                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 13 2011

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




                            FOR THE NINTH CIRCUIT



DEANA COLEMAN,                                   No. 10-36123

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05721-RJB

  v.
                                                 MEMORANDUM *
AMERICAN COMMERCE
INSURANCE, a foreign corporation doing
business in Washington,

              Defendant - Appellee.



DEANA COLEMAN,                                   No. 10-36139

              Plaintiff - Appellee,              D.C. No. 3:09-cv-05721-RJB

  v.

AMERICAN COMMERCE
INSURANCE, a foreign corporation doing
business in Washington,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Robert J. Bryan, Senior District Judge, Presiding

                           Submitted December 9, 2011 **
                               Seattle, Washington

Before: GUY,*** McKEOWN, and TALLMAN, Circuit Judges.

      Deana Coleman appeals the district court’s summary judgment in favor of

American Commerce Insurance Company in this diversity action arising from a

motor vehicle accident. Coleman’s daughter was seriously injured in the accident.

Coleman alleged that she suffered emotional distress from witnessing her

daughter’s injuries, which resulted in post-traumatic stress disorder. At the time of

the accident, Coleman had an underinsured motorist policy with American

Commerce. Coleman alleged that American Commerce violated its duty of good

faith and fair dealing, the Washington State Insurance Fair Conduct Act (“IFCA”),

and the Washington State Consumer Protection Act (“CPA”). American

Commerce cross appealed. We review de novo a district court’s order granting

summary judgment. Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114, 1117

(9th Cir. 2009).



        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Ralph B. Guy, Jr., Senior United States Circuit Judge
for the Sixth Circuit Court of Appeals, sitting by designation.

                                          -2-
      The district court correctly found that Coleman had no damages to support

her claims against American Commerce under common law, the IFCA, or the

CPA. In a first-party context, the insured’s common law damages are limited to

the amount incurred as a result of the bad faith as well as general tort damages.

Coventry Assocs. v. Am. States Ins. Co., 961 P.2d 933, 939 (Wash. 1998). Here,

Coleman failed to show damages or harm incurred as a result of the alleged bad

faith. Similarly, Coleman has not shown actual damages that were the result of

American Commerce’s actions sufficient to substantiate a claim under the IFCA or

the CPA.1

      Assuming that Coleman did not waive her claim for negligent infliction of

emotional distress, the district court properly found that Coleman’s injuries were

not foreseeable as a matter of law, and thus properly granted summary judgment in

favor of American Commerce on this claim. We adopt the district court’s rationale

in its September 14, 2010 order. Because Coleman’s claims do not survive

summary judgment, she is not entitled to a jury trial.

      On cross-appeal, the district court correctly found that Coleman did not fail

to cooperate. American Commerce first requested a sworn statement from



      1
          Coleman’s motion for certification to the Washington Supreme Court is
denied.

                                          -3-
Coleman in a letter dated October 30, 2009, nearly two weeks after Coleman had

already put American Commerce on notice of her intent to sue. Finally, in its

letters dated September 22, 2008, and January 9, 2009, American Commerce

misstated insurance policy provisions. The policy does not state that there is a

requirement that Coleman must seek medical treatment before satisfying the

definition of “bodily injury.” We adopt the district court’s rationale in its decision

of July 13, 2010.

      AFFIRMED.




                                          -4-
