Nalder Ex Rel Nalder v. United Automobile Insurance

FILED
NOT FOR PUBLICATION DEC 17 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES NALDER, Guardian Ad Litem on No. 11-15010
behalf of Cheyanne Nalder and GARY
LEWIS, individually, D.C. No. 2:09-cv-01348-ECR-
GWF
Plaintiffs - Appellants,

v. MEMORANDUM*

UNITED AUTOMOBILE INSURANCE
COMPANY,

Defendant - Appellee.

JAMES NALDER, Guardian Ad Litem on No. 11-15462
behalf of Cheyanne Nalder and GARY
LEWIS, individually, D.C. No. 2:09-cv-01348-ECR-
GWF
Plaintiffs - Appellees,

v.

UNITED AUTOMOBILE INSURANCE
COMPANY,

Defendant - Appellant.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding

Argued and Submitted December 7, 2012
San Francisco, California

Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.

Plaintiffs James Nalder, guardian ad litem of his daughter Cheyanne Nalder,

and Gary Lewis appeal from the district court’s grant of Defendant United

Automobile Insurance Company’s motion for summary judgment on all of

Plaintiffs’ claims. United Automobile Insurance Company cross-appeals from the

district court’s denial of United Automobile Insurance Company’s motion for

attorney’s fees. We have jurisdiction under 28 U.S.C. § 1291, and we reverse in

part and affirm in part.

We reverse the district court’s grant of United Automobile Insurance

Company’s motion for summary judgment with respect to whether there was

coverage by virtue of the way the renewal statement was worded. Plaintiffs came

forward with facts supporting their tenable legal position that a reasonable person

could have interpreted the renewal statement to mean that Lewis’s premium was

due by June 30, 2007, but that the policy would not lapse if his premium were

“received prior to expiration of [his] policy,” with the “expiration date” specifically
 -3-

stated to be July 31, 2007. We remand to the district court for trial or other

proceedings consistent with this memorandum. The portion of the order granting

summary judgment with respect to the statutory arguments is affirmed.

United Automobile Insurance Company’s cross-appeal regarding attorney’s

fees is moot in light of our disposition. We therefore affirm the district court’s

denial of attorney’s fees. Electro Source, LLC v. Brandess-Kalt-Aetna Grp., Inc.,

458 F.3d 931, 941 (9th Cir. 2006).

Each party shall bear its own costs.

REVERSED AND REMANDED IN PART, AFFIRMED IN PART.