
    Arild LEAVENWORTH; et al., Plaintiffs—Appellees, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant—Appellant.
    No. 06-35678.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Aug. 27, 2008.
    Filed Oct. 22, 2008.
    Pamela Sue Hediger, Evashevski Elliott Cihak & Hediger, PC, Corvallis, OR, for Plaintiffs-Appellees.
    Douglas F. Foley, Esquire, Foley & Buxman, PLLC, Vancouver, WA, for Defendant-Appellant.
    Before: T.G. NELSON, HAWKINS, and BYBEE, Circuit Judges.
   MEMORANDUM

State Farm Fire and Casualty Company (“State Farm”) appeals the district court’s decision to grant judgment as a matter of law. The district court concluded that there was insufficient evidence for a reasonable jury to conclude that State Farm detrimentally relied on material misrepresentations of Arild and Jennifer Leavenworth (“the Leavenworths”). For the reasons set forth below, we now affirm.

“In order to use any representation by or on behalf of the insured in defense of a claim under the policy, the insurer must show that the representations are material and that the insurer relied on them.” Or. Rev.Stat. § 742.208(3). In the insurance context, reliance “requires some evidence of detrimental action or change in position” by the insurer, such as offering coverage, calculating risk, or incurring additional investigation expenses. Eslamizar v. Am. States Ins. Co., 134 Or.App. 138, 894 P.2d 1195, 1199 (1995).

In the instant case, State Farm failed to prove reliance because it never changed its position or took detrimental action based on the Leavenworths’ statements. Rather, the evidence indicates that State Farm repeatedly acted independently of, or in opposition to, the Leavenworths’ factual assertions. Indeed, State Farm did not even obtain the alleged misleading statements from the Leavenworths until after it had begun an advanced investigation for arson. Whatever expenses State Farm might have incurred in this case came about in spite of the Leavenworths’ statements, not in detrimental reliance upon them.

Accordingly, we AFFIRM the district court’s judgment. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     