Richardson v. New England Mutual Life Insurance Corporation

37 F.3d 1506

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 28, 1994
• Docket: 93-35609
• Status: Published

Opinion

37 F.3d 1506
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Cecilia E. Richardson RICE, Trustee of the Horace D. and
Margaret C. Richardson Life Insurance Trust,
Plaintiff-Appellant,
v.
NEW ENGLAND MUTUAL LIFE INSURANCE CORPORATION, a
Massachusetts corporation, Defendant-Appellee.

No. 93-35609.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 14, 1994.*
Decided Sept. 21, 1994.
As Amended on Denial of Rehearing
Dec. 28, 1994.

Before: BROWNING, WRIGHT, and CANBY, Circuit Judges.

MEMORANDUM**

The law of the case doctrine did not foreclose the district court's consideration of Rice's motion because this court's previous order denying Rice's fee petition neither "explicitly [n]or by necessary implication" held that fees generally are not recoverable in this case. Liberty Mutual Ins. Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir.1982).

WE may affirm the judgment of the district court on any ground supported by the record. Charley's Taxi Radio Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 874 (9th Cir. 1987). We conclude that Estate of Jordan v. Hartford Accident & Indem. Co., 844 P.2d 403 (Wash 1993), did not represent a change in Washington law; it was merely an application of th rule stated in Olympic S.S. Co., Inc. v. Centennial Ins. Co., 811 P.2d 673 (Wash. 1991). Because Rice did not pursue her claim under Olympic in a timely fashion, she waived her claim, and the district court properly denied Rule 60(b) relief.

AFFIRMED.

* The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3