Tomlinson Ex Rel. Young v. GEICO General Insurance , 433 F. App'x 499 ( 2011 )


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  •                                                                             FILED
    MAY 09 2011
    NOT FOR PUBLICATION
    MOLLY C. DWYER, CLERK
    U .S. C O U R T OF APPE ALS
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JERRY P. TOMLINSON, by and through               No. 10-35376
    KARA YOUNG, Conservator and Co-
    Guardian for Jerry P. Tomlinson, a               D.C. No. 4:09-cv-00030-RRB
    disabled person, and ALAYNA R.
    BETCHER,
    MEMORANDUM *
    Plaintiffs - Appellants,
    v.
    GEICO GENERAL INSURANCE
    COMPANY,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the District of Alaska
    Ralph R. Beistline, Chief District Judge, Presiding
    Submitted May 4, 2011 **
    Anchorage, Alaska
    Before: ALARCÓN, GRABER, and BYBEE, Circuit Judges.
    *
    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).
    Jerry P. Tomlinson, by and through Kara Young, Conservator and Co-
    Guardian for Tomlinson, a disabled person, appeals from the district court’s order
    denying his motion for summary judgment and granting summary judgment to
    defendant GEICO General Insurance Company (“GEICO”).1 He disputes the
    district court’s interpretation of the term “temporary substitute auto” in the GEICO
    automobile insurance policy covering Anneke Merritt. He also appeals from the
    district court’s order denying remand to the state court, on the grounds that the
    district court lacked jurisdiction under 
    28 U.S.C. § 1332
     or, alternatively, that the
    district court’s exercise of jurisdiction was improper under Brillhart v. Excess
    Insurance Co. of America, 
    316 U.S. 491
     (1942). We affirm.
    I
    Tomlinson contends the district court lacked subject matter jurisdiction over
    this matter. He asserts that, because the $75,000 amount-in-controversy threshold
    for a diversity action has not been met, the district court erred in denying his
    motion to remand. “The existence of subject matter jurisdiction is a question of
    law reviewed de novo.” Reeb v. Thomas, ___ F.3d ___, No. 09-35815, 
    2011 WL 723106
    , at *1 (9th Cir. Mar. 3, 2011).
    1
    Although Alayna Betcher is the real party-in-interest, Betcher was neither
    an active participant in the litigation before the district court nor is she active in
    this appeal.
    2
    In an action for declaratory relief, where “the applicability of . . . liability
    coverage to a particular occurrence is at issue, the amount in controversy is the
    value of the underlying potential tort action.” Budget Rent-a-Car, Inc. v.
    Higashiguchi, 
    109 F.3d 1471
    , 1473 (9th Cir. 1997). The agreement between
    Tomlinson and Betcher, which Tomlinson attached as Exhibit 2 to his complaint
    and “incorporated [therein] by reference as if set forth in full,” states that
    Tomlinson reserves the right to seek damages against Betcher with respect to
    Merritt’s GEICO policy up to the liability cap, which is $100,000. As this amount
    exceeds the $75,000 threshold for diversity jurisdiction, 
    28 U.S.C. § 1332
    (a), the
    district court did not err in denying Tomlinson’s motion to remand for a lack of
    subject matter jurisdiction.
    II
    Tomlinson argues that, if the district court had jurisdiction, it abused its
    discretion in declining to abstain and remand to state court pursuant to Brillhart,
    
    316 U.S. 491
    . “[W]e review discretionary decisions about the propriety of hearing
    declaratory judgment actions for abuse of discretion.” Principal Life Ins. Co. v.
    Robinson, 
    394 F.3d 665
    , 669 (9th Cir. 2005).
    The Brillhart factors do not weigh in favor of abstention. Although the
    issue here is one of state law, there is no parallel state court action pending, and
    3
    removal alone is not indicative of forum-shopping. See GEICO v. Dizol, 
    133 F.3d 1220
    , 1225 & n.5 (9th Cir. 1998) (en banc) (identifying factors relevant to whether
    abstention is appropriate under Brillhart); see also Huth v. Hartford Ins. Co. of
    Midwest, 
    298 F.3d 800
    , 804 (9th Cir. 2002) (forum-shopping not a concern where
    one party prefers state court and the other federal). The district court did not abuse
    its discretion in declining to abstain and remand.
    III
    On the merits, Tomlinson contends the district court erred in holding that
    Betcher’s car was not a “temporary substitute auto” under the terms of Merritt’s
    auto insurance policy with GEICO with respect to the July 4, 2007 collision. “The
    meaning and interpretation of an insurance contract is a question of law reviewed
    de novo.” Stanford Univ. Hosp. v. Fed. Ins. Co., 
    174 F.3d 1077
    , 1083 (9th Cir.
    1999). We also review de novo a grant of summary judgment. Sullivan v. Dollar
    Tree Stores, Inc., 
    623 F.3d 770
    , 776 (9th Cir. 2010) (citations omitted).
    Under Merritt’s GEICO policy,
    “Temporary substitute auto” means an automobile or
    trailer, not owned by you, temporarily used with the
    permission of the owner. The vehicle must be used as a
    substitute for the owned auto or trailer when withdrawn
    from normal use because of its breakdown, repair,
    servicing, loss or destruction.
    4
    Tomlinson asserts that a vehicle is a “temporary substitute auto” if it is put
    to the same use or purpose as the disabled vehicle would have been but for its
    disablement. He argues that Betcher’s vehicle was therefore a temporary substitute
    for Merritt’s under the policy. If Merritt had not lost her keys, however, she would
    not have used her own car for the purpose of retrieving her keys from Fairbanks
    because she would not have needed to do so. In bringing Merritt the keys, Betcher
    was not performing a task that Merritt would have otherwise performed; she was
    merely assisting Merritt in reenabling her own car. Betcher’s vehicle thus was not
    put to the same use or purpose as Merritt’s would have been had Merritt not lost
    her keys.
    Under Alaska law, policy restrictions in liability contracts are construed “to
    give effect to the insured’s objectively reasonable expectations.” Whittier Props.,
    Inc. v. Alaska Nat’l Ins. Co., 
    185 P.3d 84
    , 91 (Alaska 2008). We agree with the
    district court that Merritt and GEICO would not reasonably have expected
    Betcher’s car to constitute a temporary substitute auto under these circumstances.
    The district court did not err in granting GEICO’s motion for summary judgment.
    See Fed. R. Civ. P. 56(a).
    AFFIRMED.
    5