Aqua Star (Usa) Corp. v. Travelers Casualty and Surety

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2018
• Docket: 16-35614
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AQUA STAR (USA) CORP., a subsidiary No. 16-35614 of Admiralty Island Fisheries, Inc., D.C. No. 2:14-cv-01368-RSL Plaintiff-Appellant,

v. MEMORANDUM*

TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

Argued and Submitted March 12, 2018 San Francisco, California

Before: McKEOWN and BEA, Circuit Judges, and BENITEZ,** District Judge.

Aqua Star (USA) Corp. (“Aqua Star”) appeals the district court’s grant of

summary judgment to Travelers Casualty and Surety Company of America

(“Travelers”) in an insurance dispute over whether a Travelers “Computer Fraud”

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation. policy covers Aqua Star’s losses from a fraudulent email scheme. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

The parties agree that Washington law governs the interpretation of the

contract. In Washington, “[a]n insurance policy is construed as a whole, with the

policy being given a fair, reasonable, and sensible construction as would be given

to the contract by the average person purchasing insurance.” Weyerhaeuser Co. v.

Commercial Union Ins. Co., 142 Wash. 2d 654, 666 (2000), as amended (Jan. 16,

2001) (internal quotation marks omitted). We “must” enforce “clear and

unambiguous” policy language “as written.” Id. Applying these principles, even

assuming without deciding that the policy generally covers “Computer Fraud” of

the kind that duped Aqua Star, the policy’s exclusions foreclose coverage.

Exclusion G unambiguously provides that the policy “will not apply to loss

or damages resulting directly or indirectly from the input of Electronic Data by a

natural person having the authority to enter the Insured’s Computer System . . . .”

Aqua Star’s losses resulted from employees authorized to enter its computer

system changing wiring information and sending four payments to a fraudster’s

account. These employees “ha[d] the authority to enter” Aqua Star’s system when

they “input” Electronic Data, on Aqua Star computers, to change the wiring

information and authorize the four wires. Their conduct fits squarely within the

2 Exclusion. While other contractual exclusions may also bar coverage in this case,

we need not go any further.

Washington’s rule of efficient proximate cause does not help Aqua Star

because that rule “applies only when two or more perils combine in sequence to

cause a loss and a covered peril is the predominant or efficient cause of the loss.”

Vision One, LLC v. Philadelphia Indem. Ins. Co., 174 Wash. 2d 501, 519 (2012)

(first emphasis added). Where, as here, there is only one “peril”—Computer

Fraud—“[a]n insured may not avoid a contractual exclusion merely by affixing an

additional label or separate characterization to the act or event causing the loss.”

Kish v. Ins. Co. of N. Am., 125 Wash. 2d 164, 170 (1994).

AFFIRMED.