NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEANNA EVERETT, AKA Deanna Everett No. 15-35688
Whitley,
D.C. No. 1:14-cv-00121-BLW
Plaintiff-Appellant,
v. MEMORANDUM*
AMERICAN GENERAL LIFE
INSURANCE COMPANY, FKA American
General Assurance Company, an insurance
company licensed to do business in the State
of Idaho pursuant to Idaho Code, Title 41,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Argued and Submitted June 15, 2017
Seattle, Washington
Before: BYBEE, M. SMITH, and CHRISTEN, Circuit Judges.
Deanna Everett appeals the district court’s grant of summary judgment in
favor of American General Life Insurance Company (American General). Everett
claims that American General wrongfully denied her claim for payment under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
accidental death insurance policies it issued to Everett’s husband, John Whitley,
with Everett as the beneficiary. We reverse and remand.
1. Everett argues that she was denied due process because the court
excluded the testimony of Whitley’s cardiology physician Dr. Seale in its summary
judgment order, when possible exclusion of expert testimony was not properly
before the court. It was proper for the court to consider whether Everett’s
proffered evidence was admissible because a “court can only consider admissible
evidence in ruling on a motion for summary judgment.” Orr v. Bank of Am., NT &
SA, 285 F.3d 764, 773 (9th Cir. 2002). Further, a party may object to the
admissibility of evidence on summary judgment without filing a separate motion to
strike. See Fed. R. Civ. P. 56(c)(2).
2. Dr. Seale qualified as a “non-retained expert” pursuant to Federal Rule of
Civil Procedure (Rule) 26(a)(2)(C). As a treating physician, he was qualified to
testify regarding his opinions that “were formed during the course of treatment”
without necessitating a Rule 26(a)(2)(B) expert report. Goodman v. Staples The
Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011). The court erred by
holding on summary judgment that Dr. Seale did not qualify as a treating physician
expert on cause of death because his opinion was not formed during the course of
treatment and was instead formed almost a year after Whitley’s death when he
wrote his opinion in a letter at Everett’s request. The fact that Dr. Seale wrote an
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opinion about events that occurred a year earlier is not conclusive evidence that he
formed the opinion when he wrote it down. Because there is a genuine issue of
fact regarding when Dr. Seale formed his opinion, the issue should not have been
decided on summary judgment.
3. The court excluded Dr. Seale’s affidavit pursuant to Rule 37(c)(1)
because Everett failed to strictly comply with the Rule 26(a) disclosure
requirements, and this failure was not substantially justified or harmless. The court
abused its discretion by imposing Rule 37(c)(1) sanctions without making requisite
findings in its harmlessness analysis: (1) “whether the claimed noncompliance
involved willfulness, fault, or bad faith,” and (2) whether “lesser sanctions” were
available. R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1247 (9th Cir.
2012). These findings were required because exclusion of Dr. Seale’s affidavit
effectively amounted to dismissal of Everett’s claim. See id. Moreover, we are not
persuaded that Everett’s late disclosure of Dr. Seale’s affidavit was prejudicial.
Everett informally gave American General Dr. Seale’s opinion letter on Whitley’s
cause of death on June 5, 2014, and disclosed Dr. Seale as an expert on January 2,
2015. Even if these disclosures were technically inadequate, American General
was long aware of Dr. Seale’s identity and opinion, and even deposed him and
identified him as its own expert witness.
4. Everett argues that American General waived its objection to Dr. Seale’s
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affidavit and testimony by disclosing Dr. Seale as one of its own witnesses. This is
incorrect; it is possible that Dr. Seale’s testimony could be admissible only in part,
and American General did not waive its objection to Dr. Seale’s cause of death
testimony by disclosing Dr. Seale as an expert for other purposes.
5. As an alternative ground to support summary judgment, the court held
that Everett did not submit sufficient proof of loss. The court stated that Everett’s
proof of loss was insufficient because it did not show a “covered loss,” and for that
reason “American General asked for a new proof of loss, which was never
submitted.” However, the record does not reveal that American General asked for
a new proof of loss. American General requested additional information (the
original death certificate, obituary, and accident, autopsy, and toxicology reports),
Everett submitted some but not all of the information, and American General then
merely asked for more information “to complete processing the claims.” Everett
gave American General authorization to obtain Whitley’s medical records; contact
information for Whitley’s cardiologist, primary care physician, and surgeon; and
notification that her claim was that Whitley’s death was caused by a car accident.
This was sufficient to give American General “a reasonable opportunity to
investigate and determine its liability,” which is a sufficient proof of loss under
Idaho law. Estate of Holland v. Metro. Prop. & Cas. Ins. Co., 279 P.3d 80, 90
(Idaho 2012). Further, the court and American General did not explain how
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Everett’s submission fell short. Thus, it was error to hold on summary judgment
that the proof of loss was insufficient.
6. American General argues that summary judgment should be upheld on
the alternative ground that the exclusions in Whitley’s policy bar coverage,
regardless of whether Dr. Seale’s testimony is admitted. However, American
General does not explain why the rule stated in Jones v. Mountain States
Telephone and Telegraph Co., 670 P.2d 1305, 1312 (Idaho Ct. App. 1983), would
not apply to the policy exclusions. Jones held that “where an insurance policy
requires that an accident be the sole cause of death or injury, a loss is still covered,
even though a pre-existing disease may have contributed to the loss, if the accident
is the dominant cause.” Id. Thus, we decline to affirm summary judgment on this
ground.
We REVERSE and REMAND for proceedings consistent with this
memorandum and R & R Sails, 673 F.3d 1240.
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