Opinion
21-35477
10-20-2022
SHOKOFEH TABARAIE DDS, PLLC, Plaintiff-Appellant, v. ASPEN AMERICAN INSURANCE COMPANY, Defendant-Appellee.
NOT FOR PUBLICATION
Submitted August 12, 2022 Seattle, Washington
Appeal from the United States District Court for the Western District of Washington, D.C. No. 2:20-cv-00616-BJR Barbara Jacobs Rothstein, District Judge, Presiding
Before: BERZON, CHRISTEN, and FORREST, Circuit Judges.
MEMORANDUM [*]
Plaintiff Shokofeh Tabaraie DDS, PLLC ("Tabaraie") timely appeals the district court's dismissal of her claims in this insurance coverage dispute with Defendant Aspen American Insurance Company ("Aspen American"). We review de novo the order granting Aspen American's motion to dismiss for failure to state a claim on which relief can be granted, Mudpie, Inc. v. Travelers Cas. Ins. Co., 15 F.4th 885, 889 (9th Cir. 2021); Fed R. Civ. P. 12(b)(6), and we affirm. We assume the parties' familiarity with the facts and do not recite them here.
Tabaraie seeks coverage under her Aspen American insurance policy for economic business losses incurred during the COVID-19 pandemic. Tabaraie alleges that Aspen American breached her policy by refusing to cover Tabaraie's loss of business income and extra expenses resulting from "direct physical loss" and losses caused by operation of "civil authority." Tabaraie also argues that, regardless of this court's disposition of her contractual claims, Aspen American is extracontractually liable for failing to investigate the facts underlying the claim.
1. Direct Physical Loss. While this appeal was pending, the Washington Supreme Court held, as a matter of contractual interpretation, that losses due to the Governor's COVID-19 orders do not qualify for coverage as "direct physical loss of or damage to. . . property," and that the virus exclusion in that case also barred coverage. See Hill &Stout, PLLC v. Mut. of Enumclaw Ins. Co., 515 P.3d 525, 532 (Wash. 2022). "When interpreting state law, we are bound to follow the decisions of the state's highest court." Mudpie, 15 F.4th at 889 (quoting Diaz v. Kubler Corp., 785 F.3d 1326, 1329 (9th Cir. 2015)). The district court did not err in holding that Tabaraie was not entitled to coverage under the provisions covering business losses resulting from "direct physical loss."
2. Civil Authority. Tabaraie also asserts that it may recoup her losses under a policy provision that provides coverage when an "action of civil authority . . . prohibits access" to the insured's premises "due to loss of or damage to property other than the insured premises." Tabaraie's argument fails because the complaint includes no colorable allegation that the Governor entered his orders in response to any physical property damages. See Hill &Stout, 515 P.3d at 533 (explaining that the COVID-19 pandemic did not cause physical alteration of the covered property, nor was property "rendered unsafe or uninhabitable because of a dangerous physical condition").
3. Extracontractual Claims. Finally, Tabaraie alleges that Aspen American failed to investigate the facts of her claim, violating the Washington Consumer Protection Act, Wash. Code Rev. § 19.86, et seq., and a general duty of good faith and fair dealing. These claims fail. Because the policy does not provide coverage, there was nothing to investigate that could have affected the coverage decision.
AFFIRMED.
[*] 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).