Bradley Ausmus v. Lexington Insurance Company

Ninth Circuit

Bradley Ausmus v. Lexington Insurance Company

414 F. App'x 76

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 9, 2011

Docket09-55831, 09-56137

StatusUnpublished

Cited by2 cases

This text of 414 F. App'x 76 (Bradley Ausmus v. Lexington Insurance Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bradley Ausmus v. Lexington Insurance Company, 414 F. App'x 76 (9th Cir. 2011).

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Opinion

MEMORANDUM **

This is an insurance coverage dispute filed by Bradley and Elizabeth Ausmus (the “Ausmuses”) against Lexington Insurance Company and American International Group, Inc. (collectively “Lexington”). (AIG was the parent company of Lexington.) The Ausmuses are seeking insurance coverage for defective work performed by a contractor, a Lexington insured. The district court dismissed the Complaint pursuant to Federal Civil Rule 12(b)(6), finding the claims were barred by one of the policy exclusions. A later Motion to Vacate Judgment was denied.

The district court concluded the policy exclusion was (a) plain, clear and conspicuous, and (b) the insurer was not required to provide its insured with advance notice of the reduction in coverage. The district court also concluded that the Ausmuses failed to raise their California common law argument in opposition to the Motion to Dismiss, thereby waiving that argument in their later Motion to Vacate Judgment.

This court reviews de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005), and the denial of a motion under Rule 59(e) to alter or amend the judgment for an abuse of discretion, Ta Chong Bank Ltd. v. Hitachi High Techs. Am., Inc., 610 F.3d 1063, 1066 (9th *77 Cir.2010) (citing McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir.2003)).

After carefully reviewing the record, the applicable law, and the parties’ briefs, we are convinced that the district court did not err in its conclusions. As the district court’s opinions carefully and correctly set out the law governing the issues raised, and clearly articulate the reasons underlying its decisions, issuance of a full written opinion by this Court would serve no useful purpose. Accordingly, for the reasons stated in the district court’s opinions dated April 22, 2009 and July 15, 2009, respectively, we AFFIRM.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

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MEMORANDUM **

This is an insurance coverage dispute filed by Bradley and Elizabeth Ausmus (the “Ausmuses”) against Lexington Insurance Company and American International Group, Inc. (collectively “Lexington”). (AIG was the parent company of Lexington.) The Ausmuses are seeking insurance coverage for defective work performed by a contractor, a Lexington insured. The district court dismissed the Complaint pursuant to Federal Civil Rule 12(b)(6), finding the claims were barred by one of the policy exclusions. A later Motion to Vacate Judgment was denied.

The district court concluded the policy exclusion was (a) plain, clear and conspicuous, and (b) the insurer was not required to provide its insured with advance notice of the reduction in coverage. The district court also concluded that the Ausmuses failed to raise their California common law argument in opposition to the Motion to Dismiss, thereby waiving that argument in their later Motion to Vacate Judgment.

This court reviews de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005), and the denial of a motion under Rule 59(e) to alter or amend the judgment for an abuse of discretion, Ta Chong Bank Ltd. v. Hitachi High Techs. Am., Inc., 610 F.3d 1063, 1066 (9th *77 Cir.2010) (citing McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir.2003)).

After carefully reviewing the record, the applicable law, and the parties’ briefs, we are convinced that the district court did not err in its conclusions. As the district court’s opinions carefully and correctly set out the law governing the issues raised, and clearly articulate the reasons underlying its decisions, issuance of a full written opinion by this Court would serve no useful purpose. Accordingly, for the reasons stated in the district court’s opinions dated April 22, 2009 and July 15, 2009, respectively, we AFFIRM.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

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414 F. App'x 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradley-ausmus-v-lexington-insurance-company-ca9-2011.

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