                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 30 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KATHRYN COX; BEVERLY HAWLEY;                     No.   15-35517
RICHARD HAWLEY, husband and wife;
WILLIAM MARK SMITH; NADINE                       D.C. No. 2:13-cv-02288-MJP
SMITH, husband and wife; CHERYL
GRANT; JILL ORTIZ; THOMAS
PRIGMORE; SATOKO PRIGMORE,                       MEMORANDUM*
husband and wife; ROBERT WALLA;
KRISTINE WALLA, husband and wife;
DARYL STUART; LAUREL STUART,
husband and wife; DOUGLAS SUNDBY;
CYNDI SUNDBY, husband and wife;
CHRIS STUART; MEGAN WALLA;
THOMAS HUBER; DAVID HUBER;
DANIEL O’NEAL; PATRICIA O’NEAL,
husband and wife; DALE
HOLLINGSWORTH; RUTH
HOLLINGSWORTH, husband and wife;
SARAH HOLLINGSWORTH; NICOLE
TIEDEMAN; DERRY TIEDEMAN,
husband and wife; TRACY ZICHUHR;
SANDY ZICKUHR, husband and wife;
ZOE ZICKUHR,

              Plaintiffs-Appellees,

 v.

CONTINENTAL CASUALTY


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
COMPANY,

         Defendant-Appellant.



KATHRYN COX; BEVERLY HAWLEY;          No.   15-35525
RICHARD HAWLEY, husband and wife;
WILLIAM MARK SMITH; NADINE            D.C. No. 2:13-cv-02288-MJP
SMITH, husband and wife; CHERYL
GRANT; JILL ORTIZ; THOMAS
PRIGMORE; SATOKO PRIGMORE,
husband and wife; ROBERT WALLA;
KRISTINE WALLA, husband and wife;
DARYL STUART; LAUREL STUART,
husband and wife; DOUGLAS SUNDBY;
CYNDI SUNDBY, husband and wife;
CHRIS STUART; MEGAN WALLA;
THOMAS HUBER; DAVID HUBER;
DANIEL O’NEAL; PATRICIA O’NEAL,
husband and wife; DALE
HOLLINGSWORTH; RUTH
HOLLINGSWORTH, husband and wife;
SARAH HOLLINGSWORTH; NICOLE
TIEDEMAN; DERRY TIEDEMAN,
husband and wife; TRACY ZICHUHR;
SANDY ZICKUHR, husband and wife;
ZOE ZICKUHR,

         Plaintiffs-Appellants,
v.

CONTINENTAL CASUALTY
COMPANY,

         Defendant-Appellee.



                                  2
                    Appeal from the United States District Court
                      for the Western District of Washington
                    Marsha J. Pechman, District Judge, Presiding

                      Argued and Submitted February 10, 2017
                               Seattle, Washington

Before: PAEZ and CALLAHAN, Circuit Judges, and SELNA,** District Judge.

      Continental Casualty Company (“Continental”) appeals the District Court’s

application of judicial estoppel, denial of its motion for judgment as a matter of

law, inclusion and exclusion of certain jury instructions, and award of attorneys’

fees. Kathryn Cox and other former patients of Dr. Henri Duyzend (collectively,

“the Plaintiffs”) cross appeal the District Court’s award of attorneys’ fees,

dismissal of their Insurance Fair Conduct Act (“IFCA”) claim, and reduction of the

jury’s award. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm in

part, vacate in part, and remand.1

      For judicial estoppel to apply, the following must be true: (1) the party to be

estopped asserted an earlier position that is “clearly inconsistent” with a position it

later attempts to assert; (2) the court relied on the earlier position; and (3) allowing

the party to change its position would be inequitable. See United States v. Ibrahim,

      **
             The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
      1
             As the parties are familiar with the facts and procedural history, we
restate them here only as necessary to explain our decision.
                                            3
522 F.3d 1003, 1009 (9th Cir. 2008) (quoting New Hampshire v. Maine, 532 U.S.

742, 750–51 (2001)). The application of judicial estoppel is reviewed for abuse of

discretion. See Wagner v. Prof’l Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1040 (9th

Cir. 2004).

      Here, the District Court did not abuse its discretion. During discovery,

Continental told the District Court that the Plaintiffs were not entitled to certain

coverage-related documents because “[s]uch files [we]re immaterial in cases like

this one where coverage [wa]s not at issue.” The District Court reasonably

interpreted this unqualified representation to mean that Continental did not intend

to allege that Dr. Duyzend had engaged in fraudulent activity because, under

Washington law, “[a]n insured need only make one material misrepresentation to

void all coverage under the entire policy.” Ki Sin Kim v. Allstate Ins. Co., 223 P.3d

1180, 1188 (Wash. Ct. App. 2009). Thus, even if Washington law allows an

insurer to assert fraud against extra-contractual claims while conceding coverage,

the District Court did not abuse its discretion in finding judicial estoppel on the

basis of Continental’s assertion that coverage-related documents were irrelevant

when later it asserted fraud defenses for which such documents would be relevant.

Accordingly, the first requirement for judicial estoppel is satisfied.




                                           4
      The same is true for the second requirement. Although the order denying

the Plaintiffs’ motion to compel production of coverage-related documents stated

that the denial was based on the Plaintiffs not asserting coverage claims, the

District Court later explicitly stated in its summary judgment order that it had

indeed relied on Continental’s representation regarding coverage in making its

ruling. The District Court’s reliance is further shown in its broader discussion of

the estoppel issue in the summary judgment order, which makes clear that the

District Court would not have denied the Plaintiffs’ discovery motion had it known

that Continental would later assert defenses that could possibly be defeated with

coverage-related documents.

      Last, the evidence before the District Court at the time it made its judicial

estoppel ruling supports the conclusion that it would have been inequitable to

allow Continental to assert fraud-based defenses. The Plaintiffs produced

documents showing that Continental redacted coverage-related information, which

would have contained “[a]ny assessment by Continental of Dr. Duyzend’s alleged

fraud,” and, thus, potentially would be critical to mounting an attack on the fraud-

based defenses. See Swanson v. Solomon, 314 P.2d 655, 657 (Wash. 1957) (stating

that fraud requires materiality and reliance by the listener). Continental, however,

failed to even identify and discuss in its summary-judgment briefing any evidence


                                           5
demonstrating that it had produced coverage-related documents. While

Continental later attached evidence to its motion for reconsideration indicating that

it had produced some, but not all, of the coverage-related documents, motions for

reconsideration “may not be used to raise arguments or present evidence for the

first time when they could reasonably have been raised earlier in the litigation.”

Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880

(9th Cir. 2009) (citation omitted). As a result, Continental failed to show that the

District Court abused its discretion in applying judicial estoppel.

      Contrary to Continental’s charge, the District Court did not apply judicial

estoppel in this case simply because Continental failed to contest coverage; rather,

the District Court applied the doctrine based on a specific representation that

Continental made during discovery, as well as Continental’s apparent refusal to

turn over coverage-related documents. Thus, Continental was not punished for

being a good insurer and accepting coverage without dispute, but instead because

of its attempt to “play[] fast and loose with the courts,” which is a legitimate basis

for judicially estopping a party. Wagner, 354 F.3d at 1044 (citation omitted).

      The District Court did not err in denying Continental’s motion for judgment

as a matter of law. Although the Plaintiffs’ evidence did not establish the most

direct line of causation, when viewed in the light most favorable to the Plaintiffs,


                                           6
see Experience Hendrix L.L.C. v. Hendrixlicensing.com Ltd., 762 F.3d 829, 842

(9th Cir. 2014), it was sufficient to satisfy the cause-in-fact requirements of their

Consumer Protection Act (“CPA”) and negligence claims. The evidence revealed

a series of missteps in Continental’s processing of the claims against Dr. Duyzend

and provided a basis for the jury to find that these missteps injured Dr. Duyzend.

As for Continental’s legal-causation argument, it too is unavailing. First,

Continental waived this argument by failing to specifically raise it in its summary-

judgement motion, at the close of the Plaintiffs’ case in chief, or in its post-trial

motion. See, e.g., Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th Cir. 1996).

Second, even if the argument was not waived, the line of causation in this case was

not so attenuated or, Continental so blameless, as to make legal causation wanting.

See Christen v. Lee, 780 P.2d 1307, 1321 (Wash. 1989) (en banc) (stating that

“[t]he legal causation prong of proximate cause involves policy considerations of

how far the consequences of a defendant’s acts should extend”). Therefore, no

relief is warranted on this ground.

      Likewise, Continental’s challenge to the District Court’s instructions also

fails. For starters, Continental’s proposed comparative-fault instruction swept too

broadly, and, therefore, did not accurately state the law. Specifically, the proposed

instruction did not say that intentional acts cannot constitute fault for purposes of


                                            7
comparative fault. See Welch v. Southland Corp., 952 P.2d 162, 165–66 (Wash.

1998) (en banc). This omission is significant because there was evidence that Dr.

Duyzend had engaged in intentional misconduct. Thus, Continental potentially

could have gained an unfair advantage if the proposed instruction had been given

because the jury could have assigned fault based on conduct that should not have

been considered for that purpose. When a party “ask[s] [a] court to instruct upon a

subject as to which we assume they were entitled to an instruction, but they framed

an instruction which stated the doctrine in a manner more favorable to them than

the law permits[, t]he court [is] under no duty to redraw their instruction for them.”

Ursich v. da Rosa, 328 F.2d 794, 797 (9th Cir. 1964). Accordingly, the District

Court did not err in refusing to give or to sua sponte amend Continental’s proposed

comparative-fault instruction.

      Even if the District Court had a duty to redraw legally-incorrect instructions,

Continental still was not entitled to a comparative-fault instruction because the

evidence did not support the issuance of one. First, the record does not show that

the Plaintiffs’ initial attorney and the dentist who purchased Dr. Duyzend’s

practice owed Dr. Duyzend any duty. See Christen, 780 P.2d at 1311 (stating that

an essential element for negligence is “the existence of a duty owed to the

complaining party”). Second, there was no expert testimony regarding how the


                                           8
attorney that Continental hired to represent Dr. Duyzend violated his duty of care.

See Geer v. Tonnon, 155 P.3d 163, 170–71 (Wash. Ct. App. 2007). Third, while

the evidence did suggest that Dr. Duyzend engaged in intentional misconduct, it

did not show that he engaged in conduct that is cognizable for comparative-fault

purposes.

      Assuming, arguendo, that the District Court’s bad-faith instruction

erroneously set a floor for damages, any error was harmless. See Gantt v. City of

L.A., 717 F.3d 702, 707 (9th Cir. 2013) (stating that harmless-error review applies

to alleged instruction errors). The Plaintiffs did not prevail on their bad-faith

claim. Furthermore, the jury’s verdict demonstrates that the jury was able to

distinguish between the instructions for the bad-faith claim and the claims that the

Plaintiffs prevailed on. In light of this, and the strong presumption that a jury

follows the instructions given to it, see Escriba v. Foster Poultry Farms, Inc., 743

F.3d 1236, 1247 (9th Cir. 2014), Continental is not entitled to relief based on the

District Court’s bad-faith instruction.

      The record supports the District Court’s award of attorneys’ fees. Starting

with the lodestar amount, the District Court determined that the Plaintiffs were

entitled to two-thirds of their requested amount because, while there was a

tremendous amount of overlap between the claims in the case, there was a portion


                                           9
of the Plaintiffs’ attorneys’ work that could be segregated from the time they spent

on the CPA claim. Despite the parties’ claims otherwise, the District Court’s

methodology is not flawed, as the District Court was free to allow the Plaintiffs to

recover attorneys’ fees for work their attorneys performed on non-CPA claims, but

only to the extent it believed such work could not be reasonably segregated from

work done on the Plaintiffs’ CPA claim. See Mayer v. Sto Indus., Inc., 132 P.3d

115, 122–23 (Wash. 2006) (en banc). Therefore, because Continental has not

challenged the Plaintiffs’ attorneys’ rates and neither party has cited to any billing

records demonstrating that the lodestar amount was too high or too low, or

provided any other persuasive basis for upsetting this portion of the attorneys’ fees

award, the District Court’s determination must be upheld.

      The District Court’s award of a multiplier must also be upheld. Multipliers

may be awarded based on the contingent nature of success or the quality of work

performed. See Chuong Van Pham v. City of Seattle, Seattle City Light, 151 P.3d

976, 982–83 (Wash. 2007) (en banc). Here, the District Court rationally believed

that both grounds were applicable. The fee agreement between the Plaintiffs and

their attorneys was “pure contingency.” Furthermore, it was far from guaranteed

that the Plaintiffs would prevail in this case, and the record does not show that the

Plaintiffs’ attorneys were already adequately compensated for the substantial risk


                                           10
they took on. Also, in light of the hurdles that the Plaintiffs’ attorneys had to

overcome—for example, “many complex legal and factual issues” and

Continental’s “no-holds-barred litigation strategy,” the District Court was justified

in finding that the quality of the Plaintiffs’ attorneys’ representation supported the

awarding of a multiplier.

      The Plaintiffs’ challenge to the dismissal of their IFCA claim is unavailing.

To bring an IFCA claim, a plaintiff must be a “first party claimant” and be

“unreasonably denied a claim for coverage or payment of benefits by an insurer.”

Wash. Rev. Code § 48.30.015(1). Here, neither of these requirements is satisfied.

The policy in question is not a first party policy; thus, the Plaintiffs, standing in Dr.

Duyzend’s shoes, cannot be a first party claimant. Also, while Continental was

accused of processing the claims against Dr. Duyzend slowly, the Plaintiffs never

alleged that Dr. Duyzend was actually denied coverage or payment of a benefit.

As a result, the District Court did not err in dismissing the Plaintiffs’ IFCA claim.

      Finally, the District Court did abuse its discretion by reducing the jury’s

verdict award. The reduction was based on the District Court’s belief that the jury

was unaware of Continental’s payment to the Plaintiffs. However, this belief was

erroneous, as Continental mentioned its payment at least six times at trial,

including during both its opening statement and its closing argument. See United


                                           11
States v. ASARCO, Inc., 430 F.3d 972, 978 (9th Cir. 2005) (stating that a district

court abuses its discretion when it relies on clearly erroneous facts). Accordingly,

the District Court’s reduction should be vacated and the jury’s verdict reinstated.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




                                          12
