Live Group of USA, LLC v. Mid-Century Ins. Co. ( 2018 )

FILED
NOT FOR PUBLICATION
JUN 11 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIVE GROUP OF USA, LLC, DBA No. 16-35599
Westwind Townhomes,
D.C. No. 2:15-cv-01211-MJP
Plaintiff-Appellant,
v. MEMORANDUM*
MID-CENTURY INSURANCE
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Submitted June 7, 2018**
Seattle, Washington
Before: BYBEE and N.R. SMITH, Circuit Judges, and HUCK,*** District Judge.
*
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).
***
The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
Plaintiff-Appellant Live Group of USA, LLC (“Live Group”) appeals from
the entry of summary judgment in favor of its insurer, Defendant-Appellee Mid-
Century Insurance Co. (“Mid-Century”), on its breach of contract claim. We
review the grant of summary judgment de novo, State Farm Mut. Auto. Ins. Co. v.
Davis, 7 F.3d 180, 182 (9th Cir. 1993), and apply Washington law to this diversity
jurisdiction case. We affirm.
Live Group, the owner of an apartment building damaged in a fire, disputes
the amount it was compensated for its structural damage and business interruption
claims. For its property loss, Live Group was paid $165,600.95—the actual cash
value calculated by Mid-Century ($161,899.83) plus the cost of repairs undertaken
by Live Group ($4,701.12), less Live Group’s deductible ($1,000). Live Group
contends that it is owed an additional approximately $400,000 for future property
repairs, but its policy unambiguously limits its recovery to actual cash value unless
the lost property is actually repaired or replaced. Substantially identical terms have
been upheld by the Washington Supreme Court. See Hess v. N. Pac. Ins. Co., 859
P.2d 586, 589–90 (Wash. 1993). Live Group has offered no evidence that it
undertook repairs entitling it to more than actual cash value, apart from those
repairs already reimbursed. Live Group has also failed to show any dispute as to
the actual cash value determination.
2
As to its business interruption claim, Live Group’s policy covers its losses of
business income until its operations can reasonably be restored. Mid-Century
compensated Live Group for eight months of lost profits ($11,120). Live Group
has not disputed Mid-Century’s determination that the covered period was eight
months, nor has it shown a dispute as to the amount it was paid to compensate it
for its losses in that period. Although Live Group contends that it continues to
suffer business interruption losses, it has not shown coverage for any
uncompensated losses.
No reasonable jury could find Mid-Century breached the insurance policy by
failing to pay Live Group additional amounts for these claims. The judgment of
the district court is AFFIRMED.
3