13 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
AMERICAN FAMILY MUTUAL No. 09-17202
INSURANCE COMPANY, a Wisconsin
corporation, D.C. No. 2:07-cv-02237-NVW
Plaintiff - Appellant,
MEMORANDUM*
v.
NATIONAL FIRE & MARINE
INSURANCE COMPANY, a foreign
corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted November 5, 2010
San Francisco, California
Before: HALL and THOMAS, Circuit Judges, and RESTANI, Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jane A. Restani, Judge of the United States Court of
International Trade, sitting by designation.
Plaintiff-appellant American Family Mutual Insurance (“American Family”)
appeals the district court’s summary judgment order in favor of National Fire &
Marine Insurance Company (“National Fire”) and Owners Insurance Company
(“Owners”) (collectively “defendants”). American Family seeks indemnification
from defendants for legal defense it is providing on behalf of George F. Tibsherany
Development Corporation (“GFTDC”) in a construction defect suit. The district
court concluded that American Family failed to produce sufficient evidence to
invoke the mailbox rule with regards to the tender letters and that GFTDC
breached the notice provisions in the defendants’ policies. The district court also
found that Owners was not equitably estopped from denying coverage. We have
jurisdiction under 28 U.S.C. § 1291 and we reverse and remand.
American Family asserts that it produced sufficient evidence to invoke a
rebuttable presumption of delivery under the mailbox rule with regards to the
insurance tender letters and that it provided sufficient notice of the construction
defect suit to the defendants. In the context of summary judgment, the Court must
view the evidence in the light most favorable to American Family. Singh v.
Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010). The district court erred in granting
summary judgment because there are unresolved issues of material fact as to
2
whether the tender letters were mailed and whether notice was properly given. See
Singh, 618 F.3d at 1088.
American Family also contends that the district court abused its discretion in
refusing to consider portions of the record pertaining to its estoppel claim, which it
failed to cite in its briefs, but corrected at oral argument. Am. Family Mut. Ins. Co.
v. Nat’l Fire & Marine Ins. Co., No. CV07-2237-PHX-NVW, 2009 WL 2870195
at *10 (D. Az. Sept. 3, 2009). The district court abuses its discretion by excluding
evidence if the exclusion is both “manifestly erroneous” and prejudicial. Orr v.
Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). A local rule states that a party
opposing summary judgment shall file a statement and support each fact in their
statement with “a specific admissible portion of the record.”1 LRCiv 56.1(b). This
district court abused its discretion by excluding the evidence because (1) it was
“manifestly erroneous” for the Court to exclude the evidence after American
Family diligently attempted to cure the minor and inadvertent omission during oral
argument and (2) American Family was prejudiced because it was not permitted to
present crucial evidence supporting the reliance prong of its estoppel claim. See
1
The local rules are silent as to what the district court must do if a fact is not
properly supported by a citation to the record. See LRCiv 56.
3
Orr, 285 F.3d at 773; see also Acosta v. Phx. Indem. Ins. Co., 153 P.3d 401, 405
(Ariz. Ct. App. 2007).
REVERSED and REMANDED.
4