FILED

NOT FOR PUBLICATION

MAR 12 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

C. DEWAYNE LUCKETT, a Washington No. 20-35337

resident, D.C. No. 2:19-cv-00170-RAJ Plaintiff-Appellant,

v. MEMORANDUM*

STATE FARM MUTUAL

AUTOMOBILE INSURANCE

COMPANY, a foreign corporation doing business in Washington,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submitted March 1, 2021** Seattle, Washington

Before: TASHIMA, RAWLINSON, and BYBEE, Circuit Judges.

* 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. See Fed. R. App. P. 34(a)(2). Plaintiff-appellant C. Dewayne Luckett appeals the district court’s entry of

summary judgment in favor of defendant-appellee State Farm Auto Insurance

Company on Luckett’s declaratory relief and bad faith claims arising out of his

claim for Underinsured Motorist (UIM) benefits from his State Farm policy.1 We

have jurisdiction under 28 U.S.C. § 1291. We review the district court’s grant of

summary judgment de novo and may affirm the district court on any basis

supported by the record. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th

Cir. 2009) (citation omitted). We affirm.

The district court correctly determined that Luckett was not entitled to UIM

benefits under his policy because he had already received all that he was “legally

entitled to recover” through settlement. See Wash. Rev. Code § 48.22.030(1). The

purpose of UIM coverage is to “place the insured in the same position as if the

tortfeasor carried [adequate] liability insurance.” Dayton v. Farmers Ins. Grp., 876

P.2d 896, 898 (Wash. 1994) (en banc). Luckett received the entire amount of the

damages he was awarded through a post-judgment settlement, except for a small

portion, which he waived to satisfy the judgment in his favor. Allowing Luckett to

1 Luckett also brought claims under Washington’s Insurance Fair Conduct Act (Wash. Rev. Code § 48.30.015) and Consumer Protection Act (Wash. Rev. Code § 19.86.090). Luckett did not raise these issues in his opening brief, and has waived them on appeal. See Paciulan v. George, 229 F.3d 1226, 1230 (9th Cir. 2000). 2 also recover UIM benefits would contravene Washington law by effectively

allowing him a double recovery and would place him in a better position by having

been struck by an underinsured driver as opposed to an adequately insured driver.

See id.; Ellwein v. Hartford Accident & Indem. Co., 15 P.3d 640, 647 (Wash. 2001)

(en banc), overruled on other grounds by Smith v. Safeco Ins. Co., 78 P.3d 1274

(Wash. 2003) (en banc).

Further, Luckett was not entitled to receive UIM benefits for damages

arising out of his own contributory negligence. In Washington, UIM coverage

“extends no farther than the legal liability of the involved tortfeasors, if any.”

Allstate Ins. Co. v. Dejbod, 818 P.2d 608, 611 (Wash. Ct. App. 1991). Standard

liability insurance and UIM coverage work in tandem to “fully compensate

claimants for those amounts that they are legally entitled to recover from liable

tortfeasors.” Id. (citations omitted). Once Luckett accepted the settlement

agreement in exchange for satisfaction of judgment, he was no longer legally

entitled to damages from the tortfeasor. See Dayton, 876 P.2d at 898 (“UIM

carriers are not compelled to pay when the same recovery could not have been

obtained from the [under]insured tortfeasor.” (citation omitted)). The judgment

being satisfied, Luckett was no longer legally entitled to recover from his UIM

policy.

3 The district court properly rejected Luckett’s bad faith claim. The insurer in

a UIM dispute must deal with its insured “fairly and in good faith.” Ki Sin Kim v.

Allstate Ins. Co., Inc., 223 P.3d 1180, 1192 (Wash. Ct. App. 2009); see also Wash.

Rev. Code § 48.01.030. However, the insurer need not elevate the insured’s needs

above its own and does not breach its duty if there is a reasonable explanation for

its actions. See Keller v. Allstate Ins. Co., 915 P.2d 1140, 1145 (Wash. Ct. App.

1996). State Farm’s denial of Luckett’s UIM claim was not only reasonable, it was

correct. And the declarations Luckett submitted to support his bad faith claim did

not overcome the fact that he was not legally entitled to recover UIM benefits, nor

did they demonstrate an issue of fact regarding State Farm’s claims-handling

procedures. Thus, the district court did not err in granting summary judgment on

Luckett’s bad faith claim.2

Last, the district court did not err by refusing to certify a question regarding

State Farm’s setoff to the Washington Supreme Court. A federal court may certify

questions of state law to the Washington Supreme Court if the disputed issue is not

“clearly determined” and is “necessary . . . to dispose of [the case].” Wash. Rev.

2 The district court appropriately exercised its discretion to deny Luckett’s request for additional discovery under Federal Rule of Civil Procedure (FRCP) 56(d) as it was unlikely that further discovery would have generated a genuine issue of material fact. See SEC v. Stein, 906 F.3d 823, 833 (9th Cir. 2018). 4 Code § 2.60.020; Amaker v. King County, 540 F.3d 1012, 1015 (9th Cir. 2008).

Certification is optional, however, and a district court’s refusal to certify a question

is reviewed for abuse of discretion. Riordan v. State Farm Mut. Auto. Ins. Co., 589

F.3d 999, 1009 (9th Cir. 2009). As discussed, the district court’s interpretation of

Washington law—and its refusal to certify the issue to the Washington

courts—was reasonable. The district court did not abuse its discretion.3

AFFIRMED.

3 We have also considered whether we should certify a question to the Washington Supreme Court and have concluded that certification of any state law question is “[un]necessary . . . to dispose of [this case].” See Wash. Rev. Code § 2.60.020. 5