                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  April 25, 2008
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court



    DUHHAINE WAEKER;
    HOLLIE WAEKER,

                Plaintiffs-Appellants,                  No. 07-3139
                                                (D.C. No. 05-CV-1347-MLB)
    v.                                                    (D. Kan.)

    AMERICAN FAMILY MUTUAL
    INSURANCE COMPANY,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.


         This diversity action arises from Duhhaine and Hollie Waeker’s insurance

claim for personal property theft loss. They filed their claim pursuant to the

terms of a comprehensive homeowners’ insurance policy issued by American

Family Mutual Insurance Company (“American Family”). After American Family



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
denied the Waekers’ claim, they brought suit alleging that (1) American Family

breached its contract with them by refusing to pay a valid claim and (2) the

doctrines of waiver and estoppel precluded American Family’s denial of

coverage. 1 Applying the substantive law of Kansas, which the parties agree

governs this case, the district court granted American Family’s motion for

summary judgment. This appeal followed. 2 Our jurisdiction arises under 28

U.S.C. § 1291, and we affirm.

      We review de novo the district court’s grant of summary judgment,

applying the same legal standard used below. Doña Ana Mut. Domestic Water

Consumers Ass’n v. City of Las Cruces, 516 F.3d 900, 906 (10th Cir. 2008).

Summary judgment is appropriate “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). “In ruling on summary judgment, the court must resolve all


1
      The Waekers have expressly abandoned their claim for “unlawful insurance
claims practices” on appeal.
2
       The Waekers are represented by counsel. Counsel bears the responsibility
to “file an appendix sufficient for considering and deciding the issues on appeal,”
10th Cir. R. 30.1(A)(1), and when a party fails to do so, “the court may decline to
consider” the issues, 10th Cir. R. 10.3. By itself, the Waekers’ appendix is
inadequate to allow us to review their arguments. However, because American
Family filed a supplemental appendix containing the relevant district court
filings, see 10th Cir. R. 30.2(A)(1), the record as a whole is sufficient to permit
review, see Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000). We proceed to the
merits of the appeal, but remind counsel of the duty to follow this circuit’s rules.

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ambiguities and draw all factual inferences in favor of the non-moving party.”

Doña Ana, 516 F.3d at 906 (quotation omitted). “We review the district court’s

determination of state law de novo.” Id.

      The district court detailed the facts and procedural history involved in this

case, and we need not repeat that material here. Waeker v. Am. Family Mut. Ins.

Co., No. 05-1347-MLB, slip op. at 2-11 (D. Kan. Apr. 27, 2007). Suffice it to say

that the “COVERAGE B - PERSONAL PROPERTY” section of the insurance

policy at issue states:

      We cover risks of accidental direct physical loss to property
      described in Coverage B-Personal Property when caused by a peril
      listed below, unless the loss is excluded in this policy.
      ....
             9.    Theft, including damage from attempted theft, and loss
                   of property from a known place only when it is likely
                   that a theft occurred.

                    a.   We do not cover:
                    ....
                         (2) theft from the insured premises while the
                         dwelling is under construction, until the dwelling
                         is completed and occupied.

(emphasis added). The district court noted that the Waekers did “not controvert

the fact that their dwelling had not been ‘completed.’ In fact, [they] admit[ed]

that the construction on their home was ongoing.” Thus, the district court

rejected the Waekers’ breach-of-contract claim, stating:

      Because the policy precludes coverage for theft when the dwelling
      under construction is not “completed and occupied,” plaintiffs have
      not stated a genuine issue of material fact with respect to whether

                                           -3-
      defendant breached the insurance contract. Reliance on this policy
      term is clearly permitted by the policy and defendant could not have
      breached the insurance contract when it denied plaintiffs[’] claim.
             ....
             It was plaintiff[s’] burden to prove that their loss was of the
      type included within the coverage of the policy. See Clark Equip.
      Co. v. Hartford Accident & Indem. Co., [608 P.2d 903, 906 (Kan.
      1980)]. Plaintiffs did not do so and defendant was justified in
      denying plaintiffs’ claim. Therefore, the claim of breach of contract
      fails because plaintiffs cannot show a breach of the insurance policy.

      The Waekers also argued that American Family should be estopped from

denying coverage on the basis of the “completed and occupied” language, or had

waived its right to rely on this language, because it knew when it sold the

Waekers their policy that their dwelling was under construction. The district

court rejected this argument as well, stating:

      Kansas cases have consistently held that waiver and estoppel cannot
      be used to expand coverage of an insurance policy where the policy
      unambiguously excludes coverage for the insured’s claim. Von
      Hillman v. Colonial Penn. Ins. Co., [869 P.2d 248, 249 (Kan. Ct.
      App. 1994)]. . . . Because the insurance policy unambiguously
      excludes coverage of the claim made in this case, plaintiffs may not
      invoke the principles of waiver and estoppel.

      On appeal, the Waekers challenge the district court’s rejection of their

breach-of-contract claim, arguing that the court improperly weighed the evidence;

erroneously placed the burden of proof on them; and incorrectly found that their

home was under construction, incomplete, and unoccupied at the time of the theft

loss. They also contend that the district court erred in determining that the

doctrines of waiver and estoppel are inapplicable because “the ‘completed and


                                         -4-
occupied’ language relied on by American Family is . . . exclusionary” language,

not “coverage language.”

      None of the Waekers’ arguments is meritorious. Having carefully reviewed

the briefs, the appendix, and the applicable law pursuant to the above-mentioned

standards, we conclude that the Waekers have failed to identify any reversible

error in this case. We therefore AFFIRM the judgment of the district court for

substantially the same reasons stated in its thorough memorandum and order dated

April 27, 2007.

                                              Entered for the Court


                                              Carlos F. Lucero
                                              Circuit Judge




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