Alorica, Inc. v. Starr Surplus Lines Ins. Co.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 9, 2021
• Docket: 20-55458
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALORICA, INC., a California corporation, No. 20-55458

Plaintiff-Appellant, D.C. No. 8:19-cv-00690-JVS-KES v.

STARR SURPLUS LINES INSURANCE MEMORANDUM* COMPANY, a Texas Corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Submitted April 6, 2021** Pasadena, California

Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.

Alorica, Inc. argues that a letter from Express Scripts to Alorica dated

September 25, 2018, constitutes a “claim” against Alorica under the terms of

Alorica’s insurance policy with Starr Surplus Lines Insurance Company. The

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Page 2 of 3

district court rejected that argument and granted summary judgment to Starr. We

affirm.

In relevant part, the policy defines a “claim” as a “written demand for

monetary or non-monetary relief.” Express Scripts’ letter does not fall within that

definition. The letter rejects Alorica’s demand for $4.8 million. A refusal to

accept a demand is not itself a demand; it is only a refusal. Express Scripts’ letter

does not ask Alorica to do anything at all. Quite the opposite: The letter declares

Express Scripts’ unconditional willingness to “cooperate reasonably in any

investigation” into the underlying computer fraud, and to pay Alorica $56,791,

with no consideration from Alorica expected or requested.

Alorica characterizes Express Scripts’ refusal to pay as a request that Alorica

forgive a debt, and argues that Express Scripts’ letter therefore constitutes a

“demand for monetary relief.” But the letter could be characterized as a request to

forgive a debt only if Express Scripts in fact owed a debt in the first place. Express

Scripts denies that it owes Alorica $4.8 million, and indeed Alorica has made no

further effort to collect this money.

In each of the cases on which Alorica relies, a “demand” or “claim” arose

when someone asked the insured party for money or to work for free. See, e.g.,

Westrec Marina Mgmt., Inc. v. Arrowood Indem. Co., 78 Cal. Rptr. 3d 264, 268

(Ct. App. 2008) (“The attorney’s request for compensation while threatening Page 3 of 3

litigation was a ‘demand[.]’”); Phoenix Ins. Co. v. Sukut Constr. Co., 186 Cal.

Rptr. 513, 514 (Ct. App. 1982) (“Sukut asked Malter to work without pay to

correct the problem with the lien.”); Presidio Wealth Mgmt., LLC v. Columbia Cas.

Co., 2014 WL 1341696, at *1 (N.D. Cal. Apr. 3, 2014) (holding that investors’

“demand[] that Presidio return their funds . . . constituted a claim”). Alorica cites

no case in which the refusal of another’s demand, without more, has been held to

constitute a demand. Accordingly, we agree with the district court that Express

Scripts’ letter was not a “claim” under the insurance policy with Starr.1

AFFIRMED.

1 As we affirm based on the meaning of “claim,” we do not address the parties’ arguments regarding whether there was a “security failure” or Starr’s alternative grounds for affirmance.