Northwestern Mutual Life Insurance Company v. Richard L. Koch

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY,
Plaintiff-counter-defendant -
Appellee,
v.
RICHARD L. KOCH,
Defendant-counter-claimant -
Appellant.
No. 11-35976
D.C. No. 3:08-CV-05394-BHS
MEMORANDUM*
Appeal from the U.S. District Court
for Western Washington, Tacoma
Benjamin H. Settle, District Judge, Presiding
Submitted April 10, 2013 **
Seattle, Washington
FILED
APR 12 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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*** The Honorable Raner C. Collins, District Judge for the U.S. District
Court for the District of Arizona, sitting by designation.
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Before: D.W. NELSON and CALLAHAN, Circuit Judges, and COLLINS, District
Judge.***
Richard L. Koch appeals the district court’s order granting Northwestern
Mutual Life Insurance Company’s Motion to Correct Judgment pursuant to Federal
Rule of Civil Procedure 60(a). We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
The district court did not err in correcting its Summary Judgment Order
under Rule 60(a) to clarify that both parties had to return any payments they
received under disability insurance policy no. D942877. Washington law required
Koch to repay any insurance benefits he received under the rescinded policy in
order to return Northwestern to its pre-contract position. See Simonson v. Fendell,
675 P.2d 1218, 1222 (Wash. 1984) (en banc); see also Johnson v. Allstate Ins. Co.,
108 P.3d 1273, 1277 (Wash. 2005) (insurer entitled to reimbursement of all claim
payments made where material concealment and misrepresentation voided policy).
Clarifying that Koch was required to return the benefits he received was a proper
correction to a judgment under Rule 60(a). See Garamendi v. Henin, 683 F.3d
1069, 1079 (9th Cir. 2012) (“Rule 60(a) allows a court to clarify a judgment in
order to correct a failure to memorialize part of its decision, to reflect the necessary

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implications of the original order, to ensure that the court’s purpose is fully
implemented, or to permit enforcement.”) (internal quotation marks omitted).
Because the record “contains nothing suggesting that the corrected judgment[] [is]
in any way inconsistent with the original intent of the court,” id. at 1080, the
court’s Rule 60(a) order served an appropriate clarifying purpose, id. at 1081.
AFFIRMED.

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