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Todd Brandt and Karen v. American Bankers

August 10, 2011

TODD BRANDT AND KAREN BRANDT, PLAINTIFFS-APPELLANTS,
v.
AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding D.C. No. 3:08-cv-05760-BHS

The opinion of the court was delivered by: Gonzalez, Chief District Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

June 6, 2011-Seattle, Washington

Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and Irma E. Gonzalez, Chief District Judge.*fn1

Opinion by Judge Gonzalez

OPINION

Todd and Karen Brandt appeal the district court's order granting American Bankers Insurance Company's motion to set aside default judgment for excusable neglect under Fed. R. Civ. P. 60(b)(1). The Brandts argue that once the district court concluded American Bankers acted culpably in failing to respond to the complaint, it was precluded as a matter of law from setting aside the default judgment.

We hold that the district court applied the correct legal standard, and that it did not abuse its discretion.

Background

American Bankers issued a flood insurance policy to the Brandts under the National Flood Insurance Program, 42 U.S.C. §§ 4001 et seq., and its related regulations. After the Brandts' home flooded in December of 2007, the Brandts submitted a claim to American Bankers. Although American Bankers paid a portion of the claim, the Brandts believed the payment was too low.

The Brandts brought suit against American Bankers in the U.S. District Court for the Western District of Washington, alleging breach of contract and bad faith under Washington law. The Brandts served process on American Bankers through the Office of the Insurance Commissioner for the State of Washington ("OIC") as permitted by Washington law. See R.C.W. § 48.05.200. The OIC accepted service of the complaint and sent it, via certified mail, to American Bankers' registered agent, Corporations Service Company ("CSC").

Thereafter, CSC forwarded the complaint, via email, to two individuals at Assurant Group, American Bankers' parent company, according to instructions for service on record with CSC. Although personnel at Assurant should have forwarded the complaint to the appropriate personnel at American Bankers, they failed to do so. The Brandts' counsel also mailed a copy of the complaint to the American Bankers ...


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