James Gordon, Jr. v. Commonwealth Marketing Group I

494 F. App'x 807

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 17, 2012
• Docket: 11-35877
• Status: Unpublished

Opinion

MEMORANDUM **

Third-party Defendants-Appellants IMG Associates and Impulse Marketing Group, Inc. (collectively, IMG), appeal the district court’s summary judgment in favor of Defendant-Third-party Plaintiff, Commonwealth Marketing Group, Inc. (Commonwealth) under the parties’ Marketing Service Agreement (Agreement), which is governed by Georgia law. As the facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our disposition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo a grant of summary judgment. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). Under Georgia law, the duty to defend is broader than the duty to indemnify. Shafe v. Am. States Ins. Co., 288 Ga.App. 315, 653 S.E.2d 870, 873 (2007). The duty to defend arises upon the allegation of statutory violations; the merit of those claims is irrelevant. Penn-America Ins. Co. v. Disabled Am. Veterans Inc., 224 Ga.App. 557, 481 S.E.2d 850, 852 (1997), affd 268 Ga. 450, 490 S.E.2d 372 (1997). The district court granted summary judgment in favor of Commonwealth because it found that IMG breached its contractual duty to defend Commonwealth against the claims brought by James Samuel Gordon, Jr. (Gordon) under the CAN-SPAM Act. We agree. Clause 14(a) of the Agreement provides expressly that IMG “shall indemnify, defend, ... and hold CMG and its officers, directors, shareholders, agents, affiliates and assigns ... harmless at all times ... from and against and in respect of, any liability, claim, deficiency, loss, damage, penalty or injury ... arising from ... any breach by IMG ... of the CAN-SPAM Act of 2008 ...” IMG’s duty to defend thus arose unambiguously when Gordon asserted the CAN-SPAM Act claims against Commonwealth. Penn-America, 490 S.E.2d at 876. IMG urges us to read the Agreement as triggering the duty to defend only in the case of actual breach. We reject IMG’s interpretation because it would “render[ ] ... meaningless” the language in the contract providing that IMG “shall defend ... any ... claim.” Landmark American Ins. Co. v. Khan, 307 Ga.App. 609, 705 S.E.2d 707, 710 (2011) (quoting ALEA London Ltd. v. Woodcock, 286 Ga.App. 572, 649 S.E.2d 740 (2007)) Accordingly, we affirm the decision of the district court granting summary judgment in favor of Commonwealth for the amount of $131,938.93 for the attorneys’ fees and costs incurred in its defense against Gordon’s claims.

AFFIRMED.

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