BARRON v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY (2018)

MEMORANDUM **

Plaintiffs-Appellants Steven E. Barron, Marc W. Hillestad, Christine L. Hillestad, Irene Diep,¹ Raymond Owens, and Tammy Owens appeal the district court's interlocutory order partially granting summary judgment in favor of Defendant-Appellee American Family Mutual Insurance Company. We have jurisdiction ² under 28 U.S.C. § 1292(b). And we review de novo the district court's summary-judgment ruling. Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017).

Under Washington law, courts interpreting insurance policies must look to the “whole contract, giving it a fair, reasonable, and sensible construction.” Holden v. Farmers Ins. Co., 169 Wash.2d 750, 239 P.3d 344, 347 (Wash. 2010) (en banc) (internal quotations omitted). That construction must be the same “that an average person purchasing insurance would give the contract.” Id. (internal quotations omitted).

The dispute in this case centers on the district court's interpretation of policy language defining “Actual Cash Value” as “the amount it costs to repair or replace property with property of like kind and quality less depreciation for physical deterioration and obsolescence.” We agree with the district court that, under this policy language, age may be considered when calculating depreciation as long as age is linked to physical deterioration and obsolescence.

AFFIRMED.

FOOTNOTES

1.   Plaintiff-Appellant Frank E. Schoen passed away on June 28, 2018. Diep is the executor of Schoen's estate. Plaintiffs-Appellants have filed an unopposed motion to substitute Diep as a party under Federal Rule of Appellate Procedure 43(a)(1). That motion is granted.

2.   This Court previously issued an order asking the parties to address whether the operative pleadings adequately alleged the parties’ citizenships for purposes of establishing diversity jurisdiction. In response to that order, Plaintiffs-Appellants submitted a letter and a declaration stating that Raymond Owens and Tammy Owens were citizens of California when they were added as parties. We construe Plaintiffs-Appellants’ submission as a motion to supplement the record, which we now grant. Based on the declaration, we are satisfied that complete diversity of citizenship is established. See Sun Printing & Publ'g Ass'n v. Edwards, 194 U.S. 377, 382, 24 S.Ct. 696, 48 L.Ed. 1027 (1904) (“The whole record ․ may be looked to, for the purpose of curing a defective averment of citizenship, where jurisdiction in a Federal court is asserted to depend upon diversity of citizenship․”).