                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             June 4, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 SARA E. HURST; LAW OFFICE OF
 SARA WILLIAMS HURST, LLC,

       Plaintiffs - Appellants,

 v.                                                         No. 19-8040
                                                   (D.C. No. 2:18-CV-00081-NDF)
 NATIONWIDE MUTUAL INSURANCE                                  (D. Wyo.)
 COMPANY; ALLIED INSURANCE
 COMPANY OF AMERICA,

       Defendants - Appellees.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, BACHARACH, and CARSON, Circuit Judges.
                 _________________________________

      This case involves a dispute over insurance coverage. Plaintiffs sued

Defendants Nationwide Mutual Insurance Company and Allied Insurance Company

of America (collectively, Nationwide) under various theories after Nationwide

declined uninsured motorist (UM) coverage to Plaintiff Sara Hurst (Ms. Hurst) for

injuries she sustained in a tragic collision. The district court granted summary

judgment to Nationwide. Plaintiffs appeal.




      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Our jurisdiction arises under 28 U.S.C. § 1291. We address whether an

insurance policy (the Policy) issued to Plaintiff Law Office of Sara Williams Hurst,

LLC (Hurst LLC) provides UM benefits to Ms. Hurst individually. Because the

Policy did not list Ms. Hurst as a named insured and because she was not otherwise

occupying a vehicle covered by the Policy at the time of the collision, we affirm.

                                           I.

      On May 31, 2014, as Ms. Hurst and her husband rode bicycles on the shoulder

of a roadway in Sheridan, Wyoming, an uninsured motorist veered off the road and

hit them. The impact seriously injured Ms. Hurst and killed her husband.

      About a month before the accident, Nationwide issued a commercial auto

policy covering a 2007 Lexus owned by Hurst LLC. Following the accident, Ms.

Hurst submitted a claim to Nationwide under the commercial auto policy. She

asserted it provided her, as an individual, with UM coverage.1 Nationwide denied her

claim. In Nationwide’s view, the policy provided no coverage because Ms. Hurst

was not in the 2007 Lexus when the uninsured motorist struck her.2 Further, the

commercial policy did not list Ms. Hurst as an individually named insured.




      1
         Ms. Hurst also claimed UM coverage against her personal auto insurer,
MetLife, whose policy did in fact list Ms. Hurst, as well as her husband, as
individually named insureds. Evidently, because her personal policy’s UM coverage
was insufficient, she tried to “stack” her law firm’s commercial policy on top of her
personal UM coverage by filing a claim with Nationwide.
       2
         Ms. Hurst suffered a concussion, collapsed lung, pulmonary contusion,
internal bleeding, a thoracic fracture, and fractures to her leg and ribs. Her injuries
required several surgeries and physical therapy.
                                           2
       After Nationwide denied her claim, Ms. Hurst asked her broker, David Alden,

to add her to the Policy as an individually named insured going forward. Nationwide

refused Mr. Alden’s request, however, citing its normal practice of not naming

individuals as insureds on commercial policies. But, twenty-six days before the

Policy expired, Nationwide ultimately gave in and added Ms. Hurst to the Policy.

Mr. Alden told Ms. Hurst that Nationwide “is going to add you to the policy and pick

up future uninsured and UM pedestrian claims.”

       After the revision, Ms. Hurst sued Nationwide for denying her claim. She

argued that by adding her to the Policy during the same coverage period in which the

May 2014 accident occurred, Nationwide created backdated coverage. Ms. Hurst

claimed the Policy’s “liberalization clause” expanded coverage to the May 2014

accident. Alternatively, she sought reformation of the Policy because she and Mr.

Alden had intended for the Policy to provide her with UM coverage regardless of

whether she was occupying the covered 2007 Lexus.

       Both parties moved for summary judgment. The district court granted

summary judgment to Nationwide, holding that the Policy’s liberalization clause did

not retroactively create coverage for the May 2014 accident. The court also declined

to reform the Policy because Ms. Hurst had failed to present evidence supporting

such relief.

       Plaintiffs now appeal. We review the district court’s judgment de novo.

Carpenter v. Boeing Co., 456 F.3d 1183, 1192 (10th Cir. 2006).



                                          3
                                                II.

         This appeal requires interpretation of a Wyoming insurance policy. Because

Ms. Hurst sued in federal court based on diversity jurisdiction, we “must ascertain

and apply state law to reach the result the Wyoming Supreme Court would reach if

faced with the same question.” Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir.

2000).

         Under Wyoming law, the rules of contract interpretation apply to insurance

policies. Hurst v. Metro. Prop. & Cas. Ins. Co., 401 P.3d 891, 895 (Wyo. 2017).

And as with ordinary contracts, we interpret unambiguous insurance policies as a

matter of law. Id. In interpreting an unambiguous policy, we focus on “the parties’

intent from the contract language alone . . . although it may consider the context in

which the contract was written, including the subject matter, the purpose of the

contract, and the circumstances surrounding its making.” Id. (quoting Fox v.

Wheeler Elec., Inc., 169 P.3d 875, 878 (Wyo. 2007)). The words used in insurance

policies “are given the plain meaning that a reasonable person, in the position of the

insured, understands them to mean.” Id. (quoting Doctors’ Co. v. Ins. Corp. of Am.,

864 P.2d 1018, 1023 (Wyo. 1993)).

         But because “insurance policies represent contracts of adhesion where the

insured has little or no bargaining power to vary the terms, if the language is

ambiguous, the policy is strictly construed against the insurer.” N. Fork Land &

Cattle, LLLP v. First Am. Title Ins. Co., 362 P.3d 341, 346 (Wyo. 2015) (quoting

Doctors’ Co., 864 P.2d at 1024). A court will find an ambiguity in the language of

                                            4
an insurance policy only if the language is capable of more than one reasonable

interpretation. Id.

                                          III.

      We begin by interpreting the Policy language. Nationwide issued the Policy to

Hurst LLC to provide coverage for a 2007 Lexus the LLC owned. The Policy’s

Business Auto Declarations page lists Hurst LLC, but not Ms. Hurst, as the named

insured and has effective coverage dates of April 7, 2014 through April 7, 2015.

Under the Policy, if the named insured is an LLC, the UM provision provides

coverage for “[a]nyone occupying a covered auto or a temporary substitute for a

covered auto.” App., Vol. I at 96–97 (internal quotation marks omitted). Similarly,

the Policy’s medical payments provision provides “reasonable expenses” and

“necessary medical and funeral services” to either the named insured or “[a]nyone

else occupying a covered auto or a temporary substitute for a covered auto.” Id. at 92

(internal quotation marks omitted). Ms. Hurst concedes she was neither a named

insured, nor occupying the 2007 Lexus or a substitute auto at the time of the May

2014 accident.

      Ms. Hurst, therefore, cannot claim coverage under the Policy as it existed on

the date of the accident. Indeed, the Policy’s language as of that date unambiguously

did not provide her with personal coverage. She instead claims coverage under either

the liberalization clause of the Policy or through reformation of the Policy.




                                           5
                                          A.

      As to the liberalization clause, Plaintiffs contend that because Nationwide

added Ms. Hurst to the Policy as an individually named insured—less than a month

before the policy’s expiration and more than 9 months after the accident—it

retroactively triggered coverage for the May 2014 accident. The liberalization clause

states that revisions to the policy apply immediately:

      If we adopt any revision that would broaden coverage under this policy
      without additional premium within 60 days prior to or during the policy
      period, the broadened coverage will immediately apply to this policy.

App., Vol. I at 91 (emphasis added). The parties agree that this policy language

applied to Ms. Hurst, but disagree as to whether it provided retroactive or prospective

coverage to her, as a newly named insured. We conclude that the language provided

only prospective coverage.

      Wyoming courts give the words used in insurance policies their plain meaning,

as “a reasonable insured would understand” them. N. Fork Land & Cattle, LLLP,

362 P.3d at 346. The plain meaning of the word “immediately” includes “without

any delay or lapse of time; instantly, directly, straightaway; at once” (Oxford English

Dictionary), and “without interval of time” (Merriam-Webster). See also Moe v.

State, 123 P.3d 148, 152 (Wyo. 2005) (“A dictionary definition of the word

‘immediately’ is ‘without interval of time; straightway.’”). By using the word

“immediately,” the liberalization clause unambiguously intended for the Policy

revision to take effect “instantly” or “at once.” Neither the word “immediately,” nor

the liberalization clause as a whole, suggest any retroactive or backdated effect. If

                                           6
broadened coverage applied retroactively to accidents occurring before the policy

revision took effect, then the clause would say so. But it does not. Instead, the

clause’s only reasonable interpretation is that the broadened coverage applied

instantly for the rest of the Policy period.

       We therefore reject Ms. Hurst’s argument that the liberalization clause

retroactively created coverage for the May 2014 accident. Moreover, because Ms.

Hurst was neither a named insured, nor occupying the 2007 Lexus when the

uninsured motorist hit her, the Policy provides no UM or medical payment benefits

for the May 2014 accident. We thus affirm the district court’s grant of summary

judgment on this ground.

                                               B.

       Plaintiffs next claim the district court erred by not reforming the Policy

because Ms. Hurst and Mr. Alden had intended for the Policy’s UM coverage to

apply regardless of whether Ms. Hurst occupied the 2007 Lexus.3 Wyoming law

permits courts to reform contracts under the equitable “maxim that equity treats that

as done which ought to have been done.” Hutchins v. Payless Auto Sales, Inc., 38

P.3d 1057, 1063 (Wyo. 2002) (internal quotation marks and citation omitted).



       3
        The parties dispute whether Mr. Alden acted as Nationwide’s agent—
specifically whether Plaintiff may impute Mr. Alden’s knowledge to Nationwide.
Nationwide appears to acknowledge that Mr. Alden “was Nationwide’s agent for
purposes of selling insurance policies.” The district court, however, did not address
any agency issue in its summary judgment order. But even assuming we can impute
Mr. Alden’s knowledge to Nationwide, Plaintiffs failed to raise a fact issue on their
reformation claim.
                                               7
Reformation is proper where clear and convincing evidence establishes: “(1) a

meeting of the minds—a mutual understanding between the parties—prior to the time

a writing is entered into, (2) a written contract, or agreement, or deed (3) which does

not conform to the understanding, by reason of mutual mistake.” Id.

      The availability of the remedy depends “upon two particulars: (1) that the

mistake occurred in the drafting of the instrument, rather than in reaching the

antecedent agreement; and (2) that the mistake was reciprocal and common to both

parties with each being under the same misconception as to the terms of the written

instrument.” W.N. McMurry Const. Co. v. Cmty. First Ins., Inc. Wyoming, 160 P.3d

71, 78 (Wyo. 2007) (internal quotation marks and citations omitted). Moreover, the

“required mutuality of mistake can only be found if the parties had identical

intentions as to the material terms of the policy.” Ohio Cas. Ins. Co. v. W.N.

McMurry Const. Co., 230 P.3d 312, 321 (Wyo. 2010).

      Plaintiffs cite Mr. Alden’s testimony to show that both she and Mr. Alden

intended for the Policy to provide her UM coverage even if she did not occupy the

2007 Lexus. Mr. Alden testified:

      Q      When you procured this policy, did you intend for Sara Hurst to
             be covered for uninsured motorist benefits under this policy
             regardless of whether she was occupying a covered auto?

      A.     I procured uninsured motorist for Sara Hurst individually to be
             covered when she was hit by an uninsured motorist. I did not
             ever – the pedestrian part never came into play. I procure
             uninsured motorist for people who are injured in an automobile
             accident by somebody who doesn’t have liability insurance.

      Q      Is the answer to my question yes?

                                           8
      A      Yes.

App., Vol. II at 84. And by declaration, Ms. Hurst stated she “intended and

understood that [she] purchased complete individual uninsured motorist coverage.”

Id. at 88. Mr. Alden also testified, however, that Ms. Hurst “bought a Lexis in the

name of her law firm, or the LLC” so he put the Policy “with her LLC business

owner’s policy.” Id. at 78. Indeed, Mr. Alden never contemplated coverage under

the Policy for the type of accident that occurred here—a Saturday-morning bicycle

accident—as he testified that the “pedestrian part never came into play.” Id. at 84.

      Moreover, for the Policy to cover Ms. Hurst “regardless of whether she was

occupying a covered auto”—i.e., for the type of accident that occurred here—she

would have to have been a named insured on the Policy. But Ms. Hurst presents no

evidence (much less clear and convincing evidence) showing that she and Mr. Alden

shared an understanding that Ms. Hurst be an individually named insured, nor that the

Policy inadvertently failed to include coverage for the type of accident in this case.

Hutchins, 38 P.3d at 1063 (stating that reformation requires clear and convincing

evidence of a “mutual understanding” between the parties). Thus, we conclude that

Mr. Alden’s testimony does not show a meeting of the minds about whether the

Policy would cover Ms. Hurst for the injuries she sustained in the bicycling accident.

      Ms. Hurst’s own declaration fares no better. Ms. Hurst merely stated she

wanted “complete individual uninsured motorist coverage.” App., Vol. II at 88. She

offered no evidence that she understood or expected to be individually named on the


                                           9
Policy or that she and Mr. Alden discussed specifics regarding the scope of UM

coverage. Instead, the record reveals that Ms. Hurst contacted Mr. Alden to provide

“full coverage” for a vehicle bought by her law firm and that Mr. Alden procured the

policy with “Hurst LLC” as the named insured. Small v. King, 915 P.2d 1192, 1194

(Wyo. 1996) (concluding that a full coverage request “is not a specific inquiry about

a specific type of coverage”). Plaintiffs fail to demonstrate why we should reform

the Policy to provide coverage for personal activities (bicycling) unrelated to her law

firm or the 2007 Lexus the Policy covered.

      Because Plaintiffs present no evidence showing a “mutual understanding

between the parties,” no fact issue exists supporting reformation, and we affirm the

district court’s grant of summary judgment to Nationwide. Ohio Cas. Ins. Co., 230

P.3d at 320, 321.

                                                IV.

      Finally, Plaintiffs argue that the district court erred by granting summary

judgment to Nationwide on Plaintiffs’ statutory attorneys’ fees claim. Wyoming law

authorizes an award of attorneys’ fees when an insurer “refuses to pay the full

amount of a loss covered by the policy and that the refusal is unreasonable or without

cause.” Wyo. Stat. § 26-15-124(c). We, as well as the Wyoming Supreme Court,

recognize the district court’s discretion to award fees and interest under the statute.

Stewart Title Guar. Co. v. Tilden, 181 P.3d 94, 102 (Wyo. 2008) (“Use of the word

‘may’ suggests that the award of both attorney’s fees and the award of interest are

discretionary.”); Bruegger v. National Old Lines Ins. Co., 529 F.2d 869, 870 (10th

                                           10
Cir. 1976) (“[W]e . . . agree with the court’s generalization that awards of attorney

fees and prejudgment interest under Wyoming case and statutory law are matters

directed to the court’s discretion.”).

       The district court determined that “Plaintiffs’ claims for relief required either

reformation of the contract, or for the Court to find that the Liberalization clause

provided retroactive coverage.” And because Plaintiffs failed to show that coverage

existed for the May 2014 accident, the district court found Nationwide reasonably

denied Ms. Hurst’s insurance claim. See supra Part III(B). We agree that

Nationwide reasonably denied Plaintiffs’ claim. Thus, we affirm the district court’s

grant of summary judgment to Nationwide on Plaintiffs’ contingent claim for

statutory attorneys’ fees.

       AFFIRMED.


                                             Entered for the Court


                                             Joel M. Carson III
                                             Circuit Judge




                                           11
