                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 22 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL R. DULLEN, PR Est. of                    No. 16-35699
Karl I. Thumma (Deceased 02/17/2014);
KAREN R. DULLEN,                                 D.C. No. 4:16-cv-00003-SLG

              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

AMERICAN AUTOMOBILE
ASSOCIATION, AKA
AAA Life Insurance Company,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Alaska
                    Sharon L. Gleason, District Judge, Presiding

                           Submitted August 17, 2017**
                               Anchorage, Alaska

Before: GRABER, CLIFTON, and M. SMITH, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiffs-Appellants Karen R. Dullen and Michael R. Dullen appeal the

summary judgment entered in favor of AAA. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      The struck-by-vehicle requirement of the decedent’s travel accident

insurance policies was not satisfied by the decedent’s inhalation of carbon

monoxide emitted from his vehicle. First, the “ordinary and popular” interpretation

of “struck,” a term not defined in the operative policies, is not so broad as to apply

to the inhalation of air. Jarvis v. Aetna Cas. & Sur. Co., 633 P.2d 1359, 1363

(Alaska 1981). Particularly in the context of automobile accidents, Plaintiffs’

proposed interpretation of “struck” as including any physical contact on a

molecular level surpasses common comprehension and would require the court to

impose “fine distinctions which few can understand until pointed out by lawyers

and judges.” INA Life Ins. Co. v. Brundin, 533 P.2d 236, 241 (Alaska 1975)

(quoting Burr v. Commercial Travelers Mut. Acc. Ass’n of Am., 67 N.E.2d 248,

252 (N.Y. 1946)).

      Second, the struck-by-vehicle requirements of the decedent’s policies are not

ambiguous. Plaintiffs’ interpretation is both unreasonable and unsupported by “the

contract as a whole and all extrinsic evidence.” Nelson v. Progressive Casualty Ins.

Co., 162 P.3d 1228, 1234 (Alaska 2007) (internal quotation marks omitted).


                                           2
Further, Plaintiffs’ proposed interpretation of “struck” extends coverage beyond

the risks reasonably contemplated by the insured and impermissibly restricts an

insurer’s ability to limit liability through plain language. See id. at 1235 n.44

(stressing that a court “should not do violence to the plain terms . . . by artificially

creating ambiguity where none exists” (internal quotation marks omitted)).

      Lastly, Plaintiffs present insufficient evidence demonstrating that the

decedent could have held an objectively reasonable expectation of coverage in the

circumstances. Devine v. Great Divide Ins. Co., 350 P.3d 782, 786 (Alaska 2015).

Plaintiffs’ supporting “case law interpreting similar provisions,” while factually

related, centers on different policy provisions than those at issue here, provides no

explicit holding as to a struck-by-vehicle requirement and, further, was expressly

disapproved of by a higher court. Id; see Kelley v. Integon Indem. Corp., 320

S.E.2d 526, 529 (Ga. 1984) (disapproving of Jones v. Transamerica Ins. Co., 268

S.E.2d 444 (Ga. Ct. App. 1980)).

      Because we conclude that the decedent was not “struck” by his vehicle for

the purposes of the travel accident insurance policies in question, we need not

address the second, independent requirement that the decedent qualify as a

pedestrian at the time of his death.

      AFFIRMED.


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