2021 U.S. App. LEXIS 35457; 2021 WL 5632475

Sherrell STEINHAUER; Joanne STEINHAUER 

v.

LIBERTY MUTUAL INSURANCE COMPANY

Notice: Please refer to Federal Rules of Appellate Procedure Rule 32.1 governing the citation to unpublished opinions.

Judges: Before: GRABER and CHRISTEN, Circuit Judges, and R. COLLINS, District Judge.

MEMORANDUM

Plaintiffs Sherrell and Joanne Steinhauer appeal district court orders that granted Defendant Liberty Mutual Insurance Company's motion for summary judgment and denied the Steinhauers' motions for partial summary judgment and their motion to amend complaint. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts, we recite only those necessary to decide the appeal.

The Steinhauers have the burden of establishing the contract's existence, Holdner v. Holdner, 176 Ore. App. 111, 29 P.3d 1199, 1203 (Or. Ct. App. 2001), and "[t]he interpretation of an insurance policy is a question of law," Richardson v. Guardian Life Ins. Co. of Am., 161 Ore. App. 615, 984 P.2d 917, 921 (Or. Ct. App. 1999). "In order to warrant enforcement, proof of the contract must be clear, unequivocal and by a preponderance of the evidence." Holdner, 29 P.3d at 1203 (citation and internal quotation marks omitted). The first step in contract interpretation is to "look[ ] at the four corners of a written contract[ ] and consider[ ] the contract as a whole with emphasis on the provision or provisions in question." Eagle Indus., Inc. v. Thompson, 321 Ore. 398, 900 P.2d 475, 478-79 (Or. 1995) (en banc). "If the provision is clear, the analysis ends." Yogman v. Parrott, 325 Ore. 358, 937 P.2d 1019, 1021 (Or. 1997) (en banc).

The Steinhauers' insurance policy identified Liberty Insurance Corporation as the issuer of the policy. The policy explicitly stated, "[w]e will provide the insurance described in this policy in return for the premium and compliance with all applicable provisions of this policy[,]" and the policy defined the term " [w]e" as referring to the company providing the insurance. The Steinhauers failed to demonstrate that Liberty Mutual was the issuer of their policy. Thus, the district court correctly ruled that the Steinhauers sued the wrong party.

Additionally, the district court did not abuse its discretion in denying permission for a very untimely proposed amendment because the Steinhauers filed their motion to amend over a year after the court's deadline to join parties, and they failed to demonstrate the good cause required to justify their amendment. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992) ("Once the district court ha[s] filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16[,] which establishe[s] a timetable for amending pleadings[,] that rule's standards control[.]"); Fed. R. Civ. P. 16(b)(4) ("A schedule may be modified only for good cause and with the judge's consent."). The Steinhauers knew early in the case that they had sued the wrong party, both from opposing counsel and from the court, yet they failed to substitute or add the correct defendant in a timely manner.

The district court also applied the correct law to the Steinhauers' claims of waiver and estoppel, and it did not err in ruling that these doctrines did not suffice to make Liberty Mutual the correct defendant. See Moore v. Mut. of Enumclaw Ins. Co., 317 Ore. 235, 855 P.2d 626, 631 (Or. 1993) (en banc) ("[I]n cases involving fire insurance policies, the requirement of a written waiver imposed by ORS 742.222 supersedes the common law rule recognizing oral waiver and waiver by conduct."); Kimball v. Horticultural Fire Relief of Oregon, 79 Ore. 133, 154 P. 578, 581 (Or. 1916) ("An estoppel always implies a party has been misled to his prejudice, or into an altered position which he would not have taken except for representations relied upon[.]"). Accordingly, we need not reach any of the other issues.

AFFIRMED.