NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMI HUNTING, No. 20-35916
Plaintiff-Appellant, D.C. No. 3:19-cv-05783-MJP
v.
MEMORANDUM*
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY, a foreign
insurance company,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted December 7, 2021
Pasadena, California
Before: KELLY,** M. SMITH, and FORREST, Circuit Judges.
Plaintiff-Appellant Jami Hunting appeals the summary judgment granted in
favor of Defendant-Appellee American Family Mutual Insurance Co. (American
Family) on her breach of contract, bad faith, and Washington Consumer Protection
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Act (CPA) claims in this denial of coverage case. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo. Howard
v. HMK Holdings, LLC, 988 F.3d 1185, 1189 (9th Cir. 2021). When determining
whether there are any genuine issues of material fact, we must review the evidence
in the light most favorable to the nonmoving party. Id. The proper inquiry is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
DISCUSSION
The parties are familiar with the facts, so we need not restate them here other
than to state that Ms. Hunting sought to recover for damage to a rental property
insured under a businessowners policy. On appeal, Ms. Hunting contends that the
district court erred: (1) in rejecting her breach of contract claim because American
Family should be estopped from asserting a contractual time limitation defense; (2)
in overlooking evidence that American Family acted in bad faith and violated the
Washington CPA by characterizing the damage as “wear and tear” and “inadequate
. . . maintenance”; and (3) in striking the Declaration of Rob Berg who videotaped
the damage and expressed his opinion that the damage was intentional.
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A. Equitable Estoppel
Ms. Hunting contends that the evidence supports her claim that American
Family should be estopped from asserting the policy’s time limitation period. The
elements an equitable estoppel defense are: “(1) an admission, statement, or act
inconsistent with the claim afterwards asserted, (2) action by the other party on the
faith of such admission, statement, or act, and (3) injury to such other party
resulting from allowing the first party to contradict or repudiate such admission,
statement, or act.” Dombrosky v. Farmers Ins. Co. of Wash., 928 P.2d 1127, 1134
(Wash. Ct. App. 1996) (citation omitted). The party asserting estoppel must prove
each element by “clear, cogent, and convincing evidence.” Id. An insurer can be
estopped from enforcing its suit limitation provision where its conduct causes the
insured to refrain from performing a necessary act that causes her prejudice. See
Dickson v. U.S. Fid. & Guar. Co., 466 P.2d 515, 517 (Wash. 1970) (en banc).
Nothing in the record shows that American Family caused Ms. Hunting to
refrain from filing suit until after the May 3, 2019, deadline. Ms. Hunting claims
that continuing negotiations led her to believe that settlement of her claim was
possible. Yet, any contact with an American Family adjuster after the May 3,
2019, deadline could not have induced Ms. Hunting’s delay. Additionally, emails
exchanged between Ms. Hunting and her public adjuster, James Thomas, in April
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2019 confirm that Ms. Hunting understood that negotiations were over well before
the May 3 deadline.
Ms. Hunting’s argument with respect to an American Family agent’s
representations about time limitations is also unavailing. “Reliance is justified
only when the party claiming estoppel did not know the true facts and had no
means to discover them.” Marashi v. Lannen, 780 P.2d 1341, 1344 (Wash. Ct.
App. 1989). Ms. Hunting says she was told that there was no time limitation
regarding her insurance claim. Such a statement is a direct contradiction of the
plain language of the insurance policy. It also runs counter to a January 3, 2019,
letter sent to Mr. Thomas reminding Ms. Hunting of the policy’s two-year suit
limitation period.1 Summary judgment was properly granted on Ms. Hunting’s
claim that American Family was equitably estopped from relying on the
contractual limitations period.
B. Extra-Contractual Claims
Ms. Hunting makes two related extra-contractual claims: a bad faith tort
claim and a claim under the Washington CPA. To prevail on a bad faith claim, the
1
Ms. Hunting also argues that because this letter was sent directly to Mr. Thomas
120 days before her suit limitation deadline, American Family failed to provide her
a 30-day notice of the two-year suit limitation clause under Washington
Administrative Code § 284-30-380(5) (2009). Because this argument was raised
for the first time on appeal, we will not consider it. See In re Am. W. Airlines, Inc.,
217 F.3d 1161, 1165 (9th Cir. 2000).
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insured “must show the insurer’s breach of the insurance contract was
unreasonable, frivolous, or unfounded.” Smith v. Safeco Ins. Co., 78 P.3d 1274,
1277 (Wash. 2003) (en banc). To prevail on a Washington CPA claim, Ms.
Hunting must show that American Family “engaged in an unfair or deceptive act or
practice” that caused her injury. Overton v. Consol. Ins. Co., 38 P.3d 322, 330
(Wash. 2002) (en banc). If the insurer denies coverage based on “a reasonable
interpretation of the insurance policy” and “reasonable conduct,” neither bad faith
nor a violation of the Washington CPA can be established. Id. at 329, 330.
Much of the physical damage was documented as scratches, stains, dents,
scrapes, nicks, dirt, water damage, and abrasions. This is consistent with American
Family’s categorization of the damage as “wear and tear” and “inadequate . . .
maintenance” under the policy. At most, given the tremendous number of items
claimed by Ms. Hunting, American Family and Ms. Hunting did not agree about
how to categorize the damage. On these facts, a dispute about the categorization of
damage does not constitute bad faith under Washington law. Additionally,
American Family did not act unreasonably by hiring a third-party adjuster to
conduct an inspection. The evidence simply does not support that American
Family denied coverage based on an unreasonable interpretation of the policy or
unreasonable conduct.
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C. Declaration of Rob Berg
American Family moved to strike Mr. Berg’s declaration, and the district
court granted the motion in a footnote. We review a district court’s grant of a
motion to strike for an abuse of discretion. El Pollo Loco, Inc. v. Hashim, 316
F.3d 1032, 1038 (9th Cir. 2003). Although it is doubtful that Mr. Berg’s
declaration was presented as expert testimony under Federal Rule of Evidence 702,
any error from the exclusion was harmless as Mr. Berg’s declaration largely
repeats the statements in Ms. Hunting’s own declaration and does not raise a
genuine issue of material fact. See Tritchler v. Cnty. of Lake, 358 F.3d 1150, 1154
(9th Cir. 2004).
AFFIRMED.
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