McAlpine Ex Rel. Estate of McAlpine v. State Farm Fire & Casualty Insurance

MEMORANDUM

Deborah McAlpine appeals the district court’s judgment, following a jury trial, in favor of her property insurer, State Farm Fire and Casualty Insurance Company. We have jurisdiction under 28 U.S.C. § 1291 . We affirm in part, vacate in part, and remand for further proceedings.

1. The district court erred by instructing on State Farm’s non-cooperation defense. Although Washington has never recognized the “mend the hold” doctrine advanced by McAlpine, see Ohio & Miss. Ry. v. McCarthy, 96 U.S. 258, 267-68 , 6 Otto 258 , 24 L.Ed. 693 (1877) (holding that a party is estopped from changing its reason for the conduct at issue once litigation has begun), its doctrines of waiver and estoppel are functionally similar. See Poison Logging Co. v. Neumeyer, 229 F. 705, 708 (9th Cir.1916) (citing Zeimantz v. Blake, 39 Wash. 6 , 80 P. 822 (1905) (per curiam)); Bosko v. Pitts & Still, Inc., 75 Wash.2d 856 , 454 P.2d 229, 234 (1969) (articulating “the general rule that if an insurer denies liability under the policy for one reason, while having knowledge of other grounds for denying liability, it is es-topped from later raising the other grounds in an attempt to escape liability,…