NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 12 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH HUMBERT, No. 20-35822

Plaintiff-Appellant, D.C. No. 3:19-cv-01740-SB

v.

MEMORANDUM*

LIBERTY MUTUAL FIRE INSURANCE

COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted July 7, 2021** Portland, Oregon

Before: O’SCANNLAIN, PAEZ, and BENNETT, Circuit Judges.

In this diversity action, Kenneth Humbert sued Liberty Mutual Fire

Insurance Company (“Liberty”) for breach of an insurance policy (“Policy”). The

district court granted summary judgment to Liberty, and Humbert appeals that

* 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). decision. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

MDU Resources Group, Inc. (“MDU”), the “First Named Insured” under the

Policy, elected in writing to lower the Policy’s uninsured/underinsured motorist

(“UM/UIM”) benefits to $25,000 per person (“Election”). The issue is whether

Oregon Revised Statutes § 742.502 prevented MDU from making the Election on

behalf of the other named insureds under the Policy.

Humbert concedes that, applying federal rules of statutory construction, the

plain and unambiguous language of the statute allowed MDU to make the Election

on behalf of the other named insureds. See Or. Rev. Stat. § 742.502(2)(a) (“A

motor vehicle bodily injury liability policy must have the same limits for uninsured

motorist coverage as for bodily injury liability coverage unless a named insured in

writing elects lower limits.” (emphasis added)). Humbert claims, however, that the

result would be the opposite under Oregon’s rules of statutory construction because

Oregon courts must consider legislative history even when a statute is

unambiguous.1 This argument is unavailing. Although Oregon courts must

consider legislative history, State v. Gaines, 206 P.3d 1042, 1050–51 (Or. 2009)

(en banc), “text and context remain primary, and must be given primary weight in

the [statutory construction] analysis,” id. at 1050. Moreover, “[w]hen the text of a

statute is truly capable of having only one meaning, no weight can be given to

1 The parties agree that we should apply Oregon’s rules of statutory construction.

2 legislative history that suggests—or even confirms—that legislators intended

something different.” Id. at 1051.

The relevant text of § 742.502 is unambiguous. The statute requires only

“a” named insured to make the election, and nothing in the statute suggests that “a

named insured” means anything but one named insured. Nor does anything in the

statute suggest that one named insured cannot make a valid and binding election on

behalf of other named insureds. Because the relevant statutory text is “capable of

having only one meaning,” we give no weight to the legislative history identified

by Humbert.2 Gaines, 206 P.3d at 1051. Thus, § 742.502 allowed MDU to make

the Election on behalf of the other named insureds.

We reject Humbert’s remaining arguments because they are policy

arguments on why applying the statute according to its plain terms would be

unfair. See Brown v. Saif Corp., 391 P.3d 773, 793 (Or. 2017) (“Arguments about

whether [a statute] is fair or produces results at odds with public policy are better

directed to the legislature.”). Moreover, we see no unfairness. The Policy

provides that the term “Named Insured” includes only the “First Named Insured”

(i.e., MDU) and organizations in which the “First Named Insured owns an interest

therein of more than 50%” (and which are listed in the endorsement schedule).

2 The only “legislative history” identified by Humbert is one isolated statement by a non-legislator.

3 Because “Named Insureds” under the Policy include only MDU and entities that

MDU controls, there is no apparent unfairness in applying the statute here, as

MDU may elect to lower limits only for itself and other named insureds that it

actually controls.

AFFIRMED.3

3 We deny Humbert’s motion to certify a question to the Oregon Supreme Court (Dkt. No. 18) because this case involves the straightforward application of Oregon’s rules of statutory construction to an unambiguous statute.

4