NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMI HUNTING,

Plaintiff

- Appellant,

v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a foreign insurance company,

Defendant

- Appellee. No. 20

- 35916
D.C. No. 3:19

- cv - 05783

- MJP

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, District Judge, Presiding Argued and Submitted December 7, 2021

Pasadena, California Before: KELLY, * * M. SMITH, and FORREST, Circuit Judges. Plaintiff

- Appellant Jami Hunting appeals the summary judgment granted in favor o f Defendant

- Appellee American Family Mutual Insurance Co. (American Family) on her breach of contract, bad faith, and Washington Consumer Protection

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 

# FILED

DEC 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Act (CPA) claims in this denial of coverage case

. We have jurisdiction under 28 U.S.C. § 1291, and we affi rm. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo. Howard v. HMK Holdings , LLC , 988 F.3d 1185, 1189 (9th Cir. 2021). When determining whether there are any genuine issues of material fact, we must review the evidence in the light most favorable to the nonmoving party. Id. The proper inquiry is “whether the evidence presents a sufficient disagreement to require submissi on to a jury or whether it is so one

- sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251

– 52 (1986).
DISCUSSION The parties are familiar with the facts, so we need not restate them here other than to st ate that Ms. Hunting sought to recover for damage to a rental property insured under a businessowners policy . On appeal, Ms. Hunting contends that the district court erred : (1) in rejecting her breach of contract claim because American Family should be es topped from asserting a contractual time limitation defense ; (2)
in overlooking evidence that American Family acted in bad faith and violat ed the Washington CPA by characterizing the damage as “wear and tear” and “inadequate . . . maintenance”; and (3) in striking the Declaration of Rob Berg who video taped the damage and expressed his opinion that the damage was intentional

.3

A. Equitable Estoppel Ms. Hunting contends t hat the evidence support s her claim that American Family should be estopped from asserting the policy’s time limitation period. The elements an equitable estoppel defense are : “ (1) an admission, statement, or act inconsistent with the claim afterwards asse rted, (2) action by the other party on the faith of such admission, statement, or act, and (3) injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement, or act.” Dombrosky v. Farmers Ins. Co. of Wash. , 928 P.2d 1127, 1134 ( Wash. Ct. App. 1996) (citation omitted) . The party asserting estoppel must prove each element by “clear, cogent, and convincing evidence.” Id. A n insurer can be estopped from enforcing its suit limitation provision where i ts conduct causes the insured to refrain from performing a necessary act that causes her prejudice. See Dickson v. U.S. Fid. & Guar. Co. , 466 P.2d 515, 517 ( Wash. 1970) (en banc)

. Nothing in the record shows that American Family caused Ms. Hunting to refr ain from filing suit until after the May 3, 2019 , deadline. Ms. Hunting claims that continu ing negotiations led her to believe that settlement of her claim was possible . Yet , any contact with an American Family adjuster after the May 3,
2019 , deadline could not have induced Ms. Hunting ’s delay. Additionally, emails exchanged between Ms. Hunting and her public adjuster , James Thomas , in April4

2019 confirm t hat Ms. Hunting understoo d that negotiations were over well before the May 3 deadline. Ms. Hunting’s argument with respect to an American Family agent’s representations about time limitations is also unavailing. “Reliance is justified only when the party claiming estoppel did n ot know the true facts and had no means to discover them.” Marashi v. Lannen , 780 P.2d 1341, 1344 ( Wash. Ct. App. 1989). Ms. Hunting says she was told that there was no time limitation regarding her insurance claim . Such a statement is a direct contradi ction of the plain language of the insurance policy . It also run s counter to a January 3, 2019 , letter sent to Mr. Thomas reminding Ms. Hunting of the policy’s two

- year suit limitation period. 1 Summary judgment was properly granted on Ms. Hunting’s clai m that American Family was equitably estopped from relying on the contractual limitations period.
B. Extra
- Contractual Claims Ms. Hunting makes t wo related extra

- contractual claims: a bad faith tort claim and a claim under the Washington CPA . To prevail on a bad faith claim, the

1 Ms. Hunting also argues that because this letter was sent directly to Mr. Thomas 120 days before her suit limitation deadline, American Family failed to provide her a 30

- day notice of the two

- year suit limitation clause u nder W ashington Administrative Code § 284

- 30

- 380(5) (2009)

. Because this argument was raised for the first time on appeal, we will not consider it. See In re Am. W. Airlines, Inc. , 217 F.3d 1161, 1165 (9th Cir. 2000).5

insured “must show the insurer’s breach of the insurance contract was unreasonable, frivolous, or unfounded.” Smith v. Safeco Ins. Co. , 78 P.3d 1274, 1277 (Wash. 2003) (en banc). To prevail on a Washington CPA clai m, Ms. Hunting must show that American Family “engaged in an unfair or deceptive act or practice” that caused her injury. Overton v. Consol

. Ins. Co. , 38 P.3d 322, 330 (Wash. 2002) (en banc). If the insurer denies coverage based on “a reasonable interpre tation of the insurance policy” and “reasonable conduct,” neither bad faith nor a violation of the Washington CPA can be established. Id. at 329 , 3 30. Much of the physical damage was documented as scratches, stains, dents, scrapes, nicks, dirt, water da mage, and abrasions. This is consistent with American Family’s categorization of the damage as “wear and tear” and “inadequate . . . maintenance” under the policy. At most, given the tremendous number of items claimed by Ms. Hunting, American Family and Ms. Hunting did not agre e about how to categorize the damage. On these facts, a dispute about the categorization of damage does not constitute bad faith under Washington law. Additionally, American Family did not act unreasonably by hiring a third

- party adjuster to conduct an inspection. The evidence simply does not support that American Family denied coverage based on an unreasonable interpretation of the policy or unreasonable conduct.6

C. Declaration of Rob Berg American Family moved to strike Mr. Berg’s declaration , and the district court granted th e motion in a footnote. We review a district court’s grant of a motion to strike for an abuse of discretion. El Pollo Loco, Inc. v. Hashim , 316 F.3d 1032, 1038 (9th Cir. 2003). Although it is doubtful that Mr. Berg’s declaration was presented as expert testimony under Federal Rule of Evidence 702 , any error from the exclusion was harmless as Mr. Berg’s declaration largely repeats the statements in Ms. Hunting’s own declaration and does not raise a genuine issue of material fact. See Tritchler v. Cnty. of Lake , 358 F.3d 1150, 1154 (9th Cir. 2004).
AFFIRMED.