State Farm Mutual Automobile Insurance Company, an Illinoiscorporation, Plaintiff-appellee, v. Linda White and John Lansford As Guardian of Linda White,defendants-appellants, 563 F.2d 971 (9th Cir. 1977)

The facts in this case are not in dispute. On April 4, 1974, the appellee, State Farm Mutual Insurance Company (hereinafter State Farm) issued a six month automobile liability insurance policy to Steven W. Wilcox "effective April 4, 1974 until terminated". The policy was sold to Wilcox by Tom Larson, a self-described independent contractor who writes insurance policies for State Farm. Wilcox signed an application on April 4, 1974, and made a partial payment of $90.00 toward the total premium for a six months policy of $197.30. The "policy period" was 04-04-74 to 10-04-74. The "Declaration" section of the policy provides that the policy period shall be "as shown under 'policy period' and for such succeeding periods of six months each thereafter as the required renewal period is paid by the named assured on or before the expiration date of the current policy period." The notice stated: "This is the only notice you will receive prior to date premium is due." Wilcox received the notice on October 12, 1974.¹  The delay between the mailing of the notice and its receipt resulted from Wilcox' absence from his mailing address at his job in a remote area of Montana. Two other notices were also sent to Wilcox, one on October 9, and one on October 28. However, he did not receive them until after the accident which is the subject of the present dispute, because he was again picking up his mail on irregular occasions.

Wilcox did not make any payment to renew his policy. On October 29, 1974, he was operating the truck covered by the policy near De Borgia, Montana. He was involved in a collision with another vehicle, and several persons were injured. Several suits were filed against Wilcox, including one by the appellant, Linda White, who was paralyzed from the neck down as a result of the incident. State Farm filed a diversity action in federal court seeking a declaratory judgment that Wilcox was not covered by State Farm's policy on October 29, 1974, when the accident took place. Pending resolution of this matter, the suits against Wilcox have been stayed.

The district judge concluded that the policy expired by its terms on October 4, 1974, and that the policy was never renewed by Wilcox. He also concluded that State Farm was not estopped from denying coverage, that State Farm was not required to give notice that the policy had expired, and that the insurance contract was not ambiguous. State Farm was therefore held not to have any obligation to defend Wilcox from any lawsuit arising out of the October 29, 1974 accident, or to pay any benefits under the policy as a result of the accident. (R.T. 141-46). Linda White has appealed. We now have jurisdiction under 28 U.S.C. § 1291.II. ISSUES

The parties have agreed upon the following issues on appeal:

(1) Did State Farm fail to comply with its own policy provisions and the laws of Montana regarding cancellation and non-renewal of its automobile liability insurance policy?

(2) Is State Farm estopped to deny coverage by reason of the acts of its agent?

A. White's first argument is that State Farm failed to give notice of cancellation to Wilcox, as required by Montana law and by the insurance policy. However, this argument is based on a faulty premise, i. e., that the policy was in fact cancelled. This contention the trial court did not accept. "Actually, the policy expired by its own terms; it was not cancelled." (C.T. 145, conclusions VII).²  The Montana statutes on which White relies (R.C.M. 40-4405, 40-4408) apply only to cancellation of a policy, not to its termination. The situation involved here, where the policy terminated by its own terms for failure of the insured to renew, is controlled by R.C.M. 40-4409, which does not require any notice to the policy-holder when the reason for the non-renewal of the policy is the holder's failure to pay the renewal premiums.³  Therefore, there was no need for State Farm to give notice to Wilcox. Similarly, the portions of the policy on which White rests her argument that notice was required apply only to a cancellation, not to an expiration or termination at the end of the policy period.

B. White also argues that State Farm's attempt to terminate coverage was a cancellation or, in the alternative, that the policy was so ambiguous as to be tantamount to a cancellation. The only basis for its argument that the policy was cancelled is a letter written by a State Farm adjuster to appellant's attorneys stating that the policy "was cancelled on October 4, 1974, for non-payment of premium." (App. Br., Appendix, p. 22). In all probability, the adjuster mistakenly used the word "cancelled" rather than the more accurate term "expired." White argues that this is an admission similar to that involved in Meagher v. Benefit Trust Life Ins. Co., 160 Mont. 333, 502 P.2d 415 (1972). Meagher, however, involved communication from the insurance company which in effect indicated to the insured that his policy was paid-up and non-cancellable. The court held that this admission bound the insurer, even though the policy was in fact cancellable. Here the letter was not sent to Wilcox. It was written to White's attorneys after the accident and after claim had been made on behalf of defendants-appellants. There was no reliance by any party to the insurance contract on the mistaken use of the word "cancelled".

C. In the alternative, White suggests that the policy is ambiguous. The district court specifically found that the insurance contract was not ambiguous, and furthermore, found that Wilcox knew that the policy would expire after six months unless he renewed it. (R.T. 145-46, conclusion VIII). Since Wilcox could not reasonably have expected coverage after October 4, 1974, and since he received a notice that his premium payment was due, it is difficult to see how any ambiguity that might exist with regard to cancellation would affect Wilcox. In addition, the contract provisions on which White relies (See Appellant Br. pp. 9-10, 14) do not appear to be ambiguous. Montana law on the subject is quite clear,⁴  as the Montana Supreme Court noted in Universal Underwriters Ins. Co. v. State Farm Mutual Automobile Ins. Co., 166 Mont. 128, 135, 531 P.2d 668, 673 (1975):

"The policy of insurance between Universal and Cislo Chevrolet is a contract, and subject to applicable contract law of Montana. The language of a contract governs its interpretation, if the language is clear and explicit. Section 13-704, R.C.M.1947. The intention of the contracting parties is to be ascertained from the contract itself, if possible. Section 13-705, R.C.M.1947. Where the language of an insurance policy admits of only one meaning there is no basis for interpretation of the policy coverage under the guise of ambiguity."

In accord is Holmstrom v. Mutual Benefit Health & Accident Ass'n, 139 Mont. 426, 428-29, 364 P.2d 1065, 1066 (1961), where the judge stated:

"Ambiguity does not exist just because a claimant says so. It can only exist where the wording or phraseology of a contract is reasonably subject to two different interpretations."

Here, there appears to be no basis for a finding of ambiguity. The policy set forth the policy period, and the fact that the policy would be renewed only if the renewal payment was made on time. Wilcox knew that the policy would be terminated if he did not pay the renewal premium on time. (Wilcox deposition p. 31). There is no indication that Wilcox thought that the policy would continue in effect until State Farm sent him a notice of cancellation, or until Larson contacted him, and the terms of the policy are not subject to differing interpretations on the issue. Therefore, White's arguments as to ambiguity must fail.

D. White's next argument is that the "doctrine of reasonable expectations" required State Farm do more than it did in this case to inform Wilcox that his policy was about to expire. Whatever the merits of this argument (and they are weak), White did not raise this argument in the district court. Therefore there is no need for this Court to consider the effect of the doctrine. Michael Regan Co., Inc. v. Lindell, 527 F.2d 653, 659 (9th Cir. 1975); Rothman v. Hosp. Service of Southern California, 510 F.2d 956, 960 (9th Cir. 1975); Moore's Federal Practice, Vol. 5A, P 46.02, pp. 1902-1906.

E. White's final contention is that State Farm is estopped to deny coverage by reason of the acts of its agent, Larson. The district court specifically categorically rejected this argument (R.T. p. 144, conclusion V) on two separate grounds: (1) In Montana, estoppel requires, inter alia, a representation by the party against whom an estoppel is asserted and reliance on that representation by the party asserting the estoppel. Mundt v. Mallon, 106 Mont. 242, 249-50, 76 P.2d 326 (1938).⁵  Accord, Hustad v. Reed, 133 Mont. 211, 223, 321 P.2d 1083 (1958). (2) Neither under the terms of the policy or the laws of Montana did Larson have authority to authorize waiver of, or a change in, the policy.⁶  The judge concluded that neither of these requisites were satisfied prior to the expiration of the policy on October 4, 1974. As a result, he concluded that Larson was not required to personally notify Wilcox that his policy had expired.

We find no reason why the district court's conclusion should be overturned by this Court. There was no indication in Wilcox' deposition that he believed that Larson would personally contact him before the expiration of the policy, or that he relied on Larson's failure to contact him in deciding not to pay the renewal premium. On the contrary, Wilcox testified that he attempted to contact Larson prior to the accident. In short, the element of a representation and reliance simply have not been proven.

F. White finally suggests that Larson represented to Wilcox after his first failure to pay that his semi-annual payments would or could, be converted to monthly payments, and that it was because of this representation that Wilcox did not pay the renewal premium. However, this contention is undermined by the testimony of Wilcox himself, who testified that he told a representative of State Farm that Larson had actually told him to contact Larson when the issue of payments came up again, i. e., when Wilcox received his renewal notice.⁷  Thus, it appears that the only representation by Larson was that monthly payment would, or could, be arranged when Wilcox contacted Larson about the renewal premium. Since Wilcox never did contact Larson, it is difficult to see how Wilcox could have reasonably believed that he was not required to pay anything in order to retain his coverage. In short, there is no basis for State Farm to be estopped from denying coverage.

The district court concluded that Wilcox' policy had expired prior to the accident, and we can find no legal reason why that conclusion should be disturbed on appeal. The policy was not cancelled, but rather expired by its own terms; since it was not cancelled, State Farm was not required to give Wilcox notice under either the insurance contract or the relevant Montana statutes. The contract is not ambiguous, and even if it were, Wilcox was not misled by the ambiguity, since he knew that the policy would expire on October 4, 1974. Furthermore, State Farm even sent him a notice that his policy was about to expire. Lastly, State Farm was not estopped to deny coverage, since there was neither a representation nor reasonable reliance. The district court's decision can be overturned only if clearly erroneous. We cannot retry issues of fact nor supplant the district court's judgment with that of our own. We must consider the district court's findings as presumptively correct. We are required to take the evidence as a whole, and consider it in the light most favorable to appellees. Smith v. James Irvine Foundation, 402 F.2d 772 (9th Cir. 1968).

Therefore, the district court's judgment must be and is AFFIRMED in all particulars.