                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 13 2010

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

AMERICAN FAMILY MUTUAL                           No. 09-17202
INSURANCE COMPANY, a Wisconsin
corporation,                                     D.C. No. 2:07-cv-02237-NVW

              Plaintiff - Appellant,
                                                 MEMORANDUM*
  v.

NATIONAL FIRE & MARINE
INSURANCE COMPANY, a foreign
corporation; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                     Neil V. Wake, District Judge, Presiding

                    Argued and Submitted November 5, 2010
                            San Francisco, California

Before: HALL and THOMAS, Circuit Judges, and RESTANI, Judge.**



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jane A. Restani, Judge of the United States Court of
International Trade, sitting by designation.
      Plaintiff-appellant American Family Mutual Insurance (“American Family”)

appeals the district court’s summary judgment order in favor of National Fire &

Marine Insurance Company (“National Fire”) and Owners Insurance Company

(“Owners”) (collectively “defendants”). American Family seeks indemnification

from defendants for legal defense it is providing on behalf of George F. Tibsherany

Development Corporation (“GFTDC”) in a construction defect suit. The district

court concluded that American Family failed to produce sufficient evidence to

invoke the mailbox rule with regards to the tender letters and that GFTDC

breached the notice provisions in the defendants’ policies. The district court also

found that Owners was not equitably estopped from denying coverage. We have

jurisdiction under 28 U.S.C. § 1291 and we reverse and remand.

      American Family asserts that it produced sufficient evidence to invoke a

rebuttable presumption of delivery under the mailbox rule with regards to the

insurance tender letters and that it provided sufficient notice of the construction

defect suit to the defendants. In the context of summary judgment, the Court must

view the evidence in the light most favorable to American Family. Singh v.

Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010). The district court erred in granting

summary judgment because there are unresolved issues of material fact as to




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whether the tender letters were mailed and whether notice was properly given. See

Singh, 618 F.3d at 1088.

      American Family also contends that the district court abused its discretion in

refusing to consider portions of the record pertaining to its estoppel claim, which it

failed to cite in its briefs, but corrected at oral argument. Am. Family Mut. Ins. Co.

v. Nat’l Fire & Marine Ins. Co., No. CV07-2237-PHX-NVW, 2009 WL 2870195

at *10 (D. Az. Sept. 3, 2009). The district court abuses its discretion by excluding

evidence if the exclusion is both “manifestly erroneous” and prejudicial. Orr v.

Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). A local rule states that a party

opposing summary judgment shall file a statement and support each fact in their

statement with “a specific admissible portion of the record.”1 LRCiv 56.1(b). This

district court abused its discretion by excluding the evidence because (1) it was

“manifestly erroneous” for the Court to exclude the evidence after American

Family diligently attempted to cure the minor and inadvertent omission during oral

argument and (2) American Family was prejudiced because it was not permitted to

present crucial evidence supporting the reliance prong of its estoppel claim. See




      1
       The local rules are silent as to what the district court must do if a fact is not
properly supported by a citation to the record. See LRCiv 56.
                                           3
Orr, 285 F.3d at 773; see also Acosta v. Phx. Indem. Ins. Co., 153 P.3d 401, 405

(Ariz. Ct. App. 2007).

      REVERSED and REMANDED.




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