Northwestern Mutual Life Insur v. Richard Koch

MEMORANDUM *

This appeal arises from the rescission of Richard L. Koch’s three disability insurance policies by Northwestern Mutual Life Insurance Company. While investigating Koch’s claim for coverage, Northwestern Mutual discovered that Koch had made false statements about past treatment for bipolar depression in connection with his policy applications. Northwestern Mutual filed this action seeking ratification of its decision to rescind Koch’s policies; Koch answered with counterclaims for breach of contract, violation of Washington’s Insurance Fair Conduct Act (“IFCA”), and bad faith. The district court granted motions by Northwestern Mutual for summary judgment as to two of the policies. Then, at trial, the district court granted a motion for judgment as a matter of law on Koch’s IFCA and bad faith counterclaims. The jury returned a verdict in Koch’s favor on the remaining claims, which related to one policy. Both parties appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I

We reject Koch’s challenge to the district court’s partial grant of summary judgment in favor of Northwestern Mutual. Washington law permits rescission of a disability…

dissenting in part:

I respectfully dissent from that portion of Section I of the disposition affirming the district court’s partial grant of summary judgment in favor of Northwestern Mutual. The district court’s conclusion, on summary judgment, that there was no genuine issue of material fact as to Koch’s intent to deceive is in tension with its later ruling on Northwestern Mutual’s motion for judgment as a matter of law that there was sufficient evidence to support a jury finding in Koch’s favor on that element. Koch already had insurance at the time he obtained the 1992 policies, creating a question of fact (and credibility) whether he had a motive to deceive Northwestern Mutual. The jury should have been allowed to decide whether Koch acted with deceptive intent in obtaining the 1992 policies, just as it was regarding the 1994 policy. See Kay v. Occidental Life Ins. Co., 28 Wash.2d 300 , 183 P.2d 181, 182 (1947).

Accordingly, I would also remand for reconsideration Koch’s entitlement to attorney’s fees (Section IV), in light of the incorrect summary judgment on the claim for rescission of the 1992 policy.

FILED

NOT FOR PUBLICATION MAR 23 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

NORTHWESTERN MUTUAL LIFE No. 10-35145

INSURANCE COMPANY,

D.C. No. 3:08-cv-05394-BHS Plaintiff-counter-defendant - Appellee,

MEMORANDUM *

v.

RICHARD L. KOCH,

Defendant-counter-claimant - Appellant.

NORTHWESTERN MUTUAL LIFE No. 10-35185

INSURANCE COMPANY,

D.C. No. 3:08-cv-05394-BHS Plaintiff-counter-defendant - Appellant,

v.

RICHARD L. KOCH,

Defendant-counter-claimant - Appellee.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted March 9, 2011 Seattle, Washington

Before: McKEOWN, FISHER, and GOULD, Circuit Judges.

This appeal arises from the rescission of Richard L. Koch’s three disability

insurance policies by Northwestern Mutual Life Insurance Company. While

investigating Koch’s claim for coverage,…