Yair Jackoby v. Geico General Ins Co , 596 F. App'x 544 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 09 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YAIR JACKOBY, No. 12-16917
Plaintiff-Appellant, D.C. No. 3:11-cv-0307-LRH-
WGC
v.
GEICO GENERAL INSURANCE MEMORANDUM*
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted November 21, 2014*
San Francisco, California
Before: GOULD and WATFORD, Circuit Judges, and OLIVER, Chief District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
Yair Jackoby (“Jackoby”) appeals the order of the district court denying him
summary judgment and granting summary judgment in favor of GEICO General
Insurance Company (“GEICO”) in Jackoby’s action for underinsured/uninsured
motorist (“UIM”) benefits. Jackoby maintains that the anti-stacking provision in his
GEICO automobile insurance policy is ambiguous and did not preclude the stacking
of multiple insurance coverage limits when he was injured in an accident while riding
a bicycle.1 We review the district court’s grant of GEICO’s motion and the denial of
Jackoby’s motion de novo. CRM Collateral II, Inc. v. TriCounty Metro. Transp. Dist.,
669 F.3d 963, 968 (9th Cir. 2012). We reverse.
I
Under Nevada law, a valid anti-stacking provision must be clear and
prominently displayed, and the policyholder must not have purchased separate
coverage on the same risk. Nev. Rev. Stat. § 687B.145(1); Nationwide Mut. Ins. Co.
v. Coatney, 42 P.3d 265, 267 (Nev. 2002). Anti-stacking language is unambiguous
if it is “truly comprehensible to the average insured.” Bove v. Prudential Ins. Co. of
Am., 799 P.2d 1108, 1110 (Nev. 1990). Furthermore, “‘any ambiguity or uncertainty
in an insurance policy must be construed against the insurer and in favor of the
1
The parties are familiar with the facts of this case, so we will not
recount them here, except as necessary to explain our decision.
2
insured.’” Century Sur. Co. v. Casino W., Inc., 677 F.3d 903, 908 (9th Cir. 2012)
(quoting Benchmark Ins. Co. v. Sparks, 254 P.3d 617, 621 (Nev. 2011)).
The district court erred when it determined that the anti-stacking provision was
clear and unambiguous. The anti-stacking provision at issue states:
IF YOU OR ANY OTHER INSURED IS IN AN
ACCIDENT:
(A) IN AN INSURED AUTO WE WILL NOT PAY
MORE THAN THE LIMIT OF COVERAGE FOR THAT
PARTICULAR INSURED AUTO.
(B) IN A MOTOR VEHICLE OTHER THAN YOUR
INSURED AUTO OR WHILE AS A PEDESTRIAN, WE
WILL NOT PAY MORE THAN THE LIMIT OF
COVERAGE WHICH YOU HAVE ON ANY ONE OF
YOUR INSURED AUTOS.
THIS LIMIT OF COVERAGE APPLIES REGARDLESS
OF THE NUMBER OF POLICIES, INSUREDS, YOUR
INSURED AUTOS, CLAIMS MADE OR MOTOR
VEHICLE INVOLVED IN THE ACCIDENT.
COVERAGES ON OTHER MOTOR VEHICLES
INSURED BY US CANNOT BE ADDED OR STACKED
ON THE COVERAGE OF YOUR INSURED AUTO
THAT COVERS THE LOSS.
While it is clear that the final sentence limits stacking in instances where the
policyholder is involved in an accident while in a motor vehicle or as a pedestrian, it
is not clear whether that prohibition on stacking applies in the many different factual
circumstances not specified. The first sentence of the final paragraph explicitly refers
3
back to Sections A and B. Because the final sentence of the paragraph is not set off
from the preceding sentence, a reasonable insured would read the final sentence as
also referring to Sections A and B. A reasonable insured would not presume that the
final sentence limited stacking in factual circumstances not specified in Sections A
and B, such as in this case, where an individual is involved in an accident while riding
a bicycle. Construing the ambiguity in the provision against the insurer, this court
concludes that the provision does not clearly cover such circumstances and, therefore,
does not comply with Nev. Rev. Stat. § 687B.145(1). Thus, the anti-stacking
provision is void and unenforceable. Coatney, 42 P.3d at 267.
II
This court acknowledges that it is bound by decisions of the Nevada Supreme
Court and must “approximate state law as closely as possible.” Gee v. Tenneco, Inc.,
615 F.2d 857, 861 (9th Cir. 1980). However, this court does not find, as argued by
GEICO, that Bove and Coatney are binding or persuasive authority regarding whether
the anti-stacking provision is ambiguous under the circumstances of this case. While
it is true that Bove and Coatney found anti-stacking provisions employing language
similar to that in this case to be unambiguous and in compliance with Nev. Rev. Stat.
§ 687B.145(1), those cases are distinguishable because in each case the insured was
injured while riding in an automobile, a circumstance explicitly covered by the anti-
4
stacking provision. See Bove, 799 P.2d at 1109–10; Coatney, 42 P.3d at 266–68.
Neither side cited to any authority where a plaintiff sued for UIM benefits after having
been injured while on a bicycle or in a factual scenario not explicitly covered under
the terms of the anti-stacking provision.
III
We reverse the district court’s order granting GEICO’s motion for summary
judgment and denying Jackoby’s cross-motion for summary judgment. We remand
this case to the district court for a determination of Jackoby’s actual damages.
REVERSED and REMANDED.
5
FILED
Jackoby v. GEICO General Insurance Co., 12-16917 JAN 09 2015
MOLLY C. DWYER, CLERK
GOULD, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent from the majority’s decision to reverse the district
court’s grant of summary judgment in favor of GEICO and denial of summary
judgment for Jackoby. Nevada interprets ambiguities in an insurance contract
against the drafter, here the insurer. Century Sur. Co. v. Casino W., Inc., 329 P.3d
614, 616 (Nev. 2014). But I would affirm and conclude that Geico properly denied
stacking Jackoby’s UIM coverages. All factors relevant under Nevada law when
construing an ambiguous insurance policy, including an aim to effectuate the
“insured’s reasonable expectations,” in my view support denying Jackoby
unwarranted coverage in this case. Century Sur. Co., 329 P.3d at 616 (emphasis
added); see Nat’l Union Fire Ins. Co. v. Ceasars Palace Hotel & Casino, 792 P.2d
1129, 1130 (Nev. 1990). I do not believe Jackoby had a “reasonable expectation”
to triple his UIM benefits simply because he was on a bicycle instead of in a car or
on foot when injured. Even if “bicycle” had been expressly listed in his policy, we
would have the same problem if Jackoby had instead been on a skateboard or in a
rickshaw.
Further, I do not believe that the majority’s factual distinction of this case
from the Nevada Supreme Court’s decisions in Nationwide Mut. Ins. Co. v.
1
Coatney, 42 P.3d 265 (Nev. 2002) and Bove v. Prudential Ins. Co. of Am., 799 P.2d
1108 (Nev. 1990) approximates state law “as closely as possible.” U.S. Fid. &
Guar. Co. v. Lee Investments, LLC, 641 F.3d 1126, 1133 (9th Cir. 2011). I do not
conclude that the Nevada Supreme Court, which held in Coatney and Bove that
substantially similar anti-stacking language was unambiguous, would distinguish
this case on the grounds stated by the majority, which distinguishes this case from
Coatney and Bove without discussing why its factual distinction supports a
different result. Instead, I would consider the results in Coatney and Bove to point
strongly in the opposite direction in this case. The anti-stacking language in
Jackoby’s UIM policy was clear under those decisions, and we should hold that the
Nevada Supreme Court likely would continue along the same well-beaten path if it
encountered a case like Jackoby’s. I am concerned that the majority’s decision to
distinguish Nevada precedent in this case puts the decision in conflict with policies
of federalism and those underlying Erie v. Tompkins, 304 U.S. 64 (1938). The
result is not only an injustice to the insurer in this case, but a risk that insurers
writing policies to consumers in the states within our circuit will have to charge
higher premiums to cover the un-discerned risks flowing from our decision today
in this case.
2