Kiernan v. Zurich Companies

150 F.3d 1120, 1998 WL 420313
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 28, 1998
DocketNo. 96-56854
StatusPublished
Cited by12 cases

This text of 150 F.3d 1120 (Kiernan v. Zurich Companies) 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
Kiernan v. Zurich Companies, 150 F.3d 1120, 1998 WL 420313 (9th Cir. 1998).

Opinion

PREGERSON, Circuit Judge:

Plaintiff Christopher Kiernan suffered bodily injuries while parasailing from a boat owned by Capistrano Parasail, Inc.1 Kiernan sued Capistrano for damages. In 1994, a jury returned a verdict in Kiernan’s favor for $100,000. His costs of suit were $11,038.72. Capistrano failed to pay the judgment. Kier-nan then filed an action in state court against Capistrano’s insurer, Zurich Companies, to recover on the judgment. Kiernan brought his action against Zurich under California Insurance Code § 11580(b)(2), which permits a judgment creditor to bring a direct action against an insurer to collect a judgment awarded against an insured. The action was removed to federal court on grounds of diversity.

The parties agreed to a stipulated trial on the issue whether Kiernan could bring a direct action against Zurich . under § 11580(b)(2). The district court found that Kiernan could bring such an action and entered judgment for Kiernan in the amount of $136,412.77, which included additional costs and interest. Zurich appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. KIERNAN’S RIGHT TO DIRECTLY SUE ZURICH

Disputes arising under marine insurance contracts are governed by federal admiralty law when an established federal rule addresses the issues raised. Suma Fruit Int'l v. Albany Ins. Co., 122 F.3d 34, 35 (9th Cir.1997). In the absence of an established federal rule, a federal court may, in certain circumstances, fashion one. Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 314, 75 S.Ct. 368, 99 L.Ed. 337 (1955) (court declines to fashion a federal admiralty rule). State law governs disputes arising under marine insurance contracts only “in the absence of a federal statute, a judicially fashioned admiralty rule, or a need for uniformity in admiralty practice....” Suma, 122 F.3d at 35 (quoting Bohemia, Inc. v. Home Ins. Co., 725 F.2d 506, 510 (9th Cir.1984)).

A. Existence of a Federal Admiralty Rule

Defendants assert that an established federal admiralty rule prohibits an injured third party, such as Kiernan, from bringing a direct action against an indemnity insurer. The Sixth Circuit, however, recently addressed this question and found that “no clearly articulated federal principle either permits or prohibits the right of direct action” by a third party against an indemnity insurer. Aasma v. American S.S. Owners Mut. Protection and Indem. Ass’n, Inc., 95 F.3d 400, 403-404 (6th Cir.1996). Moreover, the Eleventh Circuit has stated that “[fjederal admiralty law neither authorizes nor forecloses a third party’s right to directly sue an insurance company.” Morewitz v. West of [1122]*1122England, 62 F.3d 1356, 1362 (11th Cir.1995) (citation omitted).

We have found no federal maritime authority that would prohibit a third party whose judgment against an insured is not satisfied from directly suing the insured’s indemnity insurer.

B. Creating a Federal Admiralty Rule

Both the Supreme Court and this court disfavor the judicial creation of marine insurance rules:

It has been authoritatively recognized that, just as Congress has abstained from regulating insurance, so should the federal courts. The Supreme Court has declared: “We, like Congress, leave the regulation of marine insurance where it has been-with the States.” The Supreme Court has noted that the requirement of a uniform federal maritime law “still leaves the states a wide scope.”

Bank of San Pedro v. Forbes Westar, Inc., 53 F.3d 273, 275 (9th Cir.1995) (citation omitted) (quoting Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 321, 75 S.Ct. 368, 99 L.Ed. 337 (1955)). In Wilburn Boat, the Supreme Court explained that “[t]he whole judicial and legislative history of insurance regulation in the United States warns us against the judicial creation of admiralty rules to govern marine policy terms.” Wilburn Boat, 348 U.S. at 316, 75 S.Ct. 368. Consequently, the Court preferred to leave the regulation of marine insurance contracts to the states.

In Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485 (11th Cir.1986), the Eleventh Circuit similarly faced the question whether it should fashion a federal admiralty rule that would prohibit third parties from bringing a direct action against an insurer despite the fact that Florida law permitted such actions. Id. at 1489. The court declined to fashion such a rule, explaining that Florida’s law that permitted a direct action did not affect any strong admiralty interest:

While [the direct action statute] confers upon an injured party a substantive right which becomes vested at the moment of the injury, it is not a right essentially maritime in character, nor one peculiar to admiralty or maritime jurisdiction, but is one which applies alike to all contracts of public liability insurance, regardless of whether the injury occurs ashore or afloat. There is nothing in it which undertakes to change the substantive admiralty law, nor does it undertake to deal with a remedy in courts of admiralty. The statute provides only an additional and cumulative remedy at law in the enforcement of obligations of indemnity voluntarily and lawfully assumed by the insurer. Thus the statute does not conflict with any feature of substantive admiralty law, nor with any remedy peculiar to admiralty jurisdiction.

Id. at 1491 (citing Cushing v. Maryland Casualty, 198 F.2d 536, 539 (5th Cir.1952) (emphasis added)); see also Morewitz, 62 F.3d at 1362-63 (permitting third party to bring direct action against indemnity insurer pursuant to Alabama statute allowing direct actions against insurers).

Notably, although the Sixth Circuit decided to fashion a uniform admiralty rule in Aasma, it did so under circumstances “differing] markedly from Wilburn Boat,” which “involved a single houseboat on a small lake.” 95 F.3d at 404. In Aasma, the Sixth Circuit recognized that contracts of marine insurance are generally regulated by state law, see id. at 403, but concluded that the uniquely maritime context of the controversy before it required the application of a federal admiralty rule. The rule in that case was expressly narrow and limited to the facts before the court. Id. at 404. The case involved a large class of mariner plaintiffs who sued for exposure to asbestos while working in international transport on the high seas.

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Kieran v. Zurich Companies
150 F.3d 1120 (Ninth Circuit, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
150 F.3d 1120, 1998 WL 420313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiernan-v-zurich-companies-ca9-1998.