                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 09 2014

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



                            FOR THE NINTH CIRCUIT


ROBERT MEARS,                                    No. 12-35917

              Plaintiff - Appellant,             D.C. No. 6:11-cv-00040-DWM

  v.
                                                 MEMORANDUM*
SAFECO INSURANCE COMPANY OF
ILLINOIS,

              Defendant - Appellee.


                   Appeal from the United States District Court
                           for the District of Montana
                   Donald W. Molloy, District Judge, Presiding

                             Submitted April 9, 2014**
                               Seattle, Washington

Before: HAWKINS, RAWLINSON, and BEA, Circuit Judges.

       This court reviews de novo the district court’s grant of summary judgment,

Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994), and affirms.



        *
             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).
      1. There are no genuine issues of material fact to preclude summary

judgment as to whether Mears consented, whether a mutual mistake of fact existed,

or whether the release was vague and ambiguous. Whether the parties mutually

consented to the contract is determined by “inquiring whether a reasonable person,

based upon the objective manifestation of assent, and all the surrounding

circumstances, would conclude that the parties intended to be bound by the

contract.” Chipman v. Nw. Healthcare Corp., Applied Health Servs., Inc., 317

P.3d 182, 185 (Mont. 2014). Mears’s objective manifestations are not in dispute

and Mears’s other subjective complaints do not create a dispute of fact relevant to

Mears’s objective manifestations. Further, we will not address any argument that

there was a mutual mistake of fact because Mears waived his right to appeal that

issue. Finally, Mears presents no evidence that creates an ambiguity in the plain

language of the telephone release.

      2. The district court did not err in denying Mears summary judgment, and

granting summary judgment to Safeco, on the grounds that Mears’s consent was

not obtained through economic duress or undue influence. Despite Mears’s

argument to the contrary, Ridley v. Guaranty Nat’l Ins., 951 P.2d 987 (Mont.

1997), does not obligate Safeco to offer to pay for Mears’s future treatment before

settling Mears’s claim, and Mears has not alleged that Safeco rushed or threatened


                                         2
his decision to settle in any way. Thus, Safeco did not obtain Mears’s consent by

taking advantage of Mears as required for undue influence, Mont. Code Ann. § 28-

2-407, or by committing a wrongful act as required for economic duress. Hughes

v. Pullman, 36 P.3d 339, 343 (Mont. 2001). As a matter of law, Mears objectively

manifested his valid consent to the release free of undue influence or economic

duress.

      The district court is AFFIRMED.




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