NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID STREETER; KATJA STREETER, 

Plaintiffs-Appellants, 

 v. 

USAA GENERAL INDEMNITY 

COMPANY, 

Defendant-Appellee.

No. 23-35086 

D.C. No. 9:20-cv-00188-DLC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, District Judge, Presiding

Argued and Submitted November 16, 2023

Seattle, Washington

Before: McKEOWN and GOULD, Circuit Judges, and BENNETT,** District 

Judge.

This is an insurance recovery case, resulting from two fires that occurred 

within a period of twenty-four hours and were investigated by law enforcement as 

potential arson. Plaintiffs-Appellants David and Katja Streeter—the owners of the 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Richard D. Bennett, United States Senior District 

Judge for the District of Maryland, sitting by designation.

FILED

DEC 6 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

subject property—promptly made a fire loss claim with their insurer, DefendantAppellee USAA General Indemnity Company (“USAA GIC”). After USAA GIC 

issued payments in the amount of $644,328.72, the Streeters filed suit in the United 

States Court for the District of Montana, alleging claims for breach of contract, 

violations of Montana’s Unfair Trade Practices Act, and declaratory judgment, and 

seeking punitive damages, attorney fees, and costs. At the close of discovery, 

USAA GIC moved for summary judgment based on the Streeters’ failure to 

cooperate, and the district court ultimately entered summary judgment for USAA 

GIC on those grounds. On appeal, the Streeters challenge the district court’s entry 

of summary judgment and secondarily seek certification of a question to the 

Montana Supreme Court regarding the enforcement of a contractual duty to 

cooperate.

1. We review the district court’s grant of summary judgment de novo to 

determine whether, viewing the evidence in the light most favorable to the 

nonmoving party, there is no genuine issue of material fact and the movant is 

entitled to judgment as a matter of law. Frudden v. Pilling, 877 F.3d 821, 828 (9th 

Cir. 2017). Having done so, we conclude that summary judgment was properly 

granted.

The duty to cooperate typically arises from the inclusion of a cooperation 

clause in an insurance policy—such as the one included in the Streeters’ policy. 
3 

Because this cooperation can fairly be characterized as a duty, the failure to 

comply can result in the loss of coverage under the policy. See, e.g., Tran v. State 

Farm Fire & Cas. Co., 961 P.2d 358, 363 (Wash. 1998) (applying Washington 

law).

As the Streeters filed this action in federal court on the basis of diversity of 

citizenship, we apply the substantive law of Montana, the forum state. Med. Lab’y 

Mgmt. Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806, 812 (9th Cir. 2002). 

The Montana Supreme Court has not specifically addressed the level of 

cooperation required in an insurance contract. However, that court has held that an 

insured’s failure to comply with the notice requirement of an insurance policy 

precludes recovery under the policy if it causes prejudice to the insurer’s ability to 

investigate the claim and participate in litigation. Steadele v. Colony Ins. Co., 260 

P.3d 145, 150–51 (Mont. 2011); Contractors Bonding & Ins. Co. v. Sandrock, 321 

F. Supp. 3d 1205, 1211–12 (D. Mont. 2018). Of import here, the United States 

District Court for the District of Montana addressed the issue of noncooperation in 

Seymour v. Safeco Insurance Company, an insurance diversity case in which the

insured failed to provide the insurer with a written estimate to support a request for 

additional payment. No. CV 13-49-BU-DLC-RWA, 2014 U.S. Dist. LEXIS 

190110 at *2–3 (D. Mont. 2014), adopted by, 2015 U.S. Dist. LEXIS 181837 (D. 

Mont. May 13, 2015). In holding that this noncooperation “preclude[d] any 
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additional recovery under the [p]olicy” and thus the insured’s claim for breach of 

contract failed, id. at *22–23, the court reasoned that “[a]n insured’s failure to 

provide documents requested by the insurer or to submit to an examination under 

oath impairs an insurer’s ability to conduct a legitimate claim investigation to 

determine whether coverage exists.” Id. at *21. 

Considering the Montana Supreme Court’s decisions in notice-prejudice 

cases and Seymour, we affirm the district court’s entry of summary judgment in 

this case. The district court correctly held that an insurer prevails on a 

noncooperation defense under Montana law when the insurer establishes: (1) the 

insured failed to cooperate in a material and substantial respect, (2) with an 

insurer’s reasonable and material request, (3) thereby causing actual prejudice to 

the insurer’s ability to evaluate and investigate a claim.1 

Considering whether the Streeters failed to cooperate in a material and 

substantial respect, the record shows that when the Streeters turned their phones 

over to One Source for the data pull, they presented an authorization that set 

parameters on the data that USAA GIC could access. After USAA GIC discovered 

1 On appeal, the Streeters argue that enforcement of a cooperation clause requires 

a showing of notice—whether that means a showing of the insurer’s repeated 

requests for the insured’s compliance, deliberate conduct by the insured, and/or the 

insurer’s warning to enforce the clause. We decline to embrace such an 

unworkable, subjective standard, which, as USAA GIC correctly notes, is not part 

of the relevant policy language. 
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a discrepancy between the Verizon cell phone records and the extracted data, the 

insurer requested an expanded scope, including an examination any and all

indicators of factory resets, data hiding or similar. The Streeters authorized USAA 

GIC to review communications and voicemail but did not authorize USAA GIC to 

examine indicators of factory resets, data hidings, or the like. And before USAA 

GIC received additional extraction reports based on the expanded scope, the 

Streeters revoked the right for One Source to share any information from the data 

pulls with USAA GIC entirely. While the Streeters participated in interviews and 

provided some of the requested materials,2the Streeters refused to cooperate when 

USAA GIC requested more information to determine whether the Streeters’ 

statements aligned with the evidence. The undisputed record clearly reflects that 

the Streeters failed to substantially cooperate with USAA GIC during its 

investigation.

“An insured’s breach of a cooperation clause releases the insurer from its 

2

 In an attempt to show cooperation, the Streeters argue that they “temporarily 

suspended” authorization until USAA GIC met their demands, and further that 

their cooperation with other requests is sufficient to establish cooperation. Both 

arguments are unpersuasive. With respect to the Streeters’ first argument, placing 

conditions on cooperation would impede an insurer’s ability to conduct a 

legitimate claim investigation and is contrary to the terms of the policy and the

purpose of cooperation clauses more generally. Turning to the Streeters’ second 

argument regarding evidence of their cooperation, state courts in other jurisdictions 

routinely reject the notion that initial or partial cooperation is sufficient. See, e.g.,

Pilgrim v. State Farm Fire & Cas. Ins. Co., 950 P.2d 479, 484 (Wash. Ct. App. 

1997).
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responsibilities if the insurer was actually prejudiced by the insured’s breach.” 

Tran, 961 P.2d at 365. When “insurers are inhibited in their effort to process 

claims due to uncooperativeness of the insured, they suffer prejudice” as a matter 

of law. Id. at 365–66. 

Here, the Streeters did not cooperate with USAA GIC’s request for 

additional information, which impaired USAA GIC’s ability to investigate the 

validity of the claim before issuing substantial payment—$644,328.72—to its 

insured. Accordingly, the Streeters’ failure to cooperate caused actual prejudice to 

USAA GIC’s ability to evaluate and investigate the claim. 

At bottom, the district court correctly entered summary judgment for USAA 

GIC, as the evidence in this case permits but one conclusion—that the Streeters 

failed to cooperate with USAA GIC during its investigation, prejudicing the 

insurer’s investigation into the set of fires giving rise to the Streeters’ claims. As 

such, we AFFIRM the district court’s grant of summary judgment to 

Defendant-Appellee USAA GIC. 

2. We have “long looked with disfavor upon motions to certify that are filed 

after the moving party has failed to avail itself of a prior opportunity to seek 

certification.” Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1108 (9th Cir. 2013) 

(citing Thompson v. Paul, 547 F.3d 1055, 1065 (9th Cir. 2008)). To overcome the 

presumption against certification in such instances, “particularly compelling 
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reasons must be shown when certification is requested for the first time on appeal 

by a movant who lost on the issue below.” In re Complaint of McLinn, 744 F.2d 

677, 681 (9th Cir. 1984). The Streeters did not mention the possibility of 

certification until after the district court entered judgment against them, and they 

have not shown “particularly compelling reasons” to overcome the presumption 

against certification. Accordingly, we decline to certify any question to the 

Montana Supreme Court. 

AFFIRMED.