Gary Williams v. American Family Mutual Ins , 593 F. App'x 610 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GARY WILLIAMS; NIDENIA No. 12-16294
WILLIAMS, individually and as husband
and wife, D.C. No. 2:09-cv-00675-KJD-
VCF
Plaintiffs - Appellants,
v. MEMORANDUM*
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted November 18, 2014**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GOULD and WATFORD, Circuit Judges, and MARTINEZ, District
Judge.***
This appeal arises from an under insured motorist (“UIM”) coverage dispute
between Gary and Nidenia Williams and their insurance company American
Family Mutual Insurance Company. Appellants Gary and Nidenia Williams
appeal the district court’s order on May 3, 2012 (1) granting American Family’s
motion for summary judgment on their claims of bad faith, violation of the Unfair
Claims Practices Act, lost wages, emotional distress, and punitive damages; and (2)
denying Appellants’ counter motion for summary judgment on the liability of
American Family for Gary Williams’ hip injury, equitable estoppel, and waiver.
Appellants also appeal the district court’s order denying their motion to reconsider
or set aside the court’s summary judgment order on May 3, 2012. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
1. Appellants contend that the district court erred in granting American
Family’s motion for summary judgment on their bad faith claim. We review the
district court’s decision to grant summary judgment de novo. Del. Valley Surgical
Supply, Inc. v. Johnson & Johnson, 523 F.3d 1116, 1119 (9th Cir. 2008).
Summary judgment is proper if viewing the evidence in the light most favorable to
***
The Honorable Ricardo S. Martinez, District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.
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the nonmoving party, “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In Nevada, “every contract imposes upon the contracting parties the duty of
good faith and fair dealing.” Hilton Hotels Corp. v. Butch Lewis Prods., Inc., 862
P.2d 1207, 1209 (Nev. 1993). “To establish a prima facie case of bad-faith refusal
to pay an insurance claim, the plaintiff must establish that the insurer had no
reasonable basis for disputing coverage, and that the insurer knew or recklessly
disregarded the fact that there was no reasonable basis for disputing coverage.”
Powers v. United Servs. Auto. Ass’n, 962 P.2d 596, 604 (Nev. 1998).
Here, American Family acted reasonably under the UIM policy. It had a
reasonable basis for denying Nidenia Williams’ UIM claim on the grounds that she
was adequately compensated by receiving a medical payment of $4,122 from
American Family and a settlement of $6,500 from the tortfeasor’s insurance
carrier. American Family also had a reasonable basis for contesting Gary
Williams’ UIM claim that his hip injury was caused solely by the automobile
accident, because various doctors’ reports and testimonies showed his hip injury
was a pre-existing condition, resulting from college sports.
2. Appellants next contend that American Family violated the Nevada
Unfair Claims Practices Act, NEV. REV. STAT. § 686A.310, because it
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unreasonably delayed claim processing. Nevada statutes prohibit insurance
companies from engaging in unfair practices when handling insurance claims.
NEV. REV. STAT. § 686A.310. Here, Appellants did not make a sufficient showing
of any unfair practices by American Family. Appellants made their first formal
UIM demand on October 29, 2008 and filed suit against American Family thirteen
weeks later. A thirteen-week delay is not an unreasonable delay that violates the
Unfair Claims Practices Act. See Zurich Am. Ins. Co. v. Coeur Rochester, Inc.,
720 F. Supp. 2d 1223, 1238 (D. Nev. 2010). Also, some delay was caused by
Appellants’ counsel failing to provide American Family readable medical records.
Weighing the evidence in the light most favorable to Appellants, who produced no
evidence of American Family’s unfair practices, the district court did not err in
granting American Family’s motion for summary judgment on Appellants’ unfair
practices claim.
3. The district court properly granted American Family’s motion for
summary judgment on Appellants’ claims of lost wages and emotional distress,
because Appellants did not show that they suffered from lost wages or emotional
damages. In contrast, American Family produced letters from Appellants’
employers showing that Appellants did not miss any time at work as a result of the
accident, and Appellants testified in their depositions that they did not suffer from
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any emotional damages. The district court also properly granted American
Family’s motion for summary judgment on Appellants’ claim of punitive damages,
because Appellants did not show that American Family’s conduct constituted
oppression, fraud, or malice. See NEV. REV. STAT. § 42.005.
4. Appellants next contend that the district court erred in denying their
counter motion for summary judgment on Gary Williams’ hip injury, equitable
estoppel, and waiver. We disagree. First, American Family produced doctors’
reports and testimonies showing Gary Williams’ pre-existing condition and
creating a genuine factual dispute on whether his hip injury was caused solely by
the automobile accident.
Second, Appellants did not show that American Family satisfied any of the
four elements required for the application of equitable estoppel. Cheqer, Inc. v.
Painters & Decorators Joint Comm., Inc., 655 P.2d 996, 998–99 (Nev. 1982).
American Family was not aware of Gary Williams’ pre-existing condition when it
made medical payments, and did not intend that its medical payments be
interpreted as its commitment to cover Appellants’ UIM claims. Appellants also
did not show any detrimental reliance or a change of position.
Third, American Family did not waive its defense on the denial of UIM
coverage. Waiver requires an “intentional relinquishment of a known right,” and
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an effective waiver “must occur with full knowledge of all material facts.”
Thompson v. N. Las Vegas, 833 P.2d 1132, 1134 (Nev. 1992). Nothing in the
record established or suggested that American Family intended to relinquish its
right to deny or contest Appellants’ UIM coverage.
5. Appellants finally contend that the district court erred in denying their
motion to reconsider or set aside the court’s May 3, 2012 summary judgment
order, because it discovered a claims manual that constituted newly discovered
evidence. We review the district court’s denial of the motion to reconsider for
abuse of discretion. Sch. Dist. No. 1J, Multnomah Cnty. v. AC&S, Inc., 5 F.3d
1255, 1262 (9th Cir. 1993). To be relieved from a final order granting summary
judgment, the party seeking relief must show that there is newly discovered
evidence within the meaning of Rule 59, that the party seeking relief exercised due
diligence to discover the evidence, and that “the newly discovered evidence must
be of such magnitude that production of it earlier would have been likely to change
the disposition of the case.” Coastal Transfer Co. v. Toyota Motor Sales, U.S.A.,
833 F.2d 208, 211 (9th Cir. 1987). Here, the claims manual is not newly
discovered evidence, because Appellants had possession of the manual five weeks
before entry of summary judgment. See, e.g., Feature Realty, Inc. v. Spokane, 331
F.3d 1082, 1093 (9th Cir. 2003); Coastal Transfer, 833 F.2d at 212. Appellants
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also did not show that the manual is “of such magnitude that production of it
earlier would have been likely to change the disposition of the case.” Id. at 211.
The district court did not abuse its discretion in denying Appellants’ motion to
reconsider or set aside the court’s May 3, 2012 summary judgment order.
AFFIRMED.
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