                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 28 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DEANNA EVERETT, AKA Deanna Everett No. 15-35688
Whitley,
                                   D.C. No. 1:14-cv-00121-BLW
          Plaintiff-Appellant,

 v.                                             MEMORANDUM*

AMERICAN GENERAL LIFE
INSURANCE COMPANY, FKA American
General Assurance Company, an insurance
company licensed to do business in the State
of Idaho pursuant to Idaho Code, Title 41,

                Defendant-Appellee.

                   Appeal from the United States District Court
                             for the District of Idaho
                    B. Lynn Winmill, Chief Judge, Presiding

                       Argued and Submitted June 15, 2017
                              Seattle, Washington

Before: BYBEE, M. SMITH, and CHRISTEN, Circuit Judges.

      Deanna Everett appeals the district court’s grant of summary judgment in

favor of American General Life Insurance Company (American General). Everett

claims that American General wrongfully denied her claim for payment under


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
accidental death insurance policies it issued to Everett’s husband, John Whitley,

with Everett as the beneficiary. We reverse and remand.

      1. Everett argues that she was denied due process because the court

excluded the testimony of Whitley’s cardiology physician Dr. Seale in its summary

judgment order, when possible exclusion of expert testimony was not properly

before the court. It was proper for the court to consider whether Everett’s

proffered evidence was admissible because a “court can only consider admissible

evidence in ruling on a motion for summary judgment.” Orr v. Bank of Am., NT &

SA, 285 F.3d 764, 773 (9th Cir. 2002). Further, a party may object to the

admissibility of evidence on summary judgment without filing a separate motion to

strike. See Fed. R. Civ. P. 56(c)(2).

      2. Dr. Seale qualified as a “non-retained expert” pursuant to Federal Rule of

Civil Procedure (Rule) 26(a)(2)(C). As a treating physician, he was qualified to

testify regarding his opinions that “were formed during the course of treatment”

without necessitating a Rule 26(a)(2)(B) expert report. Goodman v. Staples The

Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011). The court erred by

holding on summary judgment that Dr. Seale did not qualify as a treating physician

expert on cause of death because his opinion was not formed during the course of

treatment and was instead formed almost a year after Whitley’s death when he

wrote his opinion in a letter at Everett’s request. The fact that Dr. Seale wrote an


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opinion about events that occurred a year earlier is not conclusive evidence that he

formed the opinion when he wrote it down. Because there is a genuine issue of

fact regarding when Dr. Seale formed his opinion, the issue should not have been

decided on summary judgment.

      3. The court excluded Dr. Seale’s affidavit pursuant to Rule 37(c)(1)

because Everett failed to strictly comply with the Rule 26(a) disclosure

requirements, and this failure was not substantially justified or harmless. The court

abused its discretion by imposing Rule 37(c)(1) sanctions without making requisite

findings in its harmlessness analysis: (1) “whether the claimed noncompliance

involved willfulness, fault, or bad faith,” and (2) whether “lesser sanctions” were

available. R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1247 (9th Cir.

2012). These findings were required because exclusion of Dr. Seale’s affidavit

effectively amounted to dismissal of Everett’s claim. See id. Moreover, we are not

persuaded that Everett’s late disclosure of Dr. Seale’s affidavit was prejudicial.

Everett informally gave American General Dr. Seale’s opinion letter on Whitley’s

cause of death on June 5, 2014, and disclosed Dr. Seale as an expert on January 2,

2015. Even if these disclosures were technically inadequate, American General

was long aware of Dr. Seale’s identity and opinion, and even deposed him and

identified him as its own expert witness.

      4. Everett argues that American General waived its objection to Dr. Seale’s


                                            3
affidavit and testimony by disclosing Dr. Seale as one of its own witnesses. This is

incorrect; it is possible that Dr. Seale’s testimony could be admissible only in part,

and American General did not waive its objection to Dr. Seale’s cause of death

testimony by disclosing Dr. Seale as an expert for other purposes.

      5. As an alternative ground to support summary judgment, the court held

that Everett did not submit sufficient proof of loss. The court stated that Everett’s

proof of loss was insufficient because it did not show a “covered loss,” and for that

reason “American General asked for a new proof of loss, which was never

submitted.” However, the record does not reveal that American General asked for

a new proof of loss. American General requested additional information (the

original death certificate, obituary, and accident, autopsy, and toxicology reports),

Everett submitted some but not all of the information, and American General then

merely asked for more information “to complete processing the claims.” Everett

gave American General authorization to obtain Whitley’s medical records; contact

information for Whitley’s cardiologist, primary care physician, and surgeon; and

notification that her claim was that Whitley’s death was caused by a car accident.

This was sufficient to give American General “a reasonable opportunity to

investigate and determine its liability,” which is a sufficient proof of loss under

Idaho law. Estate of Holland v. Metro. Prop. & Cas. Ins. Co., 279 P.3d 80, 90

(Idaho 2012). Further, the court and American General did not explain how


                                           4
Everett’s submission fell short. Thus, it was error to hold on summary judgment

that the proof of loss was insufficient.

      6. American General argues that summary judgment should be upheld on

the alternative ground that the exclusions in Whitley’s policy bar coverage,

regardless of whether Dr. Seale’s testimony is admitted. However, American

General does not explain why the rule stated in Jones v. Mountain States

Telephone and Telegraph Co., 670 P.2d 1305, 1312 (Idaho Ct. App. 1983), would

not apply to the policy exclusions. Jones held that “where an insurance policy

requires that an accident be the sole cause of death or injury, a loss is still covered,

even though a pre-existing disease may have contributed to the loss, if the accident

is the dominant cause.” Id. Thus, we decline to affirm summary judgment on this

ground.

      We REVERSE and REMAND for proceedings consistent with this

memorandum and R & R Sails, 673 F.3d 1240.




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