Marcus Yano v. Geico , 620 F. App'x 621 ( 2015 )

FILED
NOT FOR PUBLICATION OCT 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCUS YANO, No. 12-17479
Plaintiff - Appellant, D.C. No. 1:11-cv-00745-SOM-
BMK
v.
GOVERNMENT EMPLOYEES MEMORANDUM*
INSURANCE COMPANY; DOES 1 -
100, inclusive, and each of them,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Submitted October 16, 2015**
Honolulu, Hawaii
Before: O’SCANNLAIN, TALLMAN, and M. SMITH, Circuit Judges.
After Marcus Yano was injured in a motorcycle accident in September of
2006, he sought uninsured motorist coverage under his father’s policy, which was
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
issued by Government Employees Insurance Company (GEICO). The district
court properly granted summary judgment against him where Yano was unable to
show that he was a resident of his father’s household entitled to coverage under the
policy. Nor did Yano establish a prima facie case that GEICO investigated his
claim in bad faith. We have jurisdiction under 28 U.S.C. § 1291, and on de novo
review, we affirm.
1. Under the policy issued to Yano’s father, an “insured” includes
“relatives of [the named insured] if residents of his household.” A “relative” is “a
person related to you who resides in your household.”1
Mere documentation showing Yano’s parents’ address is insufficient. See
Park v. GEICO, 974 P.2d 34, 36, 38 n.3 (Haw. 1999) (finding plaintiff was
resident of insured’s household even though documents including “voter
registration, bank loan records, insurance underwriting records, and
correspondence” listed address different from insured’s). What matters is whether
Yano can show an “intention to remain a member of the family household.” See
1
The district court cited the definition of “relative” from Section 2 of the
GEICO policy held by Yano’s father. Yano, however, sought uninsured motorist
coverage under Section 4 of the policy. Because Section 4 incorporates by
reference the definition of “relative” in Section 1, that is the definition of “relative”
applicable here.
2
Mikelson v. United Servs. Auto. Ass’n, 111 P.3d 601, 611 (Haw. 2005). He cannot
do so on this record.
Standing alone, frequent, even daily visits to one’s parents or keeping
clothing at their home does not show an intent to return. See Mun Quon Kok v.
Pac. Ins. Co., 462 P.2d 909, 911 (Haw. 1969) (finding father and son did not share
a household when there was “no showing of temporary absence, no showing that
appellant ever lived at named insured’s residence, no showing of support beyond
two meals” the son brought the father daily); Mikelson, 111 P.3d at 612 (finding
that father and son shared a household when, inter alia, son was “completely
financially dependent” and father declared son as a dependent on tax returns).
At the time he was hurt, Yano was living at an apartment in Honolulu and
not with his father. He was financially independent, fully employed, and saving
money to buy a house. Yano was not “temporarily absent” from his father’s
home, waiting to return. See Mikelson, 111 P.3d at 611-14 (finding that college
student, like someone serving military duty, was “temporarily absent” from
father’s household). In fact, years before the accident, Yano was living with his
first wife, apart from his parents. He then went to serve in Iraq. When his
marriage ended during his deployment and he returned to Hawaii, Yano moved
into his father’s home. He moved out roughly four months later, and nothing in the
3
record indicates he intended to move back in. Accordingly, Yano’s temporary
residence was not his Honolulu apartment but his father’s home.
2. GEICO did not act in bad faith by failing to review documents, such as
Yano’s Statement of Residency, and by belatedly interviewing Yano’s parents.
Yano has not sufficiently explained how GEICO’s interpretation of the resident
relative provision in his father’s policy was unreasonable in light of Yano’s
interview with the GEICO investigator.2 See Best Place, Inc. v. Penn America Ins.
Co., 920 P.2d 334, 347 (Haw. 1996) (“[C]onduct based on an interpretation of the
insurance contract that is reasonable does not constitute bad faith.”).
Yano told the GEICO investigator that he “moved out” of his parents’ home
and “moved into” his apartment in Honolulu months before the accident. He
repeatedly stated that he was “living” in the apartment when the accident occurred
and that he would “visit” his parents and have dinner at their home when they
would “invite” him. GEICO could reasonably find he was not a resident of his
father’s household.
2
We reject the conclusions of Yano’s expert that GEICO’s investigation was
unreasonable and conducted in bad faith because these are questions of law properly
decided by courts, not experts. See McHugh v. United Servs. Auto. Ass’n, 164 F.3d
451, 454 (9th Cir. 1999).
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3. GEICO’s interviews of Yano’s parents in 2011 were not improper
depositions. Because they were not taken in accordance with the formal
requirements of Federal Rules of Civil Procedure 28(a) or 30(b), they were not
depositions at all.
4. Yano has presented no facts supporting his claim of intentional infliction
of emotional distress.
AFFIRMED.
5