Green Fili LLC v. United States Liability Insurance Company

• Court: District Court, D. Arizona
• Decided: October 12, 2023
• Docket: 2:23-cv-00655
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

10 Green Fili, LLC, an Arizona limited liability No. CV-23-00655-PHX-DGC company, 11 ORDER Plaintiff, 12 v. 13 United States Liability Insurance Company, 14 a Nebraska company,

15 Defendant. 16 17 18 This case involves an insurance coverage dispute stemming from a lawsuit against 19 Plaintiff Green Fili, LLC. Plaintiff asserts breach of contract and related claims against 20 Defendant United States Liability Insurance Company. Doc. 1-3 at 5-19. Defendant has 21 filed a motion for summary judgment. Doc. 13. The motion is fully briefed and neither 22 side requests oral argument. For reasons stated below, the Court will grant the motion. 23 I. Background. 24 The following facts are not disputed for purposes of summary judgment. Plaintiff 25 operates a Filiberto’s restaurant located in Tempe, Arizona. Doc. 16 ¶ 6. In August 2021, 26 several former employees of the restaurant filed a civil complaint in state court alleging 27 that Plaintiff had failed to pay them minimum wages and overtime pay in violation of the 28 Fair Labor Standards Act and various state laws (the “Lawsuit”). Docs. 14 ¶ 4, 16 ¶ 9; see 1 Doc. 14-1 at 60-76. An amended complaint was filed in the Lawsuit and served on Plaintiff 2 in November 2021. Docs. 14 ¶ 5, 16 ¶ 10; see Doc.14-1 at 78-117.1 3 Between 2016 and 2023, Plaintiff was insured under employment practices liability 4 insurance policies issued by Defendant (the “EPL Policies”). Doc. 16 ¶ 2. The EPL 5 Policies are “claims made” policies – they limit coverage to certain employment-related 6 claims first made against an insured during the respective policy period and reported to 7 Defendant within that period or a specified time thereafter. The EPL Policy at issue here 8 was in effect from January 8, 2021 to January 8, 2022 (the “21-22 Policy”). Docs. 14 ¶ 1, 9 16 ¶ 3; see Doc. 14-1 at 3-28. The 21-22 Policy was renewed for an additional one-year 10 period, from January 8, 2022 to January 8, 2023 (the “22-23 Policy”). Docs. 14 ¶ 2, 16 11 ¶ 4; see Doc. 14-1 at 33-58. 12 The allegations in the Lawsuit qualify as a “Claim” under the 21-22 Policy. Doc. 13 14 ¶ 7. Plaintiff first reported that Claim to Defendant on March 30, 2022. Docs. 14 ¶ 8, 14 16 ¶¶ 16-17. On April 11, 2022, Defendant denied coverage under the 21-22 Policy’s 15 Notice of Claim provision because Plaintiff did not report the Claim within 60 days after 16 the Policy expired on January 8, 2022. Docs. 14 ¶ 14, 16 ¶¶ 18-19; see Docs. 14-1 at 17 15-16, 123-26.2 The Lawsuit was settled and dismissed in September 2022. Doc. 1-3 at 8, 18 ¶ 23. 19 Plaintiff brought this action in March 2023, alleging that Defendant wrongfully 20 denied coverage under the EPL Policies. Id. at 5-26. Specifically, Plaintiff alleges that 21 because each successive EPL Policy was renewed between 2016 and 2023, the “continuum 22 of coverage” resolved any discrepancies with respect to timely notice of the Claim. Id. 23 1 See also Guadarrama v. Green Fili, LLC, No. CV2021-013286; Judicial Branch 24 of Arizona, Maricopa County, Civil Court Case Information, https://www.superiorcourt. maricopa.gov/docket/CivilCourtCases/caseInfo.asp?caseNumber=CV2021-013286 (last 25 visited Oct. 9, 2023).

26 2 No coverage exists under the 22-23 Policy because the Claim was not first made during that policy period (January 8, 2022 to January 8, 2023). See Docs. 13 at 6-7, 14 27 ¶ 15, 14-1 at 123-24; see also Tucker v. Am. Int’l Grp., Inc., No. 3:09-CV-1499 CSH, 2015 WL 403195, at *10 (D. Conn. Jan. 28, 2015) (courts enforce the plain language of claims 28 made policies “to hold there is no coverage when the claim is made before the operative date of the policy”). 1 at 7-8. Plaintiff asserts state law claims for breach of contract, breach of the implied 2 covenant of good faith and fair dealing, unjust enrichment, intentional misrepresentation, 3 and bad faith. Id. at 8-18. Defendant moves for summary judgment on all claims. Doc. 13. 4 II. Legal Standards. 5 Summary judgment is appropriate if the moving party shows that there is no genuine 6 dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed. 7 R. Civ. P. 56(a). The moving party “bears the initial responsibility of informing the court 8 of the basis for its motion, and identifying those portions of [the record] which it believes 9 demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 10 U.S. 317, 323 (1986). Only disputes over facts that might affect the outcome of the suit 11 will preclude the entry of summary judgment, and the disputed evidence must be “such 12 that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 13 Lobby, Inc., 477 U.S. 242, 248 (1986). 14 Under Arizona law, the interpretation of an insurance policy is a question of law for 15 the court to decide. See Univ. Mech. Contractors of Ariz., Inc. v. Puritan Ins. Co., 723 16 P.2d 648, 650 (Ariz. 1986); Keggi v. Northbrook Prop. & Cas. Ins. Co., 13 P.3d 785, 788 17 (Ariz. Ct. App. 2000).3 The provisions and undefined terms of an insurance policy must 18 be construed according to their plain, ordinary, and everyday sense. See Keggi, 13 P.3d 19 at 788 (citing Sparks v. Republic Nat. Life Ins. Co., 647 P.2d 1127, 1132 (Ariz. 1982)); 20 Ariz. Prop. & Cas. Ins. Guar. Fund v. Dailey, 751 P.2d 573, 575 (Ariz. Ct. App. 1987). 21 An ambiguity exists only when the language of the policy is unclear and reasonably can be 22 construed in more than one sense. See Roberts v. State Farm Fire & Cas. Co., 705 P.2d 23 1335, 1337 (1985) (citing Sparks, 647 P.2d at 1132). 24 III. Discussion. 25 A. Claims Made Policies vs. Occurrence Policies. 26 In addressing the parties’ arguments below, it is important to consider the 27 differences between a “claims made” policy and an “occurrence” policy. An occurrence

28 3 The 21-22 Policy does not contain a choice-of-law provision. Both parties cite Arizona law as controlling, and the Court will do the same. See Docs. 13 at 5-10, 15 at 4-8. 1 policy of liability insurance covers certain negligent or wrongful acts of the insured that 2 occur within the policy period, regardless of the date of discovery or the date a claim is 3 made against the insured. This type of policy generally requires that notice be given to the 4 insurer within a specified time after the insured event. Because discovery of the insured 5 event may not occur until years after the occurrence policy has expired, an extended 6 exposure time, or “tail,” is created. Occurrence policies with a “tail” that extends beyond 7 the policy period pose a problem for the insurer because it cannot calculate the premium 8 for the risk with any certainty. To reduce exposure to an unpredictable and lengthy “tail” 9 of claims made years after the occurrence policy has expired, insurers shifted to claims 10 made policies. See Thoracic Cardiovascular Assocs., Ltd. v. St. Paul Fire & Marine Ins. 11 Co., 891 P.2d 916, 919 (Ariz. Ct. App. 1994). 12 A claims made policy differs from an occurrence policy in several important 13 respects. A claims made policy covers an insured only for claims made against it during 14 the policy period. See Thoracic Cardiovascular, 891 P.2d at 920. “Such a policy has the 15 distinct advantage for the insurer that when the policy period ends without a claim having 16 been made, the insurer can be certain that the policy will not expose it to any further 17 liability.” Hartford Fire Ins. Co. v. California, 509 U.S. 764, 771 (1993). Notice of the 18 claim typically is required to be given during the policy period or within a specified amount 19 of time after the policy expires. See Thoracic Cardiovascular, 891 P.2d at 920. Because 20 it triggers coverage, “the notice of the claim to the insurer is the most important aspect of 21 the claims made policy.” Id. 22 A claims made policy provides less coverage than an occurrence policy, but the 23 limited coverage “is not without a corresponding benefit to the insured: in claims made 24 policies, risk exposure is terminated at a fixed point and, as a result, underwriters may more 25 accurately predict an insurer’s potential liability. This decreased risk allows insurers to 26 supply claims made policies at a lower price, thereby benefitting insureds.” Physicians 27 Ins. Co. of Wis. v. Williams, 279 P.3d 174, 177 (Nev. 2012); see Checkrite Ltd., Inc. v. Ill. 28 Nat’l Ins. Co., 95 F. Supp. 2d 180, 191-92 (S.D.N.Y. 2000) (“The existence of a cut-off 1 date is integral to a claims-made policy, as it is a distinct characteristic of such a policy that 2 directly relates to rate setting. The insurer is afforded greater certainty in computing 3 premiums, since it does not need to be concerned with the risk of claims filed long after 4 the policy period has ended, and as a result the insured may benefit from lower premiums.”) 5 (cleaned up); Shareplus Fed. Bank v. Heath, No. 1:08-CV-1859-GET, 2010 WL 11601878, 6 at *5 (N.D. Ga. Sept. 13, 2010) (“With a claims-made insurance policy, the insurer 7 undertakes a more limited risk than an insurer who issues an occurrence policy; insurers 8 typically charge higher premiums for occurrence policies to compensate for their exposure 9 to indefinite future liability.”); PCCP LLC v. Endurance Am. Specialty Ins., No. 12-CV- 10 0447-YGR, 2013 WL 4384245, at *6 (N.D. Cal. Aug. 13, 2013) (“[Claims made] policies 11 do not countenance extensions for last-minute claims, but . . . such policies are valid as a 12 matter of public policy because they allow insurers to offer low premiums[.]”).4 13 B. The 21-22 Policy. 14 The 21-22 Policy clearly is a claims made policy. The Policy states at its outset: 15 This is a Claims Made Policy. This Policy covers only those Claims first 16 made against the Insured during the Policy Period or Extended Reporting Period, if purchased. 17 Doc. 14-1 at 18; see id. at 5 (same in the Policy Declarations). 18 The 21-22 Policy defines its Policy Period as “the period from the effective date of 19 [the] Policy as set forth in the Policy Declarations, to the expiration date or effective date 20 of cancellation or non-renewal, if any.” Doc. 14-1 at 19 (§ III.N). The Policy Declarations 21 set forth an effective date of January 8, 2021. Id. at 5. And the Policy specifically identifies 22 the “Policy Period” as running “From: 01/08/2021 To: 01/08/2022.” Id. at 3, 5. Because 23 24 25 26 4 Insureds under a claims made policy may protect themselves against last-minute 27 claims and gaps in coverage by purchasing an extended reporting period. See Thoracic Cardiovascular, 891 P.2d at 922; PCCP, 2013 WL 4384245, at *6. Plaintiff had the right 28 to purchase an extended reporting period for the 21-22 Policy, but did not do so. See Docs. 14 ¶ 13, 14-1 at 14-15. 1 the Policy was not cancelled or non-renewed, the Policy Period thus ran from the January 8, 2 2021 effective date until the January 8, 2022 expiration date.5 3 The 21-22 Policy covers Claims first made against an insured during the Policy 4 Period, but only if the Claims are timely reported to Defendant. Specifically, the Insuring 5 Agreement provision states: 6 The Company will pay on behalf of the Insured, Loss in excess of Retention 7 not exceeding the Limit of Liability . . . that the Insured shall become legally obligated to pay because of Claims first made against the Insured during the 8 Policy Period . . . . Such Claim[s] must be reported to the Company in 9 accordance with Section IX herein. 10 Id. at 14 (§ I.A). 11 Section IX contains the Notice of Claim provision under which Defendant denied 12 coverage for the Lawsuit. Docs. 14 ¶ 14, 16 ¶ 18. That provision states, in relevant part: 13 As a condition precedent to exercising any right to coverage under this 14 policy, an Insured shall give to the Company written notice of a Claim, as soon as practicable but: (a) if the Policy expires, is cancelled or is 15 non-renewed and if no Extended Reporting Period is purchased, no later than 16 sixty (60) days after the expiration date or effective date of such cancellation or non-renewal. 17 Doc. 14-1 at 15. 18 C. The Parties’ Arguments. 19 Defendant argues that under the clear and plain language of the 21-22 Policy, no 20 coverage exists for the Lawsuit because the Policy expired on January 8, 2022 and Plaintiff 21 did not report the Claim to Defendant within 60 days after the expiration date. Doc. 13 at 22 8-12. The Court agrees.6 23

24 5 Plaintiff had the right to cancel the 21-22 Policy by providing written notice to Defendant, and Defendant could cancel the Policy if Plaintiff failed to pay the premium 25 when due. If Defendant refused to renew the Policy, it was required to provide written notice of non-renewal to Plaintiff not less than 60 days before the end of the Policy Period. 26 See id. at 24 (§ X). As noted, the 21-21 Policy was not cancelled or non-renewed.

27 6 Defendant argues, in the alternative, that Plaintiff did not report the Claim “as soon as practicable.” Doc. 17 at 3, 6-7. The Court need not address this argument given the 28 ruling in this order, and the Court will not otherwise consider it because it was first made in Defendant’s reply brief. See Doc. 17 at 6-7. 1 There is no dispute that the 21-22 Policy was not cancelled or non-renewed and no 2 extended reporting period was purchased. Docs. 13 at 9, 14 ¶ 13, 15 at 6, 9. By its express 3 terms, then, the 21-22 Policy expired at the end of the Policy Period on January 8, 2022. 4 Doc. 14-1 at 5, 19. As a condition precedent to coverage, Plaintiff was required to give 5 Defendant notice of the Claim by March 9, 2022 (60 days after the January 8 expiration 6 date). Doc. 14-1 at 15. The notice was given on March 30, 2022, 21 days late. Docs. 14 7 ¶ 8, 16 ¶¶ 16-17. 8 “Unlike a mere contract term, the breach of which must be material before it excuses 9 another party from performing, one party’s failure to fulfill a condition precedent entirely 10 excuses any remaining obligations of the other party.” Biltmore Bank of Ariz. v. First Nat’l 11 Mortg. Sources, L.L.C., No. CV-07-936-PHX-LOA, 2008 WL 564833, at *7 (D. Ariz. 12 Feb. 26, 2008). Because timely notice is a condition precedent to coverage under the 21-22 13 Policy, and Plaintiff failed to satisfy that condition, no coverage exists and Defendant had 14 no obligation to indemnify Plaintiff for any amount it paid to settle the Lawsuit or for any 15 attorney’s fees or costs it incurred in reaching the settlement. See Doc. 13 at 9; Thoracic 16 Cardiovascular, 891 P.2d at 923 (“[T]he condition requiring the insured to provide notice 17 of a claim during the policy period is a material part of the agreed exchange. No coverage 18 exists unless notice is given during the policy term.”); Supima v. Phila. Indem. Ins. Co., 19 No. CV-20-00617-PHX-SPL, 2021 WL 2454052, at *8 (D. Ariz. June 16, 2021) (finding 20 no coverage under a claims made policy where the plaintiff failed to “report claims made 21 against it to [the] insurer within 60 days of the policy period’s end”); Capitol Specialty Ins. 22 Corp. v. Big Sky Diagnostic Imaging, LLC, No. CV 17-54-BLG-SPW-TJC, 2019 WL 23 1245642, at *10 (D. Mont. Jan. 30, 2019) (“[T]he Court concludes a claim was made 24 against Big Sky during the 2015 Policy period. But because it was not reported until after 25 expiration of the 60-day extended reporting period, there was no coverage under the 2015 26 Policy.”); Inn-One Home, LLC v. Colony Specialty Ins. Co., 521 F. Supp. 3d 495, 504-05 27 (D. Vt. 2021) (“Inn-One was obligated to provide notice of [the] claim during the ‘policy 28 1 period,’ which ran from the Policy’s effective date to its expiration date, in order to satisfy 2 a condition precedent to coverage.”). 3 Plaintiff makes several arguments in opposition to the motion for summary 4 judgment. None has merit. 5 Plaintiff argues that the language of the Notice of Claim provision is ambiguous and 6 the ambiguity creates an issue of fact precluding summary judgment. Doc. 15 at 4-5. But 7 there is nothing ambiguous about the provision or the 21-22 Policy as a whole. The Notice 8 of Claim provision clearly explains that if no extended reporting period is purchased, the 9 insured is required, as a condition precedent to coverage, to give Defendant notice of a 10 claim no later than 60 days after the expiration date of the 21-22 Policy or the effective 11 date of any cancellation or non-renewal of the Policy. Doc. 14-1 at 15. The expiration 12 date applies here because there was no cancellation or non-renewal. The 21-22 Policy 13 clearly identifies its expiration date as January 8, 2022. Id. at 3, 5. Thus, the unambiguous 14 language required Plaintiff to give Defendant notice of the Claim no later than 60 days 15 after January 8, 2022. See Docs. 13 at 8-9, 17 at 3-4; see also EurAuPair Int’l v. Ironshore 16 Specialty Ins. Co., 787 Fed. Appx. 469, 470 (9th Cir. 2019) (finding no ambiguity where 17 the policy required the insured to report claims “as soon as practicable but in no event later 18 than thirty (30) days after the end of the [defined] Policy Period”). 19 Because the 21-22 Policy was renewed, Plaintiff argues, the “as soon as practicable” 20 language applies and there is no reason to go beyond the word “but” in the Notice of Claim 21 provision. Doc 15 at 5. Stated differently, Plaintiff contends that renewal negates the 22 requirement to provide notice of a claim within 60 days after the expiration date. Id. at 5-6. 23 But this argument ignores the actual Policy language and seeks to delete the word “expires” 24 and strike a condition precedent to coverage. See Doc. 13 at 9. 25 “To require an insured to report a claim in accordance with the agreed terms of a 26 policy is neither illogical nor inequitable. Capitol Specialty, 2019 WL 1245642, at *10. 27 In order to relieve Plaintiff of the consequences of its decision to not timely report the 28 Claim to Defendant, the Court “would be required to rewrite a fundamental term of the 1 policy and extend coverage beyond that contracted to provide.” Id. The Court declines to 2 do so.7 3 Plaintiff contends that because the 21-22 Policy was renewed for another one-year 4 period, it did not expire or “come to an end.” Doc. 15 at 6-9. By its express terms, however, 5 the policy came to an end on one of three specified dates: the expiration date or the earlier 6 of either the cancellation or non-renewal date. Doc. 14-1 at 3, 19, 24. Because the Policy 7 was not cancelled or non-renewed, it came to an end on its expiration date, January 8, 2022. 8 In a similar vein, Plaintiff contends that the successive renewals of the EPL Policies 9 provide Plaintiff with seamless coverage for all claims made between January 8, 2016, 10 when the initial EPL Policy became effective, and January 8, 2023, when the 22-23 Policy 11 was non-renewed. Doc. 15 at 6-9. But nowhere in the 21-22 Policy or in any other EPL 12 Policy identified by Plaintiff does it say that renewal creates a continuous period of 13 coverage during which an insured may report claims. This argument ignores the nature of 14 a claims made policy and impermissibly would convert such a policy “into an occurrence 15 policy for any claim which arises during the span of consecutive policy periods.” Capitol 16 Specialty, 2019 WL 1245642, at *9. 17 It must be remembered that the reporting period defines coverage under a claims 18 made policy. “To read an ‘inherent’ extended reporting period into a renewal policy would 19 create a long and unbargained-for ‘tail’ of liability exposure, the avoidance of which forms 20 the conceptual framework for claims made coverage in the first instance.” Checkrite, 95 21 F. Supp. 2d at 194 (cleaned up). “This conceptual framework applies where a policy is 22 renewed, as well as when it is not, since each policy year represents an agreement as to a 23 specific period during which claims made and reported will be covered.” Id. 24

25 7 Plaintiff was aware of the claims in the Lawsuit as early as September 2021, but did not give notice to Defendant until March 30, 2022. Docs. 14 ¶¶ 6-7, 14-1 at 119. 26 Plaintiff explains that it attempted to settle the Lawsuit early to avoid protracted and costly litigation, and did not learn that settlement would require Defendant’s involvement until 27 Plaintiff received an “egregiously high” settlement demand on March 29, 2022. Docs. 15 at 2-3, 16 ¶¶ 11-17. Plaintiff does not argue that the purported reason for its notice delay 28 relieves it of the contractual obligation to give notice within 60 days after the 21-22 Policy expired. 1 Plaintiff cites no legal authority to support its seamless coverage argument. See 2 Doc. 15 at 6-9. Courts which have confronted the argument have “concluded that a renewal 3 does not extend the reporting period for claims made during the earlier policy period.” Id. 4 (citations omitted); see Tucker, 2015 WL 403195, at *15 (“[E]ach individual policy, 5 although a renewal, had its own Policy Period within which claims could be filed. . . . Once 6 the 2003 Policy (and any specified grace period) terminated, the insurers were entitled to 7 rest assured that claims from prior years were no longer covered after the reporting period 8 ended.”); Inn-One Home, 521 F. Supp. 3d at 505 (“Inn-One’s proposed construction of the 9 Policy would extend the applicable time limit for providing notice beyond the ‘policy 10 period’ to include any subsequent renewal term. This interpretation is not supported by 11 the Policy’s language and would ‘rewrite unambiguous terms in a policy to grant one party 12 a better bargain than the one it made.’”) (citation omitted); GS2 Eng’g & Env’t Consultants, 13 Inc. v. Zurich Am. Ins. Co., 956 F. Supp. 2d 686, 695 (D.S.C. 2013) (rejecting the argument 14 that “all policies should be treated as a single continuous policy or the reporting period for 15 the 2009 Policy should be extended into the 2010 Policy Period”); PAMC, Ltd. v. Nat’l 16 Union Fire Ins. Co. of Pittsburgh, No. 2:18-CV-06001-SVW-AS, 2019 WL 666726, at *6 17 (C.D. Cal. Feb. 12, 2019) (“Plaintiff argues that the policy periods under each installment 18 of the Policy should be treated as one contiguous policy period due to the successive 19 renewals of the Policy. Plaintiff is incorrect as a matter of law. Courts . . . have consistently 20 recognized that . . . the renewal of a policy does not extend a policy’s reporting period.”); 21 Ehrgood v. Coregis Ins. Co., 59 F. Supp. 2d 438, 446-47 (M.D. Pa. 1998) (“The Ehrgood 22 Plaintiffs contend . . . that renewal of the 1996-1997 policy, in effect, operates as an 23 extended reporting period under that policy. . . . This approach, however, ignores the nature 24 of the policy at issue. Each of the three policies issued by Coregis is a claims-made policy, 25 [and] an extension of the notice period in a ‘claims-made’ policy constitutes an 26 unbargained-for expansion of coverage[.]”) (citation omitted). In short, the renewal of the 27 21-22 Policy “did not serve to extend the . . . Policy’s reporting period beyond the 60-day 28 1 extension expressly written into the contract.” Capitol Specialty, 2019 WL 1245642, 2 at *10.8 3 D. Summary Judgment is Warranted on All Claims. 4 Defendant argues that because there is no coverage for the Lawsuit as a matter of 5 law, summary judgment is warranted on all claims. Doc. 13 at 2, 12. The Court agrees. 6 Each claim asserted in the complaint is based on Defendant’s denial of coverage for 7 the Lawsuit. Doc. 1-3 at 8-18; see id. at ¶¶ 34, 40, 49, 60, 77. Because there is no coverage 8 as a matter of law under the unambiguous Policy language, Defendant did not breach the 9 21-22 Policy, unjustly enrich itself, make misrepresentations, or act in bad faith. The Court 10 will grant summary judgment on all claims. See BOKF, NA v. First Am. Title Ins. Co., No. 11 CV-16-02630-PHX-SPL, 2017 WL 11631008, at *4 (D. Ariz. Dec. 11, 2017) (“Because 12 Plaintiff’s breach of contract claim fails as a matter of law, it follows then that its breach 13 of implied covenant claim must also fail.”); Kaufmann v. Geico Gen. Ins. Co., No. CV 09- 14 51-M-JCL, 2010 WL 11534141, at *10 (D. Mont. Feb. 1, 2010) (“[T]he undisputed 15 evidence demonstrates that Geico did not misrepresent the terms of the policy’s UIM 16 coverage and [plaintiff’s] claim to the contrary thus fails as a matter of law.”); Kondaur 17 Cap. Corp. v. Fid. Nat’l Title Ins. Corp., No. 1 CA-CV 12-0295, 2013 WL 1908018, at *3 18 (Ariz. Ct. App. May 7, 2013) (“[B]ecause Kondaur had no valid claim under the [policy], 19 Kondaur’s claim for bad faith fails because Old Republic had a reasonable basis to deny 20 coverage.”); see also Great Am. Assurance Co. v. PCR Venture of Phoenix LLC, 161 F. 21 Supp. 3d 778, 787 (D. Ariz. 2015) (“Arizona courts have repeatedly held that the existence 22 of a contract specifically governing the rights and obligations of each party precludes 23 recovery for unjust enrichment.”) (citations omitted). 24 / / / 25 8 Plaintiff notes that the policy number, EPL15559591, essentially stayed the same 26 between 2016 and 2023 and only changed each year with the addition of an alpha character at the end of the number. Doc. 15 at 10. But the new alpha character changed the policy 27 number. And in any event, the use of a similar policy number does not change the clear meaning of the term “expire” or otherwise provide seamless coverage under the successive 28 claims made policies. 1 IT IS ORDERED: 2 1. Defendant’s motion for summary judgment (Doc. 13) is granted. 3 2. The Clerk of Court shall enter judgment in favor of Defendant and terminate this action. 5 Dated this 12th day of October, 2023. 6

. David G. Campbell Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28