Fuller v. Safeco Ins. Co. of Oregon ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT FULLER and JANET FULLER, No. 16-35289
husband and wife,
D.C. No. 3:15-cv-05489-RBL
Plaintiffs-Appellants,
v. MEMORANDUM*
SAFECO INSURANCE COMPANY OF
OREGON, a foreign insurer,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted May 9, 2018
Seattle, Washington
Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM,** Chief District
Judge.
Robert and Janet Fuller’s (the Fullers) home became uninhabitable because
of a fire on January 31, 2015. Seeking to recover for the damage to their home, the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
Fullers sought coverage from their insurance provider, Safeco Insurance Company
of Oregon (Safeco). But Safeco denied coverage stating that the Fullers’ policy
had been cancelled effective January 29, 2015. The Fullers sued Safeco to obtain
coverage, and Safeco moved for summary judgment arguing that as a matter of law
the policy was cancelled in accord with Washington Revised Code § 48.18.290.
The district court granted summary judgment for Safeco. The Fullers appeal. We
have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the grant of summary
judgment de novo, Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011), we
reverse.
The Fullers argue that the district court erred by concluding that Safeco had
shown prima facie evidence that the Fullers’ notice of cancellation was mailed
under the requirements of Washington Revised Code § 48.18.290. The Fullers also
argue that the non-receipt of the notice of cancellation creates a dispute of material
fact that should have precluded the grant of summary judgment. We agree.
Under Washington Revised Code § 48.18.290, termination of an insurance
policy is only effected if (1) the insurer delivers or mails notice of cancellation to
the named insured, and (2) the notice includes the reasons for cancellation. Wash.
Rev. Code § 48.18.290(1)(a). “The affidavit of the individual making or
supervising such a mailing, shall constitute prima facie evidence of such facts of
the mailing . . . .” Wash. Rev. Code § 48.18.290(3). Here, John Mota, a Shift
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Manager for Operation Support at Safeco, attested to the mailing of the
cancellation notice. But Mota testified that he did not work during the shift that
the mailing was made. Because Mota was not the individual supervising the
mailing of the notice to the Fullers, Mota’s affidavit could not establish prima facie
evidence of mailing. The district court erred by relying on Mota’s affidavit as
conclusive evidence of mailing.
Because Safeco did not provide prima facie evidence of mailing, Safeco was
not entitled to summary judgment if the Fullers’ evidence gave rise to a genuine
issue of material fact as to whether the mailing had occurred. Blomquist v. Grays
Harbor Cty. Med. Serv. Corp., 296 P.2d 319, 321 (Wash. 1956) (concluding that
the burden is on the insurer to prove that the policy was cancelled). The Fullers’
and their insurance agent’s non-receipt of the cancellation notice, in the absence of
prima facie evidence of mailing, created a dispute of material fact about whether
the cancellation notice was sent. We reverse the district court’s grant of summary
judgment in favor of Safeco on all of the Fullers’ claims and remand.
REVERSED and REMANDED.
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