Clara Knight v. Lm General Ins. Co.

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 9, 2019
• Docket: 18-15154
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 09 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARA ANN KNIGHT, ) No. 18-15154 individually and as heir at law to ) Logan Loraine Knight, deceased; ) D.C. No. 3:17-cv-00125-HDM-VPC RACHEL WILSON, heir at law to ) Logan Loraine Knight, deceased; ) MEMORANDUM* THE ESTATE OF LOGAN ) LORAINE KNIGHT, ) ) Plaintiffs-Appellees, ) ) ) v. ) ) LM GENERAL INSURANCE ) COMPANY, ) ) Defendant-Appellant. ) )

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding

Submitted April 16, 2019** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). Before: D.W. NELSON, FERNANDEZ, and BEA, Circuit Judges.

LM General Insurance Company (LM General) appeals the district court’s

judgment in favor of Clara Ann Knight, Rachel Wilson, and the Estate of Logan

Loraine Knight (hereafter collectively “Knight”). We affirm.

In an action for declaratory relief, Knight sought a determination that a

vehicle driven by Paul S. Williams was not excluded from coverage under the

“regular use” provision of an automobile insurance policy issued by LM General in

which Paul S. Williams and Brenda A. Cormier Williams were the named insureds.

LM General asserts that the exclusion of any vehicle, other than those listed

as “covered vehicles,” which is “furnished or available for [the insureds’] regular

use” precludes coverage in this instance. We disagree. Under the law of the State

of Nevada1 the most that can be said in favor of LM General’s position is that the

regular use provision is ambiguous. It could mean that the policy excludes any use

that is merely “constant, systematic . . . steady, methodical,”2 or it could mean a

use that is “uninterrupted normal use for all purposes; without limitation as to use;

1 This is a diversity case. See 28 U.S.C. § 1332(a). We, therefore, apply the law of the State of Nevada. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938). 2 Hartford Ins. Grp. v. Winkler, 508 P.2d 8, 13 (Nev. 1973) (internal quotation marks omitted) (citing a dictionary).

2 and customary use as opposed to occasional use or special use.”3 Of course, that

does not help LM General’s position because under Nevada law a reasonable

insured4 could expect coverage of an automobile whose use is severely limited to

the needs of an employer and for no other purpose. Certainly it cannot be said that

LM General’s “interpretation excluding coverage is the only reasonable

interpretation of the exclusionary provision.” Century Sur. Co., 329 P.3d at 616.

LM General does make a number of other arguments, all of which seek to avoid

the fact that the Nevada Supreme Court has spoken, but it is to that speaking that

we must defer. See Angel v. Bullington, 330 U.S. 183, 191, 67 S. Ct. 657, 662, 91

L. Ed. 832 (1947); see also Erie, 304 U.S. at 78, 58 S. Ct. at 822. As an ultimate

fallback position, LM General asks that we certify the regular use question to the

Nevada Supreme Court so that it can revisit its previous decision. We decline to

do so. See Churchill v. F/V Fjord (In re McLinn), 744 F.2d 677, 681 (9th Cir.

1984); see also Nev. R. App. P. 5(a).

AFFIRMED.

3 Id. (internal quotation marks omitted). We note that it may not be ambiguous at all because the latter definition can be seen as a definition that is more precise than the general dictionary definition. 4 See, e.g., Century Sur. Co. v. Casino W., Inc., 329 P.3d 614, 616 (Nev. 2014); Winkler, 508 P.2d at 11.