166 F.3d 982 (9th Cir. 1999), 96-17096, Reinkemeyer v. SAFECO Ins. Co. of America

Docket Nº:96-17096.
Citation:166 F.3d 982
Party Name:Journal D.A.R. 947 Joseph REINKEMEYER, Dr.; Patricia Reinkemeyer, Plaintiffs-Appellants, v. SAFECO INSURANCE COMPANY OF AMERICA; Does I through X; ABC Corporations I through X, Defendants-Appellees.
Case Date:January 28, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 982

166 F.3d 982 (9th Cir. 1999)

Journal D.A.R. 947

Joseph REINKEMEYER, Dr.; Patricia Reinkemeyer, Plaintiffs-Appellants,

v.

SAFECO INSURANCE COMPANY OF AMERICA; Does I through X; ABC

Corporations I through X, Defendants-Appellees.

No. 96-17096.

United States Court of Appeals, Ninth Circuit

January 28, 1999

Submission deferred March 23, 1998.

Submitted Nov. 12, 1998[**]

Vernon E. Leverty, Leverty & Associates, Reno, Nevada, for the plaintiffs-appellants.

William G. Cobb, Erickson, Thorpe & Swainston, Reno, Nevada, for defendant-appellee Safeco.

Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. D.C. No. CV 94-00888-HDM(PHA).

Before: GOODWIN, FLETCHER and D.W. NELSON, Circuit Judges.

PER CURIAM:

The principal question on this appeal is whether a homeowner insurance policy was covered by the provisions of Nevada Revised Statutes ("NRS") §§ 687B.310-420. We certified the statutory construction question to the Supreme Court of Nevada as one peculiarly

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within the expertise of that court. Based upon the decision of the Nevada Court, we reverse and remand this diversity case to the district court.

I. Factual and Legal Background

The facts in the case are not in dispute. The Reinkemeyers were insured by SAFECO Insurance Company under a homeowner's insurance policy. Between 1989 and 1993, the Reinkemeyers submitted three claims under the policy totaling approximately $212,400. In 1994, SAFECO notified the Reinkemeyers that it was declining to renew the policy.

The Reinkemeyers sued SAFECO claiming that the non-renewal violated various provisions of NRS §§ 687B.310-420 that govern the cancellation and renewal of certain insurance policies. For example, they asserted that the version of § 385 in effect at the time denied insurers any right to "cancel, refuse to renew or increase the premium for renewal of a policy of casualty or property insurance as a result of any claims made under the policy with respect to which the insured was not at fault." 1 SAFECO agrees that the losses were not the fault of the Reinkemeyers.

Section 310 limits the applicability of §§ 310-420 to insurance contracts "the general terms of which are required to be approved or are subject to disapproval by the commissioner" of insurance. Relying on this language, SAFECO argues that an insurance policy is subject to §§ 310-420 only if the legislature specifically grants the Commissioner the authority to approve or disapprove the policy. While the legislature has made certain insurance policies explicitly subject to approval by the Commissioner of Insurance, 2 no provision of Nevada law specifically grants the Commissioner authority over homeowner's policies.

The Reinkemeyers and amicus curiae (the State of Nevada Division of Insurance and Commissioner of Insurance) argue that homeowner's insurance policies, along with almost every other insurance policy used in the state, are subject to regulation under the Commissioner's general regulatory powers. Thus, the Reinkemeyers and the State of Nevada claim that almost all insurance policies used in Nevada are subject to §§ 310-420.

Adopting the magistrate's report and recommendation, the district court agreed with SAFECO, holding that because no provision of Nevada law affirmatively requires homeowner's insurance contracts to be approved by the Commissioner homeowner's insurance policies do not meet the requirements of § 310. The district court granted summary judgment to SAFECO on this basis.

II. Certification to the Nevada Supreme Court

Pursuant to Nevada Rule of Appellate Procedure 5, we certified the following question to the Nevada Supreme Court:

Is a homeowner's insurance policy, like the one at issue in this case, a contract of insurance the general...

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