                                                                            FILED
                                                                             MAY 09 2011
                            NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



JERRY P. TOMLINSON, by and through               No. 10-35376
KARA YOUNG, Conservator and Co-
Guardian for Jerry P. Tomlinson, a               D.C. No. 4:09-cv-00030-RRB
disabled person, and ALAYNA R.
BETCHER,
                                                 MEMORANDUM *
              Plaintiffs - Appellants,

  v.

GEICO GENERAL INSURANCE
COMPANY,

              Defendant - Appellee.



                   Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                              Submitted May 4, 2011 **
                                 Anchorage, Alaska

Before: ALARCÓN, GRABER, and BYBEE, 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Jerry P. Tomlinson, by and through Kara Young, Conservator and Co-

Guardian for Tomlinson, a disabled person, appeals from the district court’s order

denying his motion for summary judgment and granting summary judgment to

defendant GEICO General Insurance Company (“GEICO”).1 He disputes the

district court’s interpretation of the term “temporary substitute auto” in the GEICO

automobile insurance policy covering Anneke Merritt. He also appeals from the

district court’s order denying remand to the state court, on the grounds that the

district court lacked jurisdiction under 28 U.S.C. § 1332 or, alternatively, that the

district court’s exercise of jurisdiction was improper under Brillhart v. Excess

Insurance Co. of America, 316 U.S. 491 (1942). We affirm.

                                            I

      Tomlinson contends the district court lacked subject matter jurisdiction over

this matter. He asserts that, because the $75,000 amount-in-controversy threshold

for a diversity action has not been met, the district court erred in denying his

motion to remand. “The existence of subject matter jurisdiction is a question of

law reviewed de novo.” Reeb v. Thomas, ___ F.3d ___, No. 09-35815, 2011 WL

723106, at *1 (9th Cir. Mar. 3, 2011).


      1
        Although Alayna Betcher is the real party-in-interest, Betcher was neither
an active participant in the litigation before the district court nor is she active in
this appeal.

                                            2
       In an action for declaratory relief, where “the applicability of . . . liability

coverage to a particular occurrence is at issue, the amount in controversy is the

value of the underlying potential tort action.” Budget Rent-a-Car, Inc. v.

Higashiguchi, 109 F.3d 1471, 1473 (9th Cir. 1997). The agreement between

Tomlinson and Betcher, which Tomlinson attached as Exhibit 2 to his complaint

and “incorporated [therein] by reference as if set forth in full,” states that

Tomlinson reserves the right to seek damages against Betcher with respect to

Merritt’s GEICO policy up to the liability cap, which is $100,000. As this amount

exceeds the $75,000 threshold for diversity jurisdiction, 28 U.S.C. § 1332(a), the

district court did not err in denying Tomlinson’s motion to remand for a lack of

subject matter jurisdiction.

                                            II

      Tomlinson argues that, if the district court had jurisdiction, it abused its

discretion in declining to abstain and remand to state court pursuant to Brillhart,

316 U.S. 491. “[W]e review discretionary decisions about the propriety of hearing

declaratory judgment actions for abuse of discretion.” Principal Life Ins. Co. v.

Robinson, 394 F.3d 665, 669 (9th Cir. 2005).

        The Brillhart factors do not weigh in favor of abstention. Although the

issue here is one of state law, there is no parallel state court action pending, and


                                            3
removal alone is not indicative of forum-shopping. See GEICO v. Dizol, 133 F.3d

1220, 1225 & n.5 (9th Cir. 1998) (en banc) (identifying factors relevant to whether

abstention is appropriate under Brillhart); see also Huth v. Hartford Ins. Co. of

Midwest, 298 F.3d 800, 804 (9th Cir. 2002) (forum-shopping not a concern where

one party prefers state court and the other federal). The district court did not abuse

its discretion in declining to abstain and remand.

                                          III

      On the merits, Tomlinson contends the district court erred in holding that

Betcher’s car was not a “temporary substitute auto” under the terms of Merritt’s

auto insurance policy with GEICO with respect to the July 4, 2007 collision. “The

meaning and interpretation of an insurance contract is a question of law reviewed

de novo.” Stanford Univ. Hosp. v. Fed. Ins. Co., 174 F.3d 1077, 1083 (9th Cir.

1999). We also review de novo a grant of summary judgment. Sullivan v. Dollar

Tree Stores, Inc., 623 F.3d 770, 776 (9th Cir. 2010) (citations omitted).

      Under Merritt’s GEICO policy,

             “Temporary substitute auto” means an automobile or
             trailer, not owned by you, temporarily used with the
             permission of the owner. The vehicle must be used as a
             substitute for the owned auto or trailer when withdrawn
             from normal use because of its breakdown, repair,
             servicing, loss or destruction.



                                           4
      Tomlinson asserts that a vehicle is a “temporary substitute auto” if it is put

to the same use or purpose as the disabled vehicle would have been but for its

disablement. He argues that Betcher’s vehicle was therefore a temporary substitute

for Merritt’s under the policy. If Merritt had not lost her keys, however, she would

not have used her own car for the purpose of retrieving her keys from Fairbanks

because she would not have needed to do so. In bringing Merritt the keys, Betcher

was not performing a task that Merritt would have otherwise performed; she was

merely assisting Merritt in reenabling her own car. Betcher’s vehicle thus was not

put to the same use or purpose as Merritt’s would have been had Merritt not lost

her keys.

      Under Alaska law, policy restrictions in liability contracts are construed “to

give effect to the insured’s objectively reasonable expectations.” Whittier Props.,

Inc. v. Alaska Nat’l Ins. Co., 185 P.3d 84, 91 (Alaska 2008). We agree with the

district court that Merritt and GEICO would not reasonably have expected

Betcher’s car to constitute a temporary substitute auto under these circumstances.

The district court did not err in granting GEICO’s motion for summary judgment.

See Fed. R. Civ. P. 56(a).

      AFFIRMED.




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