Onair Streaming Networks, Inc. v. Federal Insurance

127 F. App'x 935

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 8, 2005
• Docket: No. 03-56421
• Status: Published

Opinion

MEMORANDUM

***

Plaintiff-appellant OnAir Streaming Networks appeals the district court’s order granting summary judgment in favor of defendant Federal Insurance Company. We affirm the district court’s order. The insurance policy under which OnAir seeks coverage excludes the claimed damage from coverage through two unambiguous exclusions — “Planning, Design, Materials or Maintenance” and “Business Errors.” See, e.g., Tzung v. State Farm Fire & Cas. Co., 873 F.2d 1338, 1340-41 (9th Cir.1989). OnAir cannot bring a claim on behalf of Second & Main Associates as a third party because this policy does not clearly contemplate that a third party is intended to be a beneficiary. Harper v. Wausau Ins. Co., 56 Cal.App.4th 1079, 66 Cal.Rptr.2d 64, 68 (1997). Federal met its duty to defend OnAir. OnAir’s affirmative complaint could not potentially lead to liability under the policy; the duty to defend therefore did not arise until the cross complaint was filed. Pension Trust Fund for Operating Eng’rs v. Fed. Ins. Co., 307 F.3d 944, 949 (9th Cir.2002). Federal did not act in bad faith because there was no coverage under the policy. Waller v. Truck Ins. Exch., 11 Cal.4th 1, 44 Cal.Rptr.2d 370, 900 P.2d 619, 639 (1995).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.