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Farmers Insurance Exchange v. Smith

filed: June 19, 1991.

FARMERS INSURANCE EXCHANGE, PLAINTIFF-APPELLANT,
v.
STEPHEN HENNESSEY SMITH AND JONG PYNG LIU, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Western District of Washington; Carolyn R. Dimmick, District Judge, Presiding; D.C. No. CV-87-1005-CRD.

Wright, Farris, and Thompson, Circuit Judges.

MEMORANDUM

Farmers Insurance Exchange appeals a judgment awarding Stephen Smith and Jong Pyng Liu replacement cost benefits under their fire policy and attorney's fees under the Washington Consumer Protection Act. Farmers argues that because Smith and Liu did not timely replace the building they are not entitled to replacement cost benefits. We reverse in part and affirm in part.

1. Jurisdiction

Farmers' California citizenship is open to question but we are satisfied that the state of the record justifies the finding of jurisdiction, which is not challenged on appeal.

2. Replacement value recovery

This case is before us for the second time. In the first appeal Smith and Liu challenged the judgment in its entirety. We reversed in part and remanded for the limited purpose of determining actual cash value, and entering judgment accordingly. Our decision in the first appeal became the law of the case. Planned Parenthood of Cent. and N. Ariz. v. State of Ariz., 718 F.2d 938, 949 (9th Cir. 1983). Further, even if our language failed to convey our intent to limit remand, we hold, based on the undisputed facts, that the three year delay in seeking costs of replacement, precludes recovery.

3. Attorney's fees

The district court awarded Smith and Liu costs and attorney's fees pursuant to the Washington Consumer Protection Act. Since we reverse the replacement value award, Smith and Liu are not entitled to costs and fees expended in pursuit of that award. However, Smith and Liu are entitled under the Consumer Protection Act to costs and fees expended in recovering the $12,280 actual cash value award from Farmers. We therefore award costs and fees to Smith and Liu for that portion of the action only. If the parties are unable to stipulate to the amount, we will consider appropriate and timely filed affidavits.

REVERSED IN PART; AFFIRMED IN PART. EACH SIDE SHALL BEAR ITS OWN COSTS ON APPEAL.

19910619

© 1998 VersusLaw ...

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