                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 20 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

GARY WILLIAMS; NIDENIA                           No. 12-16294
WILLIAMS, individually and as husband
and wife,                                        D.C. No. 2:09-cv-00675-KJD-
                                                 VCF
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                         Submitted November 18, 2014**
                            San Francisco, California




        *
             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).
Before: GOULD and WATFORD, Circuit Judges, and MARTINEZ, District
Judge.***

      This appeal arises from an under insured motorist (“UIM”) coverage dispute

between Gary and Nidenia Williams and their insurance company American

Family Mutual Insurance Company. Appellants Gary and Nidenia Williams

appeal the district court’s order on May 3, 2012 (1) granting American Family’s

motion for summary judgment on their claims of bad faith, violation of the Unfair

Claims Practices Act, lost wages, emotional distress, and punitive damages; and (2)

denying Appellants’ counter motion for summary judgment on the liability of

American Family for Gary Williams’ hip injury, equitable estoppel, and waiver.

Appellants also appeal the district court’s order denying their motion to reconsider

or set aside the court’s summary judgment order on May 3, 2012. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

      1. Appellants contend that the district court erred in granting American

Family’s motion for summary judgment on their bad faith claim. We review the

district court’s decision to grant summary judgment de novo. Del. Valley Surgical

Supply, Inc. v. Johnson & Johnson, 523 F.3d 1116, 1119 (9th Cir. 2008).

Summary judgment is proper if viewing the evidence in the light most favorable to

        ***
             The Honorable Ricardo S. Martinez, District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.

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the nonmoving party, “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

      In Nevada, “every contract imposes upon the contracting parties the duty of

good faith and fair dealing.” Hilton Hotels Corp. v. Butch Lewis Prods., Inc., 862

P.2d 1207, 1209 (Nev. 1993). “To establish a prima facie case of bad-faith refusal

to pay an insurance claim, the plaintiff must establish that the insurer had no

reasonable basis for disputing coverage, and that the insurer knew or recklessly

disregarded the fact that there was no reasonable basis for disputing coverage.”

Powers v. United Servs. Auto. Ass’n, 962 P.2d 596, 604 (Nev. 1998).

      Here, American Family acted reasonably under the UIM policy. It had a

reasonable basis for denying Nidenia Williams’ UIM claim on the grounds that she

was adequately compensated by receiving a medical payment of $4,122 from

American Family and a settlement of $6,500 from the tortfeasor’s insurance

carrier. American Family also had a reasonable basis for contesting Gary

Williams’ UIM claim that his hip injury was caused solely by the automobile

accident, because various doctors’ reports and testimonies showed his hip injury

was a pre-existing condition, resulting from college sports.

      2. Appellants next contend that American Family violated the Nevada

Unfair Claims Practices Act, NEV. REV. STAT. § 686A.310, because it


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unreasonably delayed claim processing. Nevada statutes prohibit insurance

companies from engaging in unfair practices when handling insurance claims.

NEV. REV. STAT. § 686A.310. Here, Appellants did not make a sufficient showing

of any unfair practices by American Family. Appellants made their first formal

UIM demand on October 29, 2008 and filed suit against American Family thirteen

weeks later. A thirteen-week delay is not an unreasonable delay that violates the

Unfair Claims Practices Act. See Zurich Am. Ins. Co. v. Coeur Rochester, Inc.,

720 F. Supp. 2d 1223, 1238 (D. Nev. 2010). Also, some delay was caused by

Appellants’ counsel failing to provide American Family readable medical records.

Weighing the evidence in the light most favorable to Appellants, who produced no

evidence of American Family’s unfair practices, the district court did not err in

granting American Family’s motion for summary judgment on Appellants’ unfair

practices claim.

      3. The district court properly granted American Family’s motion for

summary judgment on Appellants’ claims of lost wages and emotional distress,

because Appellants did not show that they suffered from lost wages or emotional

damages. In contrast, American Family produced letters from Appellants’

employers showing that Appellants did not miss any time at work as a result of the

accident, and Appellants testified in their depositions that they did not suffer from


                                          4
any emotional damages. The district court also properly granted American

Family’s motion for summary judgment on Appellants’ claim of punitive damages,

because Appellants did not show that American Family’s conduct constituted

oppression, fraud, or malice. See NEV. REV. STAT. § 42.005.

      4. Appellants next contend that the district court erred in denying their

counter motion for summary judgment on Gary Williams’ hip injury, equitable

estoppel, and waiver. We disagree. First, American Family produced doctors’

reports and testimonies showing Gary Williams’ pre-existing condition and

creating a genuine factual dispute on whether his hip injury was caused solely by

the automobile accident.

      Second, Appellants did not show that American Family satisfied any of the

four elements required for the application of equitable estoppel. Cheqer, Inc. v.

Painters & Decorators Joint Comm., Inc., 655 P.2d 996, 998–99 (Nev. 1982).

American Family was not aware of Gary Williams’ pre-existing condition when it

made medical payments, and did not intend that its medical payments be

interpreted as its commitment to cover Appellants’ UIM claims. Appellants also

did not show any detrimental reliance or a change of position.

      Third, American Family did not waive its defense on the denial of UIM

coverage. Waiver requires an “intentional relinquishment of a known right,” and


                                         5
an effective waiver “must occur with full knowledge of all material facts.”

Thompson v. N. Las Vegas, 833 P.2d 1132, 1134 (Nev. 1992). Nothing in the

record established or suggested that American Family intended to relinquish its

right to deny or contest Appellants’ UIM coverage.

      5. Appellants finally contend that the district court erred in denying their

motion to reconsider or set aside the court’s May 3, 2012 summary judgment

order, because it discovered a claims manual that constituted newly discovered

evidence. We review the district court’s denial of the motion to reconsider for

abuse of discretion. Sch. Dist. No. 1J, Multnomah Cnty. v. AC&S, Inc., 5 F.3d

1255, 1262 (9th Cir. 1993). To be relieved from a final order granting summary

judgment, the party seeking relief must show that there is newly discovered

evidence within the meaning of Rule 59, that the party seeking relief exercised due

diligence to discover the evidence, and that “the newly discovered evidence must

be of such magnitude that production of it earlier would have been likely to change

the disposition of the case.” Coastal Transfer Co. v. Toyota Motor Sales, U.S.A.,

833 F.2d 208, 211 (9th Cir. 1987). Here, the claims manual is not newly

discovered evidence, because Appellants had possession of the manual five weeks

before entry of summary judgment. See, e.g., Feature Realty, Inc. v. Spokane, 331

F.3d 1082, 1093 (9th Cir. 2003); Coastal Transfer, 833 F.2d at 212. Appellants


                                         6
also did not show that the manual is “of such magnitude that production of it

earlier would have been likely to change the disposition of the case.” Id. at 211.

The district court did not abuse its discretion in denying Appellants’ motion to

reconsider or set aside the court’s May 3, 2012 summary judgment order.

      AFFIRMED.




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