FILED

NOT FOR PUBLICATION

MAR 05 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID CLARK, No. 16-16880

Plaintiff-Appellant, D.C. No. 2:14-cv-02211-SPL

v.

MEMORANDUM*

INDEMNITY INSURANCE COMPANY

OF NORTH AMERICA and

GALLAGHER BASSETT SERVICES,

INC.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Argued and Submitted February 5, 2018 San Francisco, California

Before: D.W. NELSON, TASHIMA, and CHRISTEN, Circuit Judges.

David Clark appeals from the district court’s grant of summary judgment to

defendants Indemnity Insurance of North America and Gallagher Bassett Services,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Inc.1 We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in

part, and remand for further proceedings.

1. Clark argues that Indemnity acted in bad faith by denying his January

claim without reviewing his medical records, as opposed to a summary of them.

“[A]n incomplete pre-denial investigation of an insured’s claim can expose the

insurance company to liability for bad faith,” but the inadequacy of the

investigation has to be material. Aetna Cas. & Sur. Co. v. Superior Court, 778

P.2d 1333, 1336 (Ariz. Ct. App. 1989). Clark does not explain how examination

of his medical records, rather than a summary of them, might have revealed facts

supporting coverage for his neck injury under the January claim. We therefore

affirm the district court’s dismissal of this part of Clark’s claim.

Moreover, Indemnity had ample reason to reject the January claim. Clark

raised his injury more than a month after it was allegedly sustained and informed

the hospital where the fusion surgery was performed that his injury was not

suffered in the course of his employment. Besides casting doubt on whether the

cervical injury was compensable as work-related, Clark’s decision to use his own

group health insurance policy deprived Tressler of easy access to his medical

records. The Employer’s Report of Industrial Injury which stated that Clark

1 As the parties are familiar with the facts, we do not recount them here. 2 sustained a “blown disk in unknown area of back due to unknown cause” did not

clarify matters. On the basis of what was known at that time, and with a statutory

deadline looming, Indemnity’s denial of Clark’s January claim could not have been

unreasonable. See Deese v. State Farm Mut. Auto. Ins. Co., 838 P.2d 1265, 1268

(Ariz. 1992). We therefore find no error in the district court’s dismissal of this part

of Clark’s claim.

2. Although it is a close call, we are persuaded that a rational jury could

return a verdict for Clark based on Indemnity’s conduct after learning of the nexus

between the neck injury and his November claim. While an insurer is not required

to advise the insured of every fact or provision that may be applicable to him to

her, “the duty of good faith encompasses some obligation to inform the insured

about the extent of coverage and his or her rights under the policy and to do so in a

way that is not misleading.” Nardelli v. Metro. Grp. Prop. & Cas. Ins. Co., 277

P.3d 789, 800 (Ariz. Ct. App. 2012) (citations omitted). Clark asserts that he

sought to “consolidate [his claim] in order to obtain coverage” and there is

evidence he did. For example, Tressler noted on July 24, 2013, that Clark “[wa]s

now alleging that he had cervical pain/injury after his 11/21 thumb injury.” As of

that date, Tressler knew that the Independent Medical Examination had associated

the neck injury and the November industrial accident, and that Clark had requested

3 consolidation of his insurance claims. Thus, even if Tressler was not at liberty to

“speculate” on how Clark wished his claim for benefits to be handled, jurors could

decide that she could and should have inquired. She did not, and this omission

precludes summary judgment.

Indemnity suggests that coverage under the November accident claim could

have been properly rejected because “Indemnity’s investigation . . . revealed that

Clark had prior cervical claims, despite Clark’s original representation that he had

never injured his cervical spine before this claim.” The documents cited in its

appellate brief, however, do not show when Tressler became aware of Clark’s prior

medical history. We thus reverse the grant of summary judgment in favor of

Indemnity on this part of Clark’s claim.

3. Clark also contends that Indemnity’s delay in paying benefits after they

were awarded by the Industrial Commission of Arizona amounted to bad faith.

This delay, however, is at least equally attributable to Clark’s attorney who

provided the debt collector with the claim number for the January accident

claim—which had been denied as moot—rather than the claim number for the

November accident claim under which benefits were to be paid. Indemnity moved

quickly to settle the debt collection action brought against Clark once it became

aware of the lawsuit.

4 4. Finally, Clark’s appellate brief does not “specifically and distinctly” raise

any objection to the district court’s grant of summary judgment to Gallagher.

United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005) (citations omitted).

Hence, any such argument is waived, and we affirm the grant of summary

judgment to Gallagher.

AFFIRMED in part, REVERSED in part, and REMANDED. Each

party shall bear his or its own costs on appeal.

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