                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 09 2015

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



                           FOR THE NINTH CIRCUIT


YAIR JACKOBY,                                    No. 12-16917

              Plaintiff-Appellant,               D.C. No. 3:11-cv-0307-LRH-
                                                 WGC
  v.

GEICO GENERAL INSURANCE                          MEMORANDUM*
COMPANY,

             Defendant-Appellee.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                   Argued and Submitted November 21, 2014*
                           San Francisco, California

Before: GOULD and WATFORD, Circuit Judges, and OLIVER, Chief District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
      Yair Jackoby (“Jackoby”) appeals the order of the district court denying him

summary judgment and granting summary judgment in favor of GEICO General

Insurance Company (“GEICO”) in Jackoby’s action for underinsured/uninsured

motorist (“UIM”) benefits. Jackoby maintains that the anti-stacking provision in his

GEICO automobile insurance policy is ambiguous and did not preclude the stacking

of multiple insurance coverage limits when he was injured in an accident while riding

a bicycle.1 We review the district court’s grant of GEICO’s motion and the denial of

Jackoby’s motion de novo. CRM Collateral II, Inc. v. TriCounty Metro. Transp. Dist.,

669 F.3d 963, 968 (9th Cir. 2012). We reverse.

                                          I

      Under Nevada law, a valid anti-stacking provision must be clear and

prominently displayed, and the policyholder must not have purchased separate

coverage on the same risk. Nev. Rev. Stat. § 687B.145(1); Nationwide Mut. Ins. Co.

v. Coatney, 42 P.3d 265, 267 (Nev. 2002). Anti-stacking language is unambiguous

if it is “truly comprehensible to the average insured.” Bove v. Prudential Ins. Co. of

Am., 799 P.2d 1108, 1110 (Nev. 1990). Furthermore, “‘any ambiguity or uncertainty

in an insurance policy must be construed against the insurer and in favor of the



      1
            The parties are familiar with the facts of this case, so we will not
recount them here, except as necessary to explain our decision.

                                          2
insured.’” Century Sur. Co. v. Casino W., Inc., 677 F.3d 903, 908 (9th Cir. 2012)

(quoting Benchmark Ins. Co. v. Sparks, 254 P.3d 617, 621 (Nev. 2011)).

      The district court erred when it determined that the anti-stacking provision was

clear and unambiguous. The anti-stacking provision at issue states:

             IF YOU OR ANY OTHER INSURED IS IN AN
             ACCIDENT:

             (A) IN AN INSURED AUTO WE WILL NOT PAY
             MORE THAN THE LIMIT OF COVERAGE FOR THAT
             PARTICULAR INSURED AUTO.

             (B) IN A MOTOR VEHICLE OTHER THAN YOUR
             INSURED AUTO OR WHILE AS A PEDESTRIAN, WE
             WILL NOT PAY MORE THAN THE LIMIT OF
             COVERAGE WHICH YOU HAVE ON ANY ONE OF
             YOUR INSURED AUTOS.

             THIS LIMIT OF COVERAGE APPLIES REGARDLESS
             OF THE NUMBER OF POLICIES, INSUREDS, YOUR
             INSURED AUTOS, CLAIMS MADE OR MOTOR
             VEHICLE INVOLVED IN THE ACCIDENT.
             COVERAGES ON OTHER MOTOR VEHICLES
             INSURED BY US CANNOT BE ADDED OR STACKED
             ON THE COVERAGE OF YOUR INSURED AUTO
             THAT COVERS THE LOSS.

While it is clear that the final sentence limits stacking in instances where the

policyholder is involved in an accident while in a motor vehicle or as a pedestrian, it

is not clear whether that prohibition on stacking applies in the many different factual

circumstances not specified. The first sentence of the final paragraph explicitly refers


                                           3
back to Sections A and B. Because the final sentence of the paragraph is not set off

from the preceding sentence, a reasonable insured would read the final sentence as

also referring to Sections A and B. A reasonable insured would not presume that the

final sentence limited stacking in factual circumstances not specified in Sections A

and B, such as in this case, where an individual is involved in an accident while riding

a bicycle. Construing the ambiguity in the provision against the insurer, this court

concludes that the provision does not clearly cover such circumstances and, therefore,

does not comply with Nev. Rev. Stat. § 687B.145(1). Thus, the anti-stacking

provision is void and unenforceable. Coatney, 42 P.3d at 267.

                                          II

      This court acknowledges that it is bound by decisions of the Nevada Supreme

Court and must “approximate state law as closely as possible.” Gee v. Tenneco, Inc.,

615 F.2d 857, 861 (9th Cir. 1980). However, this court does not find, as argued by

GEICO, that Bove and Coatney are binding or persuasive authority regarding whether

the anti-stacking provision is ambiguous under the circumstances of this case. While

it is true that Bove and Coatney found anti-stacking provisions employing language

similar to that in this case to be unambiguous and in compliance with Nev. Rev. Stat.

§ 687B.145(1), those cases are distinguishable because in each case the insured was

injured while riding in an automobile, a circumstance explicitly covered by the anti-


                                           4
stacking provision. See Bove, 799 P.2d at 1109–10; Coatney, 42 P.3d at 266–68.

Neither side cited to any authority where a plaintiff sued for UIM benefits after having

been injured while on a bicycle or in a factual scenario not explicitly covered under

the terms of the anti-stacking provision.

                                            III

      We reverse the district court’s order granting GEICO’s motion for summary

judgment and denying Jackoby’s cross-motion for summary judgment. We remand

this case to the district court for a determination of Jackoby’s actual damages.

      REVERSED and REMANDED.




                                            5
                                                                               FILED
Jackoby v. GEICO General Insurance Co., 12-16917                                JAN 09 2015

                                                                            MOLLY C. DWYER, CLERK
GOULD, Circuit Judge, dissenting:                                            U.S. COURT OF APPEALS



      I respectfully dissent from the majority’s decision to reverse the district

court’s grant of summary judgment in favor of GEICO and denial of summary

judgment for Jackoby. Nevada interprets ambiguities in an insurance contract

against the drafter, here the insurer. Century Sur. Co. v. Casino W., Inc., 329 P.3d

614, 616 (Nev. 2014). But I would affirm and conclude that Geico properly denied

stacking Jackoby’s UIM coverages. All factors relevant under Nevada law when

construing an ambiguous insurance policy, including an aim to effectuate the

“insured’s reasonable expectations,” in my view support denying Jackoby

unwarranted coverage in this case. Century Sur. Co., 329 P.3d at 616 (emphasis

added); see Nat’l Union Fire Ins. Co. v. Ceasars Palace Hotel & Casino, 792 P.2d

1129, 1130 (Nev. 1990). I do not believe Jackoby had a “reasonable expectation”

to triple his UIM benefits simply because he was on a bicycle instead of in a car or

on foot when injured. Even if “bicycle” had been expressly listed in his policy, we

would have the same problem if Jackoby had instead been on a skateboard or in a

rickshaw.

      Further, I do not believe that the majority’s factual distinction of this case

from the Nevada Supreme Court’s decisions in Nationwide Mut. Ins. Co. v.

                                          1
Coatney, 42 P.3d 265 (Nev. 2002) and Bove v. Prudential Ins. Co. of Am., 799 P.2d

1108 (Nev. 1990) approximates state law “as closely as possible.” U.S. Fid. &

Guar. Co. v. Lee Investments, LLC, 641 F.3d 1126, 1133 (9th Cir. 2011). I do not

conclude that the Nevada Supreme Court, which held in Coatney and Bove that

substantially similar anti-stacking language was unambiguous, would distinguish

this case on the grounds stated by the majority, which distinguishes this case from

Coatney and Bove without discussing why its factual distinction supports a

different result. Instead, I would consider the results in Coatney and Bove to point

strongly in the opposite direction in this case. The anti-stacking language in

Jackoby’s UIM policy was clear under those decisions, and we should hold that the

Nevada Supreme Court likely would continue along the same well-beaten path if it

encountered a case like Jackoby’s. I am concerned that the majority’s decision to

distinguish Nevada precedent in this case puts the decision in conflict with policies

of federalism and those underlying Erie v. Tompkins, 304 U.S. 64 (1938). The

result is not only an injustice to the insurer in this case, but a risk that insurers

writing policies to consumers in the states within our circuit will have to charge

higher premiums to cover the un-discerned risks flowing from our decision today

in this case.




                                            2
