                               NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              MAR 30 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
SUSAN M. PARKER,                       )     No. 11-35228
                                       )
      Plaintiff – Appellant,           )     D.C. No. 3:10-cv-05784-BHS
                                       )
      v.                               )     MEMORANDUM*
                                       )
ALLSTATE INSURANCE                     )
COMPANY,                               )
                                       )
      Defendant – Appellee.            )
                                       )
                                       )


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                       Argued and submitted March 7, 2012
                              Seattle, Washington

Before:      FERNANDEZ and PAEZ, Circuit Judges, and GWIN,** District
             Judge.




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
       The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
      Susan Parker appeals the district court’s grant of summary judgment to her

insurer, Allstate, in her action for breach of contract and bad faith. An uninsured

motorist injured Parker in an accident, and Parker sued Allstate for uninsured

motorist benefits after a series of contentious exchanges with Allstate during the

claims investigation process.

      The district court dismissed her claims with prejudice because Parker had

not submitted to an examination under oath (“EUO”) before she sued Allstate. The

district court dismissed the case although Allstate’s policy with Parker, unlike most

other policies, contained no contractual provision requiring Parker to submit to an

EUO. We reverse.

      The district court erred when it ruled that Parker needed to complete an EUO

before she could sue. Washington law provides that an insurance policy can

require an insured to be examined under oath, but Washington law does not say

that a policyholder cannot sue before the EUO has been completed. Wash. Rev.

Code § 48.18.460. Washington insurers commonly issue policies that expressly

require examination under oath. See, e.g., Staples v. Allstate Insurance Co., No.

64816-1, 2011 WL 1896217, at *3 (Wash. Ct. App. May 16, 2011). Where

expressly provided, Washington courts enforce cooperation clauses that forbid

lawsuits before the policyholder has complied with the EUO provision. E.g.,

                                          2
Downie v. State Farm Fire & Cas. Co., 929 P.2d 484, 487 (Wash. Ct. App. 1997).

But unlike other Allstate insurance products, Parker’s policy contains no provision

requiring her to submit to an EUO, much less requiring that an EUO occur before

she may sue. We find no requirement under Washington law that an insured

complete an EUO before suing her insurer when the insuring contract includes no

EUO requirement.

      In light of the above determination, we need not consider whether the

parties’ cooperation with the taking of an EUO remains a genuine issue of material

fact for trial. Nor need we decide whether Allstate would need to show prejudice,

if an EUO had been required and Parker had proceeded without submitting to one.

Those issues could have been avoided had the parties approached each other with

less fractious frames of mind.

      That the dispute over Parker’s claim reaches this Court reflects the parties’

(and their attorneys’) pointless obstinacy. The parties should have easily resolved

disputes over authorizations, over the authority to conduct an EUO, and over the

scheduling of the EUO through common courtesies, rather than taxing the

resources of the federal judiciary.

REVERSED and REMANDED.




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