Integon Preferred Insurance Company v. Wilcox

── Integon Preferred Insurance Company v. Wilcox ── Court: Court of Appeals for the Ninth Circuit Date: June 02, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 2 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT INTEGON PREFERRED INSURANCE No. 25-5424 COMPANY, a foreign corporation, D.C. No. 2:21-cv-01501-BJR Plaintiff-counter-defendant - Appellee, MEMORANDUM* v. DANIEL WILCOX; ELIZABETH WILCOX, Washington Residents, Defendant-counter-claimants - Appellants, v. SMITH FREED & EBERHARD, PC, a foreign professional services corporation; LAW OFFICE OF ROBERT WRIXTON WARREN, a Washington professional limited liability company; DBA, Wrixton Law Office, Third-party-defendants - Appellees. and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ERIC HOFF, a Washington Resident, Defendant, Appeal from the United States District Court for the Western District of Washington Barbara Jacobs Rothstein, District Judge, Presiding Submitted May 29, 2026** Before: W. FLETCHER and JOHNSTONE, Circuit Judges, and RAKOFF, District Judge.*** Daniel and Elizabeth Wilcox appeal from the district court’s orders (1) granting summary judgment to Integon Preferred Insurance Company (“Integon”) on its duty-to-defend declaratory judgment claim; (2) granting partial summary judgment to Integon on the Wilcoxes’ extra-contractual counterclaims which rely on the duty-to-defend claim; and (3) denying summary judgment to the Wilcoxes on the extra-contractual counterclaims. The district court properly entered final judgment under Federal Rule of Civil Procedure 54(b). See Noel v. Hall, 568 F.3d 743, 747 (9th Cir. 2009). We have jurisdiction under 28 U.S.C. § 1291, and we reverse in part. We review a grant of summary judgment de novo to determine if there exists ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 2 25-5424 any genuine dispute of material fact and if the district court correctly applied the substantive law. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). There is a genuine dispute of material fact if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 1. The Wilcoxes raise a genuine dispute of material fact as to whether Integon was prejudiced by the Wilcoxes’ failure to turn over the relevant filings. Under Washington law, “where an insured breaches a ‘prompt notice’ provision of an insurance policy, the insurer is not relieved of its duties under the insurance contract unless it can show that the late notice caused it actual and substantial prejudice.” Mut. of Enumclaw Ins. Co. v. USF Ins. Co., 164 Wash. 2d 411, 426 (2008) (en banc). “Whether or not late notice prejudiced an insurer is a question of fact, and it will seldom be decided as a matter of law.” Id. at 427. A reasonable jury could find that Elizabeth Wilcox gave Integon prompt notice of the underlying lawsuit when she called the company on February 3, 2020, to inquire about the status of the underlying lawsuit’s plaintiff’s claim. Her husband had been served with process in the underlying lawsuit just two days ear