Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1990)
Annotate this CaseNo. 89-15355.
United States Court of Appeals, Ninth Circuit.
Before HUG and SCHROEDER, Circuit Judges, and von der HEYDT,** District Judge.
MEMORANDUM*
After applying for medical insurance, Elmer Houle had a stroke and subsequently incurred over $80,000 worth of medical expenses. Pro se appellants Elmer and Theresa Houle claim that Allstate Life Insurance Company is responsible for their debt. Allstate denies liability. The district court granted Allstate's motion for summary judgment. We reverse.
The crux of the district court's decision granting Allstate's motion for summary judgment revolves around Theresa Houle's alleged misrepresentation regarding her work hours. Based on the alleged misrepresentation, the court found that no contract existed between the Houles and Allstate and, alternatively, that the contract was voidable.1
In order to be eligible for the type of insurance coverage sought by the Houles, an employee had to work at least 30 hours a week. This requirement is stated in the application. Allstate claims that Theresa and Elmer Houle's depositions unequivocally reveal that Theresa Houle only worked for Safe-T-Blade 20 hours a week, not 30 hours a week. Thus, Allstate argues that the district court properly used Theresa Houle's alleged misrepresentation as the basis for it's grant of summary judgment.
The following colloquy between Allstate's attorney and Theresa Houle was relied upon by Allstate to establish Theresa Houle's misrepresentation:2
Question [No. 1]: Did you understand yourself to be an employee of Safe-T-Blade?
Answer: Yes.
Question [No. 2]: OK. At that time back in June of '85 were you a full time worker, meaning 40 hours a week, or did you have a schedule which had you at the office 20 hours a week?
Answer: It was more like maybe just 20 hours.
Question [No. 3]: Did you have a particular daily plan that you followed on a weekly basis where you'd go to the office between 8:00 and noon?
Answer: No.
Question [No. 4]: But to the best of your recollection, your involvement with Safe-T-Blade was more in the nature of 20 hours per week?
Answer: Approximately.
This testimony does not clearly establish that Theresa Houle worked less than 30 hours a week for Safe-T-Blade. Theresa Houle's response to Allstate's second question establishes that Theresa Houle only worked 20 hours at the office. Theresa Houle conceivably could have, as she alleges on appeal,3 put in additional hours at her home. Moreover, given the vague nature of Allstate's fourth question, Theresa Houle could have thought that Allstate was simply rephrasing the prior question regarding the number of hours she worked at the office.
At no time did Allstate specifically ask Theresa Houle if she worked 30 hours a week for Safe-T-Blade; nor did Allstate ask Theresa Houle how many hours a week she worked for Safe-T-Blade. Had Allstate asked these or similarly straightforward questions, and had Theresa Houle's subsequent response clearly indicated that she worked less than 30 hours a week for Safe-T-Blade, then summary judgment in this case may have been appropriate. But that is not the situation we have here.
Summary judgment is only appropriate if there is no genuine issue of material fact. Fed. R. Civ. P. 56(c). Our review indicates that there is a genuine issue of material fact regarding the number of hours Theresa Houle worked for Safe-T-Blade.4 Accordingly, the district court's judgment is REVERSED.5
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
The Honorable James A. von der Heydt, Senior United States District Judge for the District of Alaska, sitting by designation
The district court also noted, in passing, that a policy was not issued by Allstate's home office and that summary judgment was appropriate on this basis as well. Allstate presents the same argument on appeal
There is considerable Arizona legal authority that may support a contract under the facts alleged by the Houles, despite the fact that Allstate's home office did not issue a policy. See, e.g., Gordinier v. Aetna Casualty & Sur. Co., 742 P.2d 277, 283-84 (Ariz.1987) (noting the four situations in which Arizona courts will refuse enforcement of unambiguous boilerplate terms in an insurance contract based on the doctrine of reasonable expectations); see also, Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 682 P.2d 388 (Ariz.1984) (establishing the doctrine of reasonable expectations in insurance contracts). The record indicates that this authority was not fully considered by the district court. We therefore decline to reach the merits here.
Allstate also relied on Elmer Houle's deposition. However, Elmer Houle's deposition reveals that his statements regarding the number of hours Theresa Houle worked for Safe-T-Blade were a mere reaffirmation of Theresa Houle's deposition statements. Like his wife, Elmer Houle did not definitively state that Theresa Houle worked less than 30 hours a week for Safe-T-Blade
Although this explanation was not raised in the Houles' response papers in the district court, the record shows that it was raised during oral argument in opposition to Allstate's summary judgment motion. Thus, the issue is properly before this court. See generally 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, Sec. 2716, at 650-56 (2d ed.1983) (noting the limitations placed on appellate review of a summary judgment motion)
We reach this conclusion without relying on the affidavits submitted by the Houles for the first time on appeal. See Harkins Amusement Enter., Inc. v. General Cinema Corp., 850 F.2d 477, 482 (9th Cir. 1988), cert. denied, 109 S. Ct. 817 (1989)
Because Allstate is no longer a successful party under Ariz.Stat. Sec. 12-341.01, we also reverse the district court's grant of attorneys' fees
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