                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                             JUN 24 2015

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

CHERYL WARD, FKA Cheryl White;                   No. 13-35628
RONALD MILLSAPS; WAYNE
MILLSAPS; STEVEN MILLSAPS,                       D.C. No. 3:13-cv-05092- RBL

                Plaintiffs-counter-defendants
- Appellants,                                    MEMORANDUM*

 v.

STONEBRIDGE LIFE INSURANCE
COMPANY,

                Defendant-counter-claimant -
Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                              Submitted June 1, 2015**
                                Seattle, Washington

Before:        O’SCANNLAIN, TASHIMA, and McKEOWN, Circuit Judges.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      Plaintiffs appeal from the district court’s dismissal of their complaint arising

from defendant Stonebridge Life Insurance Company’s (“Stonebridge’s”) denial of

their insurance claims. Although Plaintiffs’ complaint alleged both tort and

contract claims, on appeal, Plaintiffs challenge only the district court’s conclusion

that their breach-of-contract claims were time-barred under the insurance policies’

suit limitation provisions. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      1.     The district court correctly determined that the suit limitation

provisions contained in the insurance polices were valid under Washington law.

Both policies contain specific provisions stating that any legal action for damages

on the policy be brought at least 60 days after proof of loss is furnished, but no

later than three years after the date that proof of loss is required to be given.

Plaintiffs argue that these suit limitation provisions are void because they do not

link the time within which to bring suit to the date a cause of action “accrues.” In

support of this argument, Plaintiffs rely on Wash. Rev. Code § 48.18.200, which

provides, in relevant part:

      (1) No insurance contract delivered or issued for delivery in this state
      and covering subjects located, resident, or to be performed in this
      state, shall contain any condition, stipulation, or agreement

             . . .


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            (c) limiting right of action against the insurer to a period of less
      than one year from the time when the cause of action accrues in
      connection with all insurances other than property and marine and
      transportation insurances. In contracts of property insurance, or of
      marine and transportation insurance, such limitation shall not be to a
      period of less than one year from the date of the loss.

      (2) Any such condition, stipulation, or agreement in violation of this
      section shall be void, but such voiding shall not affect the validity of
      the other provisions of the contract.

      The Washington legislature has specifically indicated, however, that

provisions like those in Stonebridge’s policies are valid. Under Wash. Rev. Code

§ 48.20.142, all disability insurance policies in Washington must contain suit

limitation provisions functionally identical to the provisions in the policies at issue

here. Under Plaintiffs’ reading of § 48.18.200, the suit limitation provision

required by § 48.20.142 would be void. When possible, it is our duty to construe

statutes to avoid conflict and inconsistency. See Drakes Bay Oyster Co. v. Jewell,

747 F.3d 1073, 1083 (9th Cir. 2014); State v. Bash, 925 P.2d 978, 981 (Wash.

1996) (en banc). Thus, we reject Plaintiffs’ argument that Wash. Rev. Code §

48.18.200 forbids suit limitation provisions that tie the time to sue to the date proof




                                           3
of loss is required and conclude that the suit limitation provisions at issue here are

valid under § 48.18.200.1

      2.     Plaintiffs’ complaint was untimely under the suit limitation

provisions. The policies require that proof of loss be given within fifteen months

of the date of loss and that any legal action be initiated within three years after that.

Thus, even under the most generous reading of the policies, Plaintiffs were

required to file suit within four years and three months after the insured’s death.

Plaintiffs, however, did not file until four years and nine months after the insured’s

death, well beyond the time allotted.

      Plaintiffs arguments to the contrary are meritless. Washington law does not

require Stonebridge to show it was prejudiced by Plaintiffs’ untimely filing.

Rather, “a finding of prejudice is not required before an insurance company may

rely on an insured’s failure to bring suit within the contract limitation period.”

Simms v. Allstate Ins. Co., 621 P.2d 155, 158 (Wash. Ct. App. 1980). Moreover,

there is nothing in the language of the policies suggesting that the parties somehow

intended to create a prejudice requirement by contact. To the contrary, the policies



      1
              Because we conclude that the suit limitation provisions do not violate
Wash. Rev. Code § 48.18.200(1)(c), we need not – and do not – address whether
either of the policies constitutes “disability insurance” for the purposes of Wash.
Rev. Code § 48.20.142.

                                           4
plainly require that any action be brought, at the absolute latest, within four years

and three months of the loss. Plaintiffs simply filed too late.

                                        • ! •

      The judgment of the district court is

      AFFIRMED.




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