Guam Industrial Services, Inc. v. Zurich American Insurance

787 F.3d 1001, 2015 A.M.C. 1521, 2015 U.S. App. LEXIS 9045, 2015 WL 3449891
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 1, 2015
Docket13-17005
StatusPublished
Cited by7 cases

This text of 787 F.3d 1001 (Guam Industrial Services, Inc. v. Zurich American Insurance) 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.

Bluebook
Guam Industrial Services, Inc. v. Zurich American Insurance, 787 F.3d 1001, 2015 A.M.C. 1521, 2015 U.S. App. LEXIS 9045, 2015 WL 3449891 (9th Cir. 2015).

Opinions

Dissent by Judge KOZINSKI.

OPINION

PER CURIAM:

This insurance coverage case arises out of the sinking of a dry dock, loaded with barrels of oil, during a typhoon bn Guam. The issues pertain to whether either of two insurance policies covered costs of damage to the dock and the clean up which was accomplished before any of the oil leaked out of the containers into the Pacific Ocean.

Guam Industrial Services, Inc. (“Guam Industrial”) owned the dry dock. At the time of the sinking, one of its insurance policies covered damage to the dock, and one covered liability for property damage caused by pollutants. After the dock sank, Guam Industrial filed a claim under each policy. The insurers denied the claims, and Guam Industrial brought suit. The district court granted summary judgment for the insurers, finding that the first policy was voidable because Guam Industrial had failed to maintain the warranty on the dock, and that the coverage under the second policy was never triggered because no pollutants were released. Guam Industrial and its CEO, Mathews Pothen, appeal. We affirm.

BACKGROUND

Guam Industrial owned and operated a dry dock called the Machinist, located in Apra Harbor, Guam. The dry dock sank on January 2, 2011. Guam Industrial had insured the dry dock under two policies: a Hull and Machinery Policy, which was underwritten collectively by Zurich American Insurance Company (“Zurich”) and Starr Indemnity and Liability Company (“Starr”), and an Ocean Marine Policy, which was underwritten by Zurich alone.

The Hull and Machinery Policy covered damage to the dry dock resulting from certain specified “perils” that included lightning, earthquake, pirates, assailing thieves, and various types of accidents and malfunctions. As a condition of coverage, the policy required Guam Industrial to obtain and maintain Navy Certification for the dry dock (“the Navy Certification warranty”). Such certification ensures that the dock has satisfied a certain level of structural integrity. It is the highest standard in the industry.

It appears, however, that Guam Industrial never obtained Navy Certification. Instead, Guam Industrial obtained “commercial” certification from a company called Heger Dry Dock, Inc. In October 2010, that commercial certification expired. Heger Dry Dock informed Guam Industrial that it would not renew the certification unless Guam Industrial undertook significant repairs. Guam Industrial then took the dry dock out of commission to conduct these repairs. The dock sank while it was undergoing the repairs.

When the dry dock sank, it took with it various containers in which were stored approximately 113,000 gallons of oil. None of the containers were breached, however. Following the incident, the Coast Guard issued a letter informing Guam Industrial that it had to remove the sunken containers holding the oil or face the possibility of fines and strict liability for any contamination to the surrounding waters. Guam Industrial recovered the containers, expending approximately $647,000; no oil ever leaked out of the containers and into the water.

[1004]*1004Guam Industrial then filed a claim under the Hull and Machinery Policy with Zurich and Starr. The insurers denied the claim on the basis of the breach of the requirement to obtain Navy Certification.

Guam Industrial also filed a claim with Zurich under the Ocean Marine Policy. That policy generally covered “all sums which the insured shall become legally obligated to pay and shall have damages because of ... [property damage.” The policy also contained a “Pollution Exclusion Clause,” which generally excluded coverage for any damages caused by the “actual or potential discharge” of pollutants. The scope of this exclusion was narrowed by an endorsement that was attached to the policy (“Endorsement No. 10”). Together, the exclusion and the endorsement specified that the policy would cover the costs of any damage caused by “the discharge, dispersal, release, or escape” of any pollutants into the environment, provided the discharge was accidental rather than intentional. Zurich denied the claim because no actual discharge of pollutants had occurred.

After the denial of both claims, Guam Industrial brought this suit in the District of Guam, invoking diversity jurisdiction, against Zurich and Starr, seeking to recover on both policies. The district court granted summary judgment in favor of Zurich and Starr. It concluded that the Hull and Machinery Policy did not provide coverage because Guam Industrial had breached the Navy Certification warranty. The court rejected Guam Industrial’s position that Zurich and Starr had to demonstrate that the breach caused the sinking of the dry dock, because applicable law required strict compliance with certification requirements.

The district court further concluded that the Ocean Marine Policy coverage for property damage caused by pollution was never triggered because the oil never left the containers. There was no “discharge, dispersal, release, or escape” of any pollutant into the waters of Apra Harbor, and hence no property damage within the terms of the policy.

Guam Industrial now appeals.

HULL AND MACHINERY POLICY AND THE LACK OF CERTIFICATION

The Hull and Machinery Policy covering damage to the dry dock was underwritten by both Zurich and Starr, and required, as a condition of coverage, that Guam Industrial obtain and maintain Navy Certification for the dry dock. Guam Industrial breached the warranty because the dry dock was never Navy Certified. Deciding whether the insurance policy mandates strict compliance with its requirement of Navy Certification requires interpretation of the policy.

To interpret a marine insurance policy, we usually must first determine whether to apply state or federal law. See Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 313-14, 75 S.Ct. 368, 99 L.Ed. 337 (1955). Generally, courts are to “apply state law unless an established federal rule addresse[s] the issues raised, or there [is] a need for uniformity in admiralty practice.” Yu v. Albany Ins. Co., 281 F.3d 803, 808 (9th Cir.2002). That being said, we do not need to determine whether to apply federal or state law in this instance because both sources of law lead to the same rule: that marine insurance policy warranties are to be strictly construed. The federal rule, if one in fact exists,1 is [1005]*1005that “admiralty law requires the strict construction of express warranties in marine insurance contracts; breach of the express warranty by the insured releases the insurance company from liability even if compliance with the warranty would not have avoided the loss.” See Lexington Ins. Co. v. Cooke’s Seafood, 835 F.2d 1364, 1366 (11th Cir.1988). The state majority rule also provides that express warranties in marine insurance policies should be strictly construed. See Yu, 281 F.3d at 808-09.

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787 F.3d 1001, 2015 A.M.C. 1521, 2015 U.S. App. LEXIS 9045, 2015 WL 3449891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guam-industrial-services-inc-v-zurich-american-insurance-ca9-2015.