T-Mobile USA Inc. v. Selective Ins. Co. of America , 908 F.3d 581 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
T-MOBILE USA INC., a No. 17-35932
Washington corporation,
Plaintiff-Appellant, D.C. No.
2:15-cv-01739-JLR
v.
SELECTIVE INSURANCE CERTIFICATION
COMPANY OF AMERICA, ORDER TO THE
Defendant-Appellee. WASHINGTON
SUPREME COURT
Filed November 9, 2018
Before: Susan H. Black, * Richard C. Tallman,
and Carlos T. Bea, Circuit Judges.
Order
*
The Honorable Susan H. Black, United States Circuit Judge for the
Eleventh Circuit, sitting by designation.
2 T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA
SUMMARY **
Insurance Law
The panel certified to the Washington Supreme Court the
following question:
Under Washington law, is an insurer bound
by representations made by its authorized
agent in a certificate of insurance with respect
to a party’s status as an additional insured
under a policy issued by the insurer, when the
certificate includes language disclaiming its
authority and ability to expand coverage?
COUNSEL
Michael A. Moore (argued) and Kelly H. Sheridan, Corr
Cronin Michelson Baumgardner Fogg & Moore LLP,
Seattle, Washington, for Plaintiff-Appellant.
Michael J. Marone (argued), McElroy Deutsch Mulvaney &
Carpenter LLP, Morristown, New Jersey; Jeffrey S. Tindal,
Betts Patterson & Mines, Seattle, Washington; for
Defendant-Appellee.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA 3
ORDER
This case concerns an insurance dispute between T-
Mobile USA Inc. (“T-Mobile USA”) and Selective
Insurance Company of America (“Selective”). After T-
Mobile USA was sued over damage to a building caused by
one of its cellular antennae towers, a dispute arose over
whether T-Mobile USA was entitled to coverage as an
additional insured under a Selective insurance policy taken
out by a contractor that provided services in connection with
the tower’s construction. After Selective denied coverage,
T-Mobile USA filed suit against Selective in state court in
Washington. Selective removed the case to federal district
court based on diversity jurisdiction. After discovery, the
parties filed cross-motions for summary judgment. The
district court granted Selective’s motion for summary
judgment, which resulted in the dismissal of all of T-Mobile
USA’s claims. T-Mobile USA’s subsequent motion for
reconsideration was denied. T-Mobile USA appeals the
district court’s orders granting summary judgment and
denying reconsideration.
This Order certifies to the Washington Supreme Court a
critical question of state law before us—namely, whether,
under Washington law, the rule that an insurer is bound by
representations made by its authorized agents overrides the
rule that certificates of insurance cannot affect insurance
coverage, when the latter rule is echoed by disclaimer
language in the certificate at issue.
I.
Before addressing the certified question, we summarize
the relevant facts.
4 T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA
In 2010, T-Mobile Northeast, LLC (“T-Mobile NE”)—a
wholly owned regional subsidiary of Appellant T-Mobile
USA 1—entered into a Field Services Agreement (“FSA”)
with Innovative Engineering, Inc. (“Innovative”). T-Mobile
NE engaged Innovative to provide services in connection
with the construction of rooftop cellular antennae towers in
New York City, which provide cellular telephone coverage
for T-Mobile users in the area. The FSA included a
provision requiring Innovative to maintain general liability
insurance naming T-Mobile NE as an additional insured, and
required that Innovative provide T-Mobile NE with
certificates of insurance documenting that coverage.
Innovative engaged Selective to provide the insurance
coverage mandated under the FSA. Selective issued the
policy to Innovative, covering the period of January 16,
2012, to January 16, 2013 (the “Policy”).
The Policy contained an Additional Insured (“AI”)
Endorsement that automatically extends “additional
insured” status to any entity with whom Innovative enters
into a written contract requiring Innovative to add that entity
as an additional insured under the Policy (i.e., T-Mobile
NE).
In 2012, Selective’s authorized agent and insurance
broker, the Van Dyk Group, Inc. (“VDG”), issued a
Certificate of Insurance (“COI”) to T-Mobile USA. 2 The
1
T-Mobile USA wholly owns T-Mobile NE, and the parties do not
dispute that T-Mobile NE and T-Mobile USA are separate and distinct
legal entities.
2
Pursuant to a 2007 agreement, Selective delegated authority to
VDG to “act on [Selective’s] behalf” in various ways, including by
“[e]xecuting and issuing binders, policies, and certificates for such
insurance.”
T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA 5
COI stated that T-Mobile USA, as the certificate holder, “is
included as an additional insured” under the Policy. But it
also stated, in capitalized and bolded text, that the COI “is
issued as a matter of information only and confers no rights
upon the certificate holder,” “does not affirmatively or
negatively amend, extend or alter the coverage afforded by”
the Policy, and “does not constitute a contract between the
issuing insurer(s), authorized representative or producer, and
the certificate holder.” The COI further warns that “[i]f the
certificate holder is an ADDITIONAL INSURED, the
policy(ies) must be endorsed” and that “[a] statement on this
certificate does not confer rights to the certificate holder in
lieu of such endorsement(s).”
In 2005, T-Mobile NE’s predecessor, Omnipoint
Communications, Inc. (“Omnipoint”), had leased space on
the roof of a building in New York City to construct a cell
tower, and contracted with Innovative to perform services in
connection with this work. Omnipoint assigned this lease to
T-Mobile NE in 2009, when T-Mobile NE subsumed
Omnipoint. In early 2013, the building owner notified T-
Mobile USA and Innovative of alleged property damage that
resulted from Innovative’s earlier work on the rooftop cell
tower. 3 Innovative tendered this claim directly to Selective,
3
The parties appear to agree that the 2010 FSA is the contract that
governs the relationship between T-Mobile USA, Innovative, and
Selective in this lawsuit, despite the fact that the work performed by
Innovative forming the basis of the underlying lawsuit occurred five
years before the FSA was entered into. On appeal, both parties’
arguments are premised on interpretations of the 2010 FSA. Both parties
have therefore waived any argument that the FSA is not the operative
contract for purposes of this appeal. See Collins v. City of San Diego,
841 F.2d 337, 339 (9th Cir. 1988) (issues not briefed or argued on appeal
are deemed abandoned).
6 T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA
and T-Mobile USA tendered the claim to Innovative with a
request that Innovative “immediately notify [its] insurance
carrier.” Innovative passed that claim on to Selective. In
April 2013, the building owner brought suit against T-
Mobile USA, Omnipoint, and Innovative in the Southern
District of New York. 4
In July, 2013, Selective acknowledged Innovative’s
tender and agreed to defend Innovative in the Underlying
Lawsuit subject to a reservation of rights letter (the “ROR
Letter”). The ROR Letter stated that Selective would defend
Innovative, but took the position that a Professional Services
Exclusion might ultimately preclude coverage. Later,
Selective denied T-Mobile USA’s tender in an email vaguely
referencing the ROR Letter. When representatives of T-
Mobile USA followed up with Selective to question the
coverage denial, Selective’s coverage counsel stated that
Selective would not be defending T-Mobile USA because
“T-Mobile does not appear in the Selective Policy named as
an insured” and “[i]t does not qualify as an additional
insured.” (emphasis removed).
T-Mobile USA—which is headquartered in Seattle,
Washington—brought suit against Selective in the Superior
Court for King County, Washington, on September 15, 2015,
4
See Va. Props., LLC v. T-Mobile Ne. LLC, Case No. 2:13-cv-3493
(S.D.N.Y.) (the “Underlying Lawsuit”). After substantial litigation, the
building owner’s claims were eventually dismissed with prejudice as a
result of serious discovery misconduct. See Va. Props., LLC v. T-Mobile
Ne. LLC, 865 F.3d 110, 113 (2d Cir. 2017). The building owner appealed
the dismissal to the Second Circuit, which vacated the dismissal and
remanded the action back to the district court. See id. at 123. The parties
then participated in mediation, and reached a settlement in February
2018. See Va. Props., LLC v. T-Mobile Ne. LLC, Case No. 2:13-cv-3493,
Dkt. No. 217 (S.D.N.Y. 2018).
T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA 7
asserting claims for breach of contract, declaratory
judgment, common law insurance bad faith, common law
attorney’s fees, and violation of consumer fraud statutes. T-
Mobile USA’s complaint alleged that T-Mobile USA
qualified as an additional insured under the Policy. Selective
removed the action to the United States District Court for the
Western District of Washington on November 4, 2015,
invoking diversity jurisdiction under 28 U.S.C. § 1332.
After discovery, T-Mobile USA moved for partial
summary judgment, arguing that the district court should
enter judgment in T-Mobile USA’s favor on its breach of
contract and declaratory judgment claims because, inter alia,
the 2012 COI issued by Selective’s authorized agent states
that T-Mobile USA is an additional insured under the Policy.
Selective filed a cross-motion for summary judgment along
with its opposition to T-Mobile USA’s motion, requesting
that T-Mobile USA’s claims be dismissed in their entirety
because, inter alia, the 2012 COI could not confer coverage
on T-Mobile USA. The district court denied T-Mobile
USA’s partial motion for summary judgment and granted
Selective’s motion for summary judgment, ultimately
dismissing all of T-Mobile USA’s claims.
II.
We now turn to the issue that is the basis of our
certification order.
T-Mobile USA argues that the 2012 COI that VDG
issued to T-Mobile USA confers additional-insured status on
T-Mobile USA under the Policy. T-Mobile USA does not
contend that the COI is relevant to interpreting the Policy.
Rather, T-Mobile USA contends that Selective is bound by
VDG’s representation in the COI that T-Mobile USA is an
additional insured.
8 T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA
There are two competing principles under Washington
insurance law that are at loggerheads here. The first is that
under Washington law, “an insurance company is bound by
all acts, contracts, or representations of its agent, whether
general or special, which are within the scope of [the
agent’s] real or apparent authority.” Chicago Title Ins. Co.
v. Wash. State Office of Ins. Comm’r, 309 P.3d 372, 379
(Wash. 2013) (quoting Pagni v. N.Y. Life Ins. Co., 23 P.2d
6, 16 (Wash. 1933)).
The second is that under Washington law, “the purpose
of issuing a [COI] is to inform the recipient thereof that
insurance has been obtained.” Postlewait Constr., Inc. v.
Great Am. Ins. Cos., 720 P.2d 805, 807 (Wash. 1986).
Accordingly, under Washington law, a COI is not the
functional equivalent of an insurance policy, and it therefore
cannot be used to amend, extend, or alter the coverage
provisions of an insurance policy. See id.; Int’l Marine
Underwriters v. ABCD Marine, LLC, 267 P.3d 479, 484
(Wash. Ct. App. 2011).
The Washington Supreme Court has not spoken on how
these two legal principles, each pointing to different
outcomes, can be reconciled on the facts presented in this
case. On the one hand, VDG is Selective’s duly authorized
agent empowered to issue insurance binders confirming
coverage, and therefore Selective should be bound by
VDG’s representations regarding T-Mobile USA’s status as
an additional insured under the Policy, which were contained
in COIs issued on Selective’s behalf. 5 See Chicago Title Ins.
5
Selective argues that VDG was not acting within the scope of its
authority because, while the agency agreement between Selective and
VDG authorizes VDG to issue COIs, it states that the COIs must reflect
the then-current terms and limits of the relevant policy. Thus, while
T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA 9
Co., 309 P.3d at 379. On the other hand, those
representations appear in a document that the Washington
Supreme Court has unequivocally stated cannot alter or
amend the coverage provisions of an insurance policy. See
Postlewait, 720 P.2d at 807; ABCD Marine, LLC, 267 P.3d
at 484. The disclaimer language contained in the 2012 COI
also reflects this latter view on the legal effect of COIs.
When the highest court of a state has not directly spoken
on a matter of state law, a federal court sitting in diversity
must generally use its “own best judgment in predicting how
the state’s highest court would decide the case.” Fiorito
Bros., Inc. v. Fruehauf Corp., 747 F.2d 1309, 1314 (9th Cir.
1984). In making this prediction, the federal court “must
ascertain from all available data what the state law is and
apply it.” Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir.
1982). “An intermediate state appellate court decision is a
‘datum for ascertaining state law which is not to be
VDG had actual authority to issue the 2012 COI, Selective argues that
VDG had authority to do so only to the extent that its representations
were consistent with the exact terms of the Policy. While the district
court did not reach this question, Washington law is clear that “where an
agent acts within its authority, the principal cannot excuse itself from
vicarious liability through an undisclosed private arrangement that
purports to restrict that authority.” Chicago Title Ins. Co., 309 P.3d at
379. VDG issued the 2012 COI pursuant to its delegated authority as
Selective’s authorized agent, authority which expressly extended to
“executing and issuing . . . certificates for [] insurance.” The 2012 COI
was signed by VDG as Selective’s “Authorized Representative.” VDG’s
principal also testified that VDG had previously issued COIs for
Innovative policies directly to T-Mobile USA on Selective’s behalf, and
that Selective never objected to VDG’s issuance of those COIs (or any
other COIs issued by VDG). There is thus no genuine dispute of material
fact over whether VDG acted with at least apparent authority in issuing
the COI that clearly lists T-Mobile USA as an additional insured under
the policy.
10 T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA
disregarded by a federal court unless it is convinced by other
persuasive data that the highest court of the state would
decide otherwise.’” Id. (quoting West v. Am. Tel. & Tel. Co.,
311 U.S. 223, 237 (1940)).
As the district court noted, a Washington appellate court
considered an issue similar to the one presented here, in
International Marine Underwriters v. ABCD Marine, LLC,
267 P.3d 479, 484 (Wash. Ct. App. 2011). In ABCD Marine,
Albert Boogaard was injured by an employee of Northland
Services Inc. (“NSI”) while Boogaard was providing
welding services to NSI on behalf of ABCD Marine, LLC.
Id. at 481. In the welding services contract between ABCD
Marine and NSI, ABCD Marine assumed NSI’s liability
with respect to ABCD’s work. Id. The contract also
required ABCD to name NSI as an additional insured under
ABCD’s insurance policy, but this was apparently not done.
Id. ABCD’s insurance broker did, however, issue COIs to
two companies related to NSI, noting that they were
additional insureds under ABCD’s policy. Id. at 484. After
Boogard was injured, he sued the insurance company for
denying his claim, arguing that the COIs made NSI and its
related companies additional insureds under ABCD’s policy.
Id. at 481–84. The superior court granted summary
judgment to the insurer, and Boogaard appealed. Id. at 482.
The Washington Court of Appeals was tasked with deciding
whether the two companies that had been issued COIs
constituted additional insureds based on the specific
representations in the COIs, notwithstanding the fact that
they did not otherwise qualify as additional insureds under
the relevant policy. Id. The Court of Appeals held that the
two companies were not additional insureds, citing to
Postlewait for the proposition that COIs are issued only to
inform the recipient that insurance has been obtained, and
that they confer no additional rights on the holder. Id. at 484.
 T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA 11
The Washington Court of Appeals reiterated that under
Washington law, COIs “[can]not amend, extend or alter the
coverage afforded by the polic[y].” Id.
The district court in the instant case cited to ABCD
Marine as evidence that the Washington Supreme Court
would likely hold that VDG’s COIs similarly do not confer
additional insured status on T-Mobile USA, despite the
representations in the COIs. In ABCD Marine, however, the
insurance broker that issued the COIs was not an authorized
agent of the insurer, but rather was the insured’s own agent.
267 P.3d at 484. Therefore, unlike the instant case, ABCD
Marine did not present a question regarding how agency
principles interact with the legal effect of COIs under
Washington insurance law.
Since no Washington court has addressed this important
intersection of two disparate principles of Washington
insurance law when they conflict, it is difficult to conclude
with any certainty whether the Washington rule on the legal
effect of COIs trumps the Washington rule on the legal
effect of coverage representations made by an insurer’s
authorized agent.
III.
Although the parties contentiously argue over an array of
issues, a potentially dispositive issue in this case is whether
Selective is bound by VDG’s representation in the 2012 COI
that T-Mobile USA was an additional insured under the
Policy. Washington law conflicts on this issue, and its
resolution may entirely dispose of T-Mobile USA’s appeal.
Further, this issue potentially affects an untold number of
Washington citizens and businesses who have been issued
similar certificates of insurance, and it is therefore a matter
of important public policy. See Kremen v. Cohen, 325 F.3d
12 T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA
1035, 1037 (9th Cir. 2003) (“The certification procedure is
reserved for state law questions that present significant
issues, including those with important public policy
ramifications, and that have not yet been resolved by the
state courts.”).
Because this critical question of state law is not settled,
we have concluded that the appropriate course of action is to
certify this issue to the Washington Supreme Court, and
respectfully request that it provide the answer. 6 See Lehman
Bros. v. Schein, 416 U.S. 386, 391 (1974) (noting that federal
certification of state law questions “helps build a cooperative
judicial federalism,” and is “particularly appropriate” for
novel or unsettled questions of state law). If the Washington
Supreme Court concludes that Selective is bound by the
additional insured representation in the 2012 COI, we will
reverse the district court’s orders granting summary
judgment and dismissal on that threshold basis, and remand
for further proceedings.
IV.
We respectfully certify to the Washington Supreme
Court the following question:
Under Washington law, is an insurer bound
by representations made by its authorized
6
While the parties did not request that the district court certify this
question below, we have the authority to certify a question sua sponte.
See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., 294 F.3d 1085,
1086 (9th Cir. 2002) (“[W]e have an obligation to consider whether
novel state-law questions should be certified—and we have been
admonished in the past for failing to do so.”) (citation omitted); Wash.
Rev. Code § 2.60.030(1) (“Certificate procedure may be invoked by a
federal court upon its own motion . . . .”).
T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA 13
agent in a certificate of insurance with respect
to a party’s status as an additional insured
under a policy issued by the insurer, when the
certificate includes language disclaiming its
authority and ability to expand coverage?
We do not intend our framing of this question to restrict
the Washington Supreme Court’s consideration of any issues
that it determines are relevant. The Washington Supreme
Court may, in its discretion, reformulate the question. Broad
v. Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th
Cir. 1999). If the Washington Supreme Court accepts
review of the certified question, we designate appellant T-
Mobile USA as the party to file the first brief pursuant to
Washington Rule of Appellate Procedure (“WRAP”)
16.16(e)(1).
The clerk of our court is hereby ordered to transmit
forthwith to the Washington Supreme Court, under official
seal of the United States Court of Appeals for the Ninth
Circuit, a copy of this order and all relevant briefs and
excerpts of record pursuant to Washington Revised Code
Sections 2.60.010 through 2.60.030 and WRAP 16.16. The
record contains all matters in the pending case deemed
material for consideration of the local law question certified
for answer.
Further proceedings in our court are stayed pending the
Washington Supreme Court’s decision whether it will accept
review, and if so, receipt of the answer to the certified
question. This case is withdrawn from submission and the
clerk is directed to close this docket administratively,
pending further order from this court. When the Washington
Supreme Court decides whether to accept the certified
question (or orders briefing on the question), the parties shall
14 T-MOBILE USA V. SELECTIVE INS. CO. OF AMERICA
file a joint report informing us of the decision. The parties
shall also file a joint status report notifying us when briefing
has been completed, and when a date is set for oral argument
before the Washington Supreme Court. The parties shall
finally file a joint status report every six months after the
date that the Washington Supreme Court accepts the
certified question (or orders briefing thereon), or more
frequently if circumstances warrant.
QUESTION CERTIFIED; SUBMISSION
WITHDRAWN and PROCEEDINGS STAYED.
FOR THE COURT:
Sidney R. Thomas
Chief Judge
Ninth Circuit Court of Appeals