Old Republic General Insurance v. Motorists Mutual Insurance Co.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2020
• Docket: 19-15805
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 15 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WEBCOR CONSTRUCTION, LP; No. 19-15805 ARCHITECTURAL GLASS AND ALUMINUM CO., INC., D.C. No. 4:17-cv-02220-YGR

Plaintiffs, MEMORANDUM* v.

ZURICH AMERICAN INSURANCE COMPANY; et al.,

Defendants,

-------------------------------------------------- And Third Party Complaint

OLD REPUBLIC GENERAL INSURANCE CORPORATION,

Third-Party Plaintiff- Appellant,

v.

MOTORISTS MUTUAL INSURANCE COMPANY,

Third-Party Defendant- Appellee.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted March 26, 2020** San Francisco, California

Before: WALLACE, GRABER, and COLLINS, Circuit Judges.

Appellant Old Republic General Insurance Corporation ("Old Republic")

timely appeals from the district court’s summary judgment in favor of Appellee

Motorists Mutual Insurance Company ("Motorists"). We have jurisdiction under

28 U.S.C. § 1291. On de novo review, Hyundai Motor Am. v. Nat’l Union Fire

Ins. Co., 600 F.3d 1092, 1095 (9th Cir. 2010), we affirm.

The district court did not err in concluding that, in light of Exclusion (k) of

the Motorists insurance policy, there was no potential for coverage from the outset

of the underlying litigation and, therefore, no duty to defend. See Anthem Elecs.,

Inc. v. Pac. Emp’rs Ins. Co., 302 F.3d 1049, 1056 (9th Cir. 2002) (stating the

standard on summary judgment for determining an insurer’s duty to defend under

California law). Old Republic did not contend below, and has not contended on

appeal, that the underlying complaint included factual allegations of damage to any

property other than the insulated glass units (IGUs) themselves and the

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 curtainwalls into which the IGUs were installed. Because the Named Insured

under the Motorists policy—Midwest Curtainwalls Inc. ("Midwest")—received the

IGUs and installed them into the curtainwalls, the only property damage alleged in

the complaint was excluded under the plain text of Exclusion (k). That exclusion

precludes coverage for "‘[p]roperty damage’ to ‘your product’ arising out of it or

any part of it." The insurance policy defines "your product," in part, to include

"[a]ny goods or products, other than real property, manufactured, sold, handled,

distributed or disposed of by" the Named Insured, i.e., Midwest.

Old Republic contends only that the IGUs do not count as Midwest’s

products, but the district court correctly rejected this contention. Although

manufactured by Viracon, the IGUs fall within the "your product" exclusion

because they were "handled" by Midwest. See Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/dictionary/handle (last visited Mar.

24, 2020) (defining "handle" as "to act on or perform a required function with

regard to"); The American Heritage Dictionary of the English Language,

https://ahdictionary.com/word/search.html?q=handle (last visited Mar. 24, 2020)

(defining "handle" as "[t]o touch, lift, or hold with the hands"); Oxford English

Dictionary, https://www.oed.com/view/Entry/83880?rskey=HdVxHz&

3 result=3#eid (last visited Mar. 24, 2020) (defining "handle" as "[t]o manipulate" or

"[t]o touch or feel with the hand or hands"). After Viracon manufactured the

IGUs, they were delivered to Midwest to install into the frames that it had

designed. The plain meaning of the exclusion therefore unambiguously precludes

coverage. Accordingly, Motorists did not owe a duty to defend its additional

insureds.

AFFIRMED.