Tamara Barnhart v. Philadelphia Indemnity Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMARA BARNHART,
Plaintiff-counter-
defendant-Appellant,
v.
PHILADELPHIA INDEMNITY
INSURANCE COMPANY,
Defendant-counter-claimant-
Appellee.
No. 23-35216
D.C. No. 1:21-cv-00009-SPW
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted December 6, 2023**
Portland, Oregon
Before: BERZON, NGUYEN, and MILLER, Circuit Judges.
Tamara Barnhart appeals the district court’s order granting summary
judgment in favor of Philadelphia Indemnity Insurance Company. We have
* 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).
FILED
DEC 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Progressive Cas. Ins.
v. Owen, 519 F.3d 1035, 1037 (9th Cir. 2008), we affirm.
When interpreting the language of an insurance policy governed by Montana
law, we assign terms “their usual, common sense meaning as viewed from the
perspective of a reasonable consumer of insurance products.” Christian v. United
Fire & Cas. Co., 530 P.3d 456, 459 (Mont. 2023) (quoting Steadele v. Colony Ins.,
260 P.3d 145, 149 (Mont. 2011)). “If the language of the policy is clear and
explicit, [we] may not rewrite the contract but must enforce it as written.” Daniels
v. Gallatin County, 513 P.3d 514, 518 (Mont. 2022).
The Youth Dynamics, Inc. policy covers “[a]nyone ‘occupying’ a covered
‘auto’ or a temporary substitute for a covered ‘auto.’” Although the policy does
not define “temporary substitute,” it provides that “[t]he covered ‘auto’ must be out
of service because of its breakdown, repair, servicing, ‘loss’ or destruction.”
“Substitute” means one particular thing that stands in for another. See Substitute,
Merriam-Webster, https://perma.cc/NQH7-36XQ (last visited Oct. 31, 2023)
(defining “substitute” as “a person or thing that takes the place or function of
another”).
Under this provision’s first sentence, “a temporary substitute” takes the
place or function of “a covered ‘auto.’” Under the second sentence, a temporary
substitute does not take the place of any covered auto, but rather “[t]he covered

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‘auto’” that is “out of service because of its breakdown, repair, servicing, ‘loss’ or
destruction” (emphasis added). See Doe 1 v. Reddit, Inc., 51 F.4th 1137, 1142 n.1
(9th Cir. 2022) (“[T]he use of a definite article with a singular noun speaks to a
‘discrete thing.’” (quoting Niz-Chavez v. Garland, 141 S. Ct. 1474, 1483 (2021))),
cert. denied, 143 S. Ct. 2560 (2023).
While this language can be ambiguous in certain contexts, see, e.g.,
Stonehocker v. Gulf Ins., 368 P.3d 1187, 1192 (Mont. 2016), it is not ambiguous
here. Barnhart’s vehicle was not, as in Stonehocker, “put to the same use to which
the covered vehicle would have been put but for its withdrawal from service.” Id.
The covered unavailable vehicle was in Bozeman, whereas Barnhart worked in
Billings. Nothing in the record suggests that the vehicle garaged in Billings would
have been used that day in Bozeman, 140 miles away, had it not been out of
service. As Barnhart’s vehicle was therefore not a “substitute” for the covered
auto, the policy is inapplicable.
AFFIRMED.

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