Fuller v. Safeco Ins. Co. of Oregon

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2018
• Docket: 16-35289
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT FULLER and JANET FULLER, No. 16-35289 husband and wife, D.C. No. 3:15-cv-05489-RBL Plaintiffs-Appellants,

v. MEMORANDUM*

SAFECO INSURANCE COMPANY OF OREGON, a foreign insurer,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted May 9, 2018 Seattle, Washington

Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM,** Chief District Judge.

Robert and Janet Fuller’s (the Fullers) home became uninhabitable because

of a fire on January 31, 2015. Seeking to recover for the damage to their home, the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. Fullers sought coverage from their insurance provider, Safeco Insurance Company

of Oregon (Safeco). But Safeco denied coverage stating that the Fullers’ policy

had been cancelled effective January 29, 2015. The Fullers sued Safeco to obtain

coverage, and Safeco moved for summary judgment arguing that as a matter of law

the policy was cancelled in accord with Washington Revised Code § 48.18.290.

The district court granted summary judgment for Safeco. The Fullers appeal. We

have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the grant of summary

judgment de novo, Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011), we

reverse.

The Fullers argue that the district court erred by concluding that Safeco had

shown prima facie evidence that the Fullers’ notice of cancellation was mailed

under the requirements of Washington Revised Code § 48.18.290. The Fullers also

argue that the non-receipt of the notice of cancellation creates a dispute of material

fact that should have precluded the grant of summary judgment. We agree.

Under Washington Revised Code § 48.18.290, termination of an insurance

policy is only effected if (1) the insurer delivers or mails notice of cancellation to

the named insured, and (2) the notice includes the reasons for cancellation. Wash.

Rev. Code § 48.18.290(1)(a). “The affidavit of the individual making or

supervising such a mailing, shall constitute prima facie evidence of such facts of

the mailing . . . .” Wash. Rev. Code § 48.18.290(3). Here, John Mota, a Shift

2 Manager for Operation Support at Safeco, attested to the mailing of the

cancellation notice. But Mota testified that he did not work during the shift that

the mailing was made. Because Mota was not the individual supervising the

mailing of the notice to the Fullers, Mota’s affidavit could not establish prima facie

evidence of mailing. The district court erred by relying on Mota’s affidavit as

conclusive evidence of mailing.

Because Safeco did not provide prima facie evidence of mailing, Safeco was

not entitled to summary judgment if the Fullers’ evidence gave rise to a genuine

issue of material fact as to whether the mailing had occurred. Blomquist v. Grays

Harbor Cty. Med. Serv. Corp., 296 P.2d 319, 321 (Wash. 1956) (concluding that

the burden is on the insurer to prove that the policy was cancelled). The Fullers’

and their insurance agent’s non-receipt of the cancellation notice, in the absence of

prima facie evidence of mailing, created a dispute of material fact about whether

the cancellation notice was sent. We reverse the district court’s grant of summary

judgment in favor of Safeco on all of the Fullers’ claims and remand.

REVERSED and REMANDED.