Sonia Braun-Salinas v. American Family Ins. Group

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 28 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONIA BRAUN-SALINAS; GUILLERMO No. 14-35369 SALINAS, husband and wife; ESTER MACEDO, individually, D.C. No. 3:13-cv-00264-AC

Plaintiffs-Appellants,

MEMORANDUM

v.

AMERICAN FAMILY INSURANCE

GROUP, DBA American Family Mutual Insurance Company, a foreign business corporation,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon John V. Acosta, Magistrate Judge, Presiding

Submitted October 3, 2016 Portland, Oregon

Before: CLIFTON, MURGUIA, and NGUYEN, Circuit Judges.

Sonia Braun-Salinas, Guillermo Salinas, and Ester Macedo (the “Insureds”)

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  The panel unanimously concludes this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). appeal the grant of summary judgment to American Family Insurance Group

(“American”) as to claims for negligence per se and breach of…

MEMORANDUM **

Sonia Braun-Salinas, Guillermo Salinas, and Ester Maeedo (the “Insureds”) appeal the grant of summary judgment to American Family Insurance Group (“American”) as to claims for negligence per se and breach of the implied covenant of good faith and fair dealing. We have jurisdiction under 28 U.S.C. § 1291 . We affirm.

We review the grant of summary judgment de novo. Nolan v. Heald Coll., 551 F.3d 1148, 1153 (9th Cir. 2009). However, if a party opposing summary judgment fails to alert the district court that an outstanding discovery motion precludes summary judgment, the timing of the grant of summary judgment is reviewed for abuse of discretion. Lane v. Dep’t of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008).

I. Negligence Per Se Claim

The Insureds contend that Oregon recognizes a negligence per se claim based on an insurer’s failure to pay insurance benefits in violation of the standard of care set forth in Oregon Revised Statute § 746.230. Oregon’s highest and intermediate courts, however, have allowed a negligence per se claim only where a “negligence claim otherwise exists.” Deckard v. *578 Bunch, 358 Or. 754 , 370 P.3d 478 , 483 n.6 (2016). Because the Insureds…

concurring:

I concur completely in the disposition. Nonetheless, I write separately to express concern regarding the district court’s decision to enter this judgment as final under Rule 54(b). That was problematic.

Rule 54(b) explicitly provides that the court may direct entry of a final judgment of fewer than all claims or parties “only if the court expressly determines that there is no just reason for delay.” There was no such determination here.

More broadly, it is not obvious why there was no just reason for delay in entering a final judgment as to this element of the case, or, alternatively, what reason there was to certify this case for interlocutory appeal. This appears to be a routine insurance dispute raising claims whose partial adjudication is likewise routine. Entering a Rule 54(b) final judgment promoted a disfavored piecemeal appeal. See Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 10 , 100 S.Ct. 1460 , 64 L.Ed.2d 1 (1980). Adjudicating the bad faith and negligence per se claims in this appeal does not guarantee that we will not be faced with another appeal on the remaining contract claim. Indeed, allowing the contract claim to proceed at the district…