                                                                              FILED
                            NOT FOR PUBLICATION                                NOV 17 2010

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ALLSTATE INSURANCE COMPANY,                        No. 09-35626
an Illinois corporation,
                                                   D.C. No. 3:01-cv-01686-KI
              Plaintiff - Appellee,

  v.                                               MEMORANDUM *

RALPH B. BREEDEN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding

                       Argued and Submitted October 5, 2010
                                 Portland, Oregon

Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.

       Ralph Breeden (“Breeden”) appeals the district court’s judgment in favor of

Allstate Insurance (“Allstate”) following a jury’s verdict in favor of Allstate. He

challenges several of the district court’s rulings relating to the trial. Breeden also

argues that the court erred in granting summary judgment in favor of Allstate on


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
his counterclaim, and appeals the district court’s denial of his post-verdict motion

for judgment as a matter of law and a new trial. We have jurisdiction pursuant to

28 U.S.C. § 1291. Finding no error in any of the district court’s rulings, we affirm.

We address each of Breeden’s contentions below.

1.    First, Breeden contends that the district court’s jury instructions on the issue

of reliance were erroneous, and that the court erred in rejecting his proposed

instructions. We reject these arguments.

      Breeden’s fire insurance policy with Allstate is governed by its terms and

Oregon’s Fire Insurance Code, Or. Rev. Stat. § 742.200 et seq. (“Code”). To the

extent that the policy—as drafted by Allstate—does not include provisions

required under Oregon law, it must be construed and applied as if it were in full

compliance with the Code. Or. Rev. Stat. § 742.038. To avoid payment of a claim

on a policy because of the insured’s misrepresentations, “the insurer must show

that the representations are material and that the insurer relied on them.” Or. Rev.

Stat. § 742.208(3). In such circumstances, the “entire policy shall be void.” Or.

Rev. Stat. § 742.208(1).

      The phrase “relied on” means “what it ordinarily means in the common law

fraud context.” Eslamizar v. Am. States Ins. Co., 894 P.2d 1195, 1198-1200 (Or.

Ct. App. 1995). Thus, to prevail on its claim of misrepresentation under §


                                           2
742.208(3), Allstate was required to present “some evidence of a detrimental

action or change in position.” Id. at 1199.

      At trial, the court rejected Breeden’s jury instructions regarding the element

of reliance on Allstate’s misrepresentation claim. We review a district court's

formulation of jury instructions for an abuse of discretion, and we review de novo

whether a jury instruction misstates the law. Wall Data Inc. v. L.A. County

Sheriff's Dep't, 447 F.3d 769, 784 (9th Cir. 2006).

      The district court’s Jury Instruction No. 12 recited Or. Rev. Stat. §

742.208(1) nearly verbatim. Similarly, Jury Instruction No. 15 was closely

patterned on language from Eslamizar. Contrary to Breeden’s argument,

Eslamizar does not require Allstate to show it believed Breeden’s

misrepresentations in order to establish that it relied on those misrepresentations.

Nothing in the court’s other jury instructions misstated the law with respect to the

question of reliance. Therefore, we conclude that the district court’s instructions

were proper and that the court did not err in rejecting Breeden’s proposed jury

instructions.

2.    Next, Breeden challenges the district court’s denial of his motion for

judgment as a matter of law under Federal Rule of Civil Procedure 50(b), and

alternative motion for a new trial under Federal Rule of Civil Procedure 59. When


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the evidence—viewed in the light most favorable to the non-moving party—allows

only one reasonable conclusion as to the verdict, a judgment as a matter of law is

proper. Rudiger Charolais Ranches v. Van De Graaf Ranches, 994 F.2d 670, 672

(9th Cir. 1993). We review de novo a denial of a motion for judgment as a matter

of law. Harper v. City of L.A., 533 F.3d 1010, 1021 (9th Cir. 2008).

We review the denial of a motion for a new trial for an abuse of discretion.

Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1013 (9th Cir. 2007).

      We look to Eslamizar for guidance on what evidence satisfies the reliance

requirement in Or. Rev. Stat. § 742.208. Viewing the evidence presented at trial in

the light most favorable to Allstate, the evidence established that Allstate relied on

Breeden’s misrepresentations for some period of time. Allstate continued to give

him the benefit of the doubt after suspicions arose when it advanced him money

that it would not otherwise have given him. Allstate also lost the opportunity to

investigate adequately the cause of the fire and ultimately incurred extra

investigative expenses as a result of Breeden’s misrepresentations. Therefore, the

district court properly denied Breeden’s Rule 50(b) and Rule 59 motions as to the

issue of Allstate’s reliance.

3.    Breeden also argues that the district court should have granted his Rule

50(b) and 59 motions because, under Oregon law, his insurance policy should be


                                           4
treated as divisible and therefore any misrepresentations on his part should have

voided only the personal property coverage and not the coverage for his real

property. The policy’s language—which is required by Or. Rev. Stat. §

742.208(1)—is plain with respect to Allstate’s ability to avoid payment due to

misrepresentation: “[T]his entire policy shall be void.” It is a bedrock principle of

statutory interpretation that courts “best effectuate the legislative intention by

giving effect to the plain, natural, and ordinary meaning of” words. State v. Clum,

171 P.3d 980, 986 (Or. Ct. App. 2007) (internal quotations omitted). Thus, there is

little room for disagreement about the phrase at issue. The “entire policy shall be

void” has a clear and natural meaning. Breeden’s policy was not divisible between

real and personal property; the governing statute required that the

misrepresentations about his personal property also void his real property

coverage. Therefore, we find no error with the district court’s denial of his

motions on this issue.1

4.    Breeden next argues that the district court should have granted his Rule

50(b) and 59 motions because it abused its discretion when it granted Allstate’s

motion to amend its complaint. Breeden only raised this issue in a heading in his


      1
        Because Breeden’s policy was void and not divisible, we need not address
(1) whether Allstate must pay the policy limits without proof of loss and (2)
whether the policy covered Ms. VanAntwerp’s personal property.

                                            5
opening brief before this court; he made no additional argument and cited no

authority for his position. Because Breeden did not argue his “contentions and the

reasons for them, with citations to the authorities and parts of record on which [he]

relie[d],” we have no basis for concluding that the district court erred. Federal

Rules of Appellate Procedure, 28(a)(9)(A). Even overlooking this deficiency in

Breeden’s brief, we conclude that the district court did not abuse its discretion

when it denied Breeden’s motion to strike Allstate’s third amended complaint, but

allowed Breeden to file a motion in limine and only admitted the evidence Breeden

objected to for the purpose of showing misrepresentation. Therefore, we find no

error with the district court’s denial of his motions on this issue.

5.    Breeden also challenges the district court’s ruling on his Rule 50(b) and 59

motions with respect to its decision to bifurcate the trial. The court, on its own

motion, bifurcated the trial between liability and damages phases. We review the

district court’s decision to bifurcate a trial for abuse of discretion. Counts v.

Burlington N. R. Co., 952 F.2d 1136, 1139 (9th Cir. 1991). Federal Rule of Civil

Procedure 42(b) provides that, “[f]or convenience, to avoid prejudice, or to

expedite and economize, the court may order a separate trial of one or more

separate issues.” See generally, M2 Software, Inc. v. Madacy Entm’t, 421 F.3d

1073, 1088 (9th Cir. 2005); Exxon Co. v. Sofec, Inc., 54 F.3d 570, 575 (9th Cir.


                                            6
1995), aff’d, 517 U.S. 830 (1996).

      Allstate’s liability under the disputed insurance policy was a dispositive

issue; the jury’s verdict on Allstate’s misrepresentation claim obviated the need for

a jury trial on Breeden’s claims for damages, which properly served the goals of

Rule 42(b). We therefore conclude that the district court did not abuse its

discretion in bifurcating the trial and did not err in denying Breeden’s Rule 50(b)

and Rule 59 motions on this issue.

6.     Breeden also challenges an evidentiary ruling by the district court. The

court ruled that the evidence relating to Breeden’s foreclosure and mortgagee was

not relevant to any issue remaining in the case at the time of the trial, and excluded

it. We review a district court's decisions to admit or exclude evidence for abuse of

discretion, Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).

Having carefully reviewed the record, we find no abuse of discretion here because

the evidence excluded bore no relationship to whether Breeden made material

misrepresentations regarding his personal property losses.

7.    Finally, Breeden argues that the district court erred in granting summary

judgment on his counterclaim for intentional infliction of emotional distress

(“IIED”). We review de novo a district court's grant of summary judgment,

viewing the evidence in the light most favorable to the nonmoving party. Long


                                           7
Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 689 (9th

Cir. 2010). Oregon courts have previously rejected IIED claims where the conduct

at issue was an insurance company denying benefits to an individual. State Farm

Mut. v. Berg, 689 P.2d 959 (Or. Ct. App. 1984); Rossi v. State Farm Mut., 752

P.2d 1298 (Or. Ct. App. 1988). Breeden’s IIED claim against Allstate cannot be

meaningfully distinguished from the claims the Oregon Court of Appeals rejected

in Berg and Rossi. The material undisputed facts alleged in Breeden’s IIED claim

are equivalent: an insurance company disputing the amount of coverage it owes to

a beneficiary, and that dispute resulting in significant financial and emotional

hardship for the beneficiary. Thus, in light of Berg and Rossi, the district court did

not err in granting summary judgment to Allstate on Breeden’s IIED claim.

AFFIRMED.




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