Michael Dullen v. American Automobile Assoc. , 696 F. App'x 312 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL R. DULLEN, PR Est. of No. 16-35699
Karl I. Thumma (Deceased 02/17/2014);
KAREN R. DULLEN, D.C. No. 4:16-cv-00003-SLG
Plaintiffs-Appellants,
v. MEMORANDUM*
AMERICAN AUTOMOBILE
ASSOCIATION, AKA
AAA Life Insurance Company,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted August 17, 2017**
Anchorage, Alaska
Before: GRABER, CLIFTON, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiffs-Appellants Karen R. Dullen and Michael R. Dullen appeal the
summary judgment entered in favor of AAA. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
The struck-by-vehicle requirement of the decedent’s travel accident
insurance policies was not satisfied by the decedent’s inhalation of carbon
monoxide emitted from his vehicle. First, the “ordinary and popular” interpretation
of “struck,” a term not defined in the operative policies, is not so broad as to apply
to the inhalation of air. Jarvis v. Aetna Cas. & Sur. Co., 633 P.2d 1359, 1363
(Alaska 1981). Particularly in the context of automobile accidents, Plaintiffs’
proposed interpretation of “struck” as including any physical contact on a
molecular level surpasses common comprehension and would require the court to
impose “fine distinctions which few can understand until pointed out by lawyers
and judges.” INA Life Ins. Co. v. Brundin, 533 P.2d 236, 241 (Alaska 1975)
(quoting Burr v. Commercial Travelers Mut. Acc. Ass’n of Am., 67 N.E.2d 248,
252 (N.Y. 1946)).
Second, the struck-by-vehicle requirements of the decedent’s policies are not
ambiguous. Plaintiffs’ interpretation is both unreasonable and unsupported by “the
contract as a whole and all extrinsic evidence.” Nelson v. Progressive Casualty Ins.
Co., 162 P.3d 1228, 1234 (Alaska 2007) (internal quotation marks omitted).
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Further, Plaintiffs’ proposed interpretation of “struck” extends coverage beyond
the risks reasonably contemplated by the insured and impermissibly restricts an
insurer’s ability to limit liability through plain language. See id. at 1235 n.44
(stressing that a court “should not do violence to the plain terms . . . by artificially
creating ambiguity where none exists” (internal quotation marks omitted)).
Lastly, Plaintiffs present insufficient evidence demonstrating that the
decedent could have held an objectively reasonable expectation of coverage in the
circumstances. Devine v. Great Divide Ins. Co., 350 P.3d 782, 786 (Alaska 2015).
Plaintiffs’ supporting “case law interpreting similar provisions,” while factually
related, centers on different policy provisions than those at issue here, provides no
explicit holding as to a struck-by-vehicle requirement and, further, was expressly
disapproved of by a higher court. Id; see Kelley v. Integon Indem. Corp., 320
S.E.2d 526, 529 (Ga. 1984) (disapproving of Jones v. Transamerica Ins. Co., 268
S.E.2d 444 (Ga. Ct. App. 1980)).
Because we conclude that the decedent was not “struck” by his vehicle for
the purposes of the travel accident insurance policies in question, we need not
address the second, independent requirement that the decedent qualify as a
pedestrian at the time of his death.
AFFIRMED.
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