FILED
NOT FOR PUBLICATION APR 27 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TARA ANN SHERWIN, No. 13-17342
Plaintiff - Appellant, D.C. No. 2:11-cv-00043-APG-
GWF
v.
INFINITY AUTO INSURANCE MEMORANDUM*
COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted April 13, 2016
San Francisco, California
Before: THOMAS, Chief Judge, and REINHARDT and CHRISTEN, Circuit
Judges.
After being injured in a car accident caused by another driver, Tara Sherwin
filed a claim with her own insurer, Infinity Auto Insurance, for underinsured
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motorist coverage. Sherwin alleges breach of contract because Infinity offered her
less than the full amount of policy coverage. She also alleges that Infinity acted in
bad faith and that it committed various unfair trade practices. The district court
granted summary judgment for Infinity on Sherwin’s bad faith and unfair trade
practices claims and remanded her breach of contract claim to state court. Sherwin
timely appealed. We have jurisdiction over this diversity action under 28 U.S.C.
§ 1291, and we affirm the summary judgment order.1
Sherwin did not raise a genuine issue of material fact about whether Infinity
acted in bad faith by offering $3,183 in response to her demand for the full $15,000
1
Sherwin asks us to review the district court’s order remanding her
contract claim to state court. The district court remanded the contract claim
because it decided it was divested of jurisdiction once the amount in controversy
dropped below the $75,000 threshold. See 28 U.S.C. § 1332(a). This was error.
Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 757 (9th Cir. 1999)
(“[D]iversity jurisdiction is determined at the time the action commences, and a
federal court is not divested of jurisdiction if . . . the amount in controversy
subsequently drops below the minimum jurisdictional level.”). However,
§ 1447(d) precludes review of this remand order. Kircher v. Putnam Funds Tr.,
547 U.S. 633, 641–42 (2006) (citing Briscoe v. Bell, 432 U.S. 404, 413 n.13
(1977)) (“[W]here the order is based on [lack of subject matter jurisdiction,]
review is unavailable no matter how plain the legal error in ordering the remand.”).
We retain jurisdiction to review the summary judgment order because it “preceded
the remand order in logic and fact” and the order is “conclusive, i.e. functionally
unreviewable in state courts.” Stevens v. Brink’s Home Sec., Inc., 378 F.3d 944,
946–47 (9th Cir. 2004) (quoting Dahiya v. Talmidge Int’l, Ltd., 371 F.3d 207, 210
(5th Cir. 2004)); see also Waco v. United States Fid. & Guar. Co., 293 U.S. 140,
143 (1934).
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policy limit. No reasonable jury could find that Infinity was without reasonable
basis to deny Sherwin’s claim for the full policy limit. Sherwin’s initial time-
limited demand substantiated only $11,543 in medical expenses and made no claim
for lost wages or pain and suffering. She had already received $15,000 from the
other driver’s insurance carrier for these injuries. Her argument that she should
also recover her full policy limit is based on one doctor’s opinion that Sherwin
“will most likely require anterior cervical discectomy and fusion at C5–6.” But
Sherwin told care providers that she “did not want surgery,” she was “not
experiencing any present symtomatology,” and she had “returned to work at full
duties with no restrictions.” This conflicting evidence gives rise to a genuine
dispute as to the value of Sherwin’s claim. Thus, Infinity was entitled to contest
Sherwin’s policy-limit demand without facing liability for bad faith.2
2
Sherwin argues the genuine dispute doctrine applies only to issues of
law (i.e., coverage disputes), not issues of fact (i.e., value disputes). Sherwin cites
no Nevada law supporting this proposition, nor have we found any. But California
courts—to which Nevada courts often defer in the insurance context—and this
court have applied the doctrine to both coverage and value disputes. See, e.g.,
Guebara v. Allstate Ins. Co., 237 F.3d 987, 994 (9th Cir. 2001) (“[W]e decline to
limit the genuine dispute doctrine to purely legal or contractual disputes.”); Wilson
v. 21st Century Ins. Co., 171 P.3d 1082, 1088–89 (Cal. 2007) (“[A]n insurer
denying or delaying the payment of policy benefits due to the existence of a
genuine dispute with its insured as to the existence of coverage liability or the
amount of the insured’s coverage claim is not liable in bad faith even though it
might be liable for breach of contract.”).
3
Sherwin did not raise a triable issue of fact as to whether Infinity committed
unfair trade practices under NRS 686A.310. Sherwin’s citation to Infinity’s Best
Practices Guide did not raise a fact question concerning compliance with
section (c) of the statute because the Guide specifies how to investigate and
process claims, and Sherwin provided no evidence to indicate that Infinity did not
sufficiently implement the Guide. Sherwin did not raise a fact issue concerning
compliance with section (e) of the statute because she did not show that Infinity
failed to promptly, fairly, and equitably settle the portion of her claim for which its
liability was reasonably clear—i.e., the damages she incurred for past care. As to
section (f), Sherwin did not raise an issue of fact about whether she was compelled
to sue given that Infinity offered several alternatives to litigation, including leaving
the claim open for additional medical evidence or engaging in arbitration. Nor did
Sherwin raise a triable issue of fact concerning section (n) of the statute because
Infinity, over the course of several letters, promptly explained the basis of its
decision, including its interpretation of the medical record, its obligations under the
policy, and what further actions Sherwin could take in order for Infinity to
reevaluate her claim.
Because Sherwin did not raise a triable issue of fact as to whether Infinity
acted in bad faith or committed unfair trade practices, she did not meet the higher
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burden of showing that a question exists about whether Infinity engaged in
oppression, fraud, or malice as required for punitive damages. Pioneer Chlor
Alkali Co. v. Nat’l Union Fire Ins. Co., 863 F. Supp. 1237, 1250 (D. Nev. 1994)
(citing NRS 42.005(1)). As the nonprevailing party, Sherwin was not entitled to an
award of attorney fees.
AFFIRMED.
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