CHERYL WARD, FKA Cheryl White; RONALD MILLSAPS; WAYNE MILLSAPS; STEVEN MILLSAPS v. Stonebridge Life Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL WARD, FKA Cheryl White;
RONALD MILLSAPS; WAYNE
MILLSAPS; STEVEN MILLSAPS,
Plaintiffs-counter-defendants
- Appellants,
v.
STONEBRIDGE LIFE INSURANCE
COMPANY,
Defendant-counter-claimant -
Appellee.
No. 13-35628
D.C. No. 3:13-cv-05092- RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted June 1, 2015 **
Seattle, Washington
Before: O’SCANNLAIN, TASHIMA, and McKEOWN, Circuit Judges.
FILED
JUN 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).

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Plaintiffs appeal from the district court’s dismissal of their complaint arising
from defendant Stonebridge Life Insurance Company’s (“Stonebridge’s”) denial of
their insurance claims. Although Plaintiffs’ complaint alleged both tort and
contract claims, on appeal, Plaintiffs challenge only the district court’s conclusion
that their breach-of-contract claims were time-barred under the insurance policies’
suit limitation provisions. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court correctly determined that the suit limitation
provisions contained in the insurance polices were valid under Washington law.
Both policies contain specific provisions stating that any legal action for damages
on the policy be brought at least 60 days after proof of loss is furnished, but no
later than three years after the date that proof of loss is required to be given.
Plaintiffs argue that these suit limitation provisions are void because they do not
link the time within which to bring suit to the date a cause of action “accrues.” In
support of this argument, Plaintiffs rely on Wash. Rev. Code § 48.18.200, which
provides, in relevant part:
(1) No insurance contract delivered or issued for delivery in this state
and covering subjects located, resident, or to be performed in this
state, shall contain any condition, stipulation, or agreement
. . .
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(c) limiting right of action against the insurer to a period of less
than one year from the time when the cause of action accrues in
connection with all insurances other than property and marine and
transportation insurances. In contracts of property insurance, or of
marine and transportation insurance, such limitation shall not be to a
period of less than one year from the date of the loss.
(2) Any such condition, stipulation, or agreement in violation of this
section shall be void, but such voiding shall not affect the validity of
the other provisions of the contract.
The Washington legislature has specifically indicated, however, that
provisions like those in Stonebridge’s policies are valid. Under Wash. Rev. Code
§ 48.20.142, all disability insurance policies in Washington must contain suit
limitation provisions functionally identical to the provisions in the policies at issue
here. Under Plaintiffs’ reading of § 48.18.200, the suit limitation provision
required by § 48.20.142 would be void. When possible, it is our duty to construe
statutes to avoid conflict and inconsistency. See Drakes Bay Oyster Co. v. Jewell,
747 F.3d 1073, 1083 (9th Cir. 2014); State v. Bash, 925 P.2d 978, 981 (Wash.
1996) (en banc). Thus, we reject Plaintiffs’ argument that Wash. Rev. Code §
48.18.200 forbids suit limitation provisions that tie the time to sue to the date proof
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of loss is required and conclude that the suit limitation provisions at issue here are
valid under § 48.18.200. 1
2. Plaintiffs’ complaint was untimely under the suit limitation
provisions. The policies require that proof of loss be given within fifteen months
of the date of loss and that any legal action be initiated within three years after that.
Thus, even under the most generous reading of the policies, Plaintiffs were
required to file suit within four years and three months after the insured’s death.
Plaintiffs, however, did not file until four years and nine months after the insured’s
death, well beyond the time allotted.
Plaintiffs arguments to the contrary are meritless. Washington law does not
require Stonebridge to show it was prejudiced by Plaintiffs’ untimely filing.
Rather, “a finding of prejudice is not required before an insurance company may
rely on an insured’s failure to bring suit within the contract limitation period.”
Simms v. Allstate Ins. Co., 621 P.2d 155, 158 (Wash. Ct. App. 1980). Moreover,
there is nothing in the language of the policies suggesting that the parties somehow
intended to create a prejudice requirement by contact. To the contrary, the policies
1 Because we conclude that the suit limitation provisions do not violate
Wash. Rev. Code § 48.18.200(1)(c), we need not – and do not – address whether
either of the policies constitutes “disability insurance” for the purposes of Wash.
Rev. Code § 48.20.142.
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plainly require that any action be brought, at the absolute latest, within four years
and three months of the loss. Plaintiffs simply filed too late.
• ! •
The judgment of the district court is
AFFIRMED.
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