Steven E. Barron, an individual; v. American Family Mutual Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN E. BARRON, an individual; et al.,
Plaintiffs-Appellants,
v.
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
Defendant-Appellee.
No. 17-35737
D.C. No. 3:16-cv-05576-BHS
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted October 10, 2018
Seattle, Washington
Before: BLACK,** PAEZ, and BEA, Circuit Judges.
Plaintiffs-Appellants Steven E. Barron, Marc W. Hillestad, Christine L.
Hillestad, Irene Diep,1 Raymond Owens, and Tammy Owens appeal the district
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Susan H. Black, United States Circuit Judge for the
U.S. Court of Appeals for the Eleventh Circuit, sitting by designation.
1 Plaintiff-Appellant Frank E. Schoen passed away on June 28, 2018. Diep is
the executor of Schoen’s estate. Plaintiffs-Appellants have filed an unopposed
FILED
OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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court’s interlocutory order partially granting summary judgment in favor of
Defendant-Appellee American Family Mutual Insurance Company. We have
jurisdiction2 under 28 U.S.C. § 1292(b). And we review de novo the district
court’s summary-judgment ruling. Branch Banking & Tr. Co. v. D.M.S.I., LLC,
871 F.3d 751, 759 (9th Cir. 2017).
Under Washington law, courts interpreting insurance policies must look to
the “whole contract, giving it a fair, reasonable, and sensible construction.”
Holden v. Farmers Ins. Co., 239 P.3d 344, 347 (Wash. 2010) (en banc) (internal
quotations omitted). That construction must be the same “that an average person
purchasing insurance would give the contract.” Id. (internal quotations omitted).
The dispute in this case centers on the district court’s interpretation of policy
language defining “Actual Cash Value” as “the amount it costs to repair or replace
motion to substitute Diep as a party under Federal Rule of Appellate Procedure
43(a)(1). That motion is granted.
2 This Court previously issued an order asking the parties to address whether
the operative pleadings adequately alleged the parties’ citizenships for purposes of
establishing diversity jurisdiction. In response to that order, Plaintiffs-Appellants
submitted a letter and a declaration stating that Raymond Owens and Tammy
Owens were citizens of California when they were added as parties. We construe
Plaintiffs-Appellants’ submission as a motion to supplement the record, which we
now grant. Based on the declaration, we are satisfied that complete diversity of
citizenship is established. See Sun Printing & Publ’g Ass’n v. Edwards, 194 U.S.
377, 382 (1904) (“The whole record . . . may be looked to, for the purpose of
curing a defective averment of citizenship, where jurisdiction in a Federal court is
asserted to depend upon diversity of citizenship . . . .”).

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property with property of like kind and quality less depreciation for physical
deterioration and obsolescence.” We agree with the district court that, under this
policy language, age may be considered when calculating depreciation as long as
age is linked to physical deterioration and obsolescence.
AFFIRMED.

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