Spano v. Safeco Insurance , 511 F.3d 1206 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORI SPANO; ALAN OPOIEN; 
PATRICIA MCGRATH; JOAN HORTON,
Plaintiffs,
and
CHARLES BURR; SHANNON MASSEY,
Plaintiffs-Appellants, No. 04-35313
v.  D.C. No.
CV-01-01464-AJB
SAFECO CORPORATION; SAFECO
INSURANCE CO. OF AMERICA; OPINION
AMERICAN STATE INSURANCE
COMPANY; SAFECO INSURANCE
COMPANY OF ILLINOIS; SAFECO
INSURANCE COMPANY OF OREGON,
Defendants-Appellees.

On Remand From The United States Supreme Court
Filed January 9, 2008
Before: Stephen Reinhardt, Marsha S. Berzon, and
Jay S. Bybee, Circuit Judges.
Per Curiam Opinion
337
338 SPANO v. SAFECO CORP.
OPINION
PER CURIAM:
This appeal comes before us on remand from the Supreme
Court. See Safeco Ins. Co. of Am. v. Burr, 127 S. Ct. 2201
(2007). The Court affirmed our holding in Reynolds v. Hart-
ford Financial Services Group, Inc., 435 F.3d 1081 (9th Cir.
2006), that liability under 15 U.S.C. § 1681n(a) for “willfully
fail[ing] to comply” with the Fair Credit Reporting Act
(FCRA) includes reckless disregard of statutory duties. Burr,
127 S. Ct. at 2208. The Court also agreed with our holding that
quoting or charging a first-time premium can be “an increase
in any charge for . . . any insurance, existing or applied for.”
Id. at 2210 (quoting 15 U.S.C. § 1681a(k)(1)(B)(i)). In addi-
tion, the Court held that notice is required only when consid-
eration of a consumer’s credit report is a necessary condition
for the increased rate. Id. at 2212 (citing 15 U.S.C.
§ 1681m(a)). Finally, reversing our holding, the Court held
that the baseline for determining whether a first-time rate is
a disadvantageous increase is the rate the applicant would
have received had the company not taken his credit score into
account. Id. at 2213.
 SPANO v. SAFECO CORP. 339
The Court held that Safeco was not liable because its mis-
reading of the statute was not reckless, and therefore was not
“willful.” Id. at 2215-16.
Plaintiffs did not raise on appeal any basis for liability other
than the theory rejected by the Court. Therefore we affirm the
district court’s summary judgment.
AFFIRMED.