Edens v the Netherlands Insurance Company

Edens appealed summary judgment to company on his wrongful denial of claim and bad faith claims. The panel affirmed. It held that Edens did not forfeit ambiguity as an argument as it argued meaning of the relevant provision before the district court, but, did waive reasonable expectations arguments by failing to raise it in his opening brief. It held the policy unambiguously excluded the victim here as he was riding a motorcycle owned by an insured and the relevant provision cannot be read to cover collisions with cars not owned by the insureds as that would require the excising of language form the provision and would turn a provision with two distinct scenarios of being in a car not owned by an insured or a family member of an insured or when an insured is hit while a pedestrian into a one provision of being struck by an uninsured car which is simply not grammatically possible. It rejected the approach of a 10th Circuit  unpublished opinion analyzing virtually identical language holding that the term “occupying” is transitive and its object is the phrase “any ‘auto’ you do not own” making the whole provision unambiguous in excluding autos owned by family members for coverage as that exclusion unambiguously appears right after the grant of coverage. It held the lack of coverage precluded the bad faith claim under Oklahoma law. It also affirmed the termination of Edens’ motions in limine as both were trial motions and the case was resolved at summary judgment.