Greenwich Insurance Company v. Media Breakway, LLC

417 F. App'x 642

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 1, 2011
• Docket: 09-56347
• Status: Unpublished

Opinion

MEMORANDUM **

The parties are familiar with the facts of this case, which we will not recite.

We need not reach the propriety of the district court’s conclusion that the arbitration award was entitled to collateral estoppel effect. Regardless of whether full preclusion applies, the award and the underlying complaint provide a sufficient record to determine if summary judgment was appropriate. See Horace Mann Ins. Co. v. Barbara B., 4 Cal.4th 1076, 17 Cal. Rptr.2d 210, 846 P.2d 792, 795-96 (1993) (determination as to the duty to defend usually may be made based on a comparison of the terms of the policy and the allegations in the underlying complaint).

Greenwich had neither a duty to defend nor a duty to indemnify Media Breakaway or Richter. Greenwich’s policy contained two broadly worded exclusions precluding coverage of intentional conduct or conduct resulting in ill-gotten profits. All allegations in the MySpaee complaint, and all findings of liability in the arbitration award, involved intentional conduct and wrongful profits. 1 Neither the complaint nor the award suggests “any potential for liability under the policy.” Horace Mann, 17 Cal.Rptr.2d 210, 846 P.2d at 797. Likewise, the Indian Harbor policy was subject to similar exclusions and did not provide coverage. We therefore need not reach the question of whether California Insurance Code section 533 barred coverage.

Because the MySpaee action did not give rise to a duty to defend, Greenwich and Indian Harbor are entitled to reimbursement based on reservations of rights in the Greenwich policy and Indian Harbor correspondence. See Scottsdale Ins. Co. v. MV Transp., 36 Cal.4th 643, 31 Cal. Rptr.3d 147, 115 P.3d 460, 467 (2005).

AFFIRMED.

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

1 . Although the district court opined that the award made “some passing reference to some conduct that could be considered negligent,” we review the grant of summary judgment de novo, see Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc), and conclude the award involved no covered conduct.