PEMCO MUTUAL INSURANCE COMPANY V. SEAN FOLEY

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 22, 2022
• Docket: 21-35725
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PEMCO MUTUAL INSURANCE No. 21-35725 COMPANY, D.C. No. 3:20-cv-00590-HZ Plaintiff-Appellee,

v. MEMORANDUM*

SEAN T. FOLEY,

Defendant-Appellant,

and

KENDRA CASPER; et al.,

Defendants.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, Chief District Judge, Presiding

Argued and Submitted October 6, 2022 Portland, Oregon

Before: OWENS and MILLER, Circuit Judges, and PREGERSON,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. Sean Foley appeals the district court’s summary judgment for Appellee

Pemco Mutual Insurance Company (“Pemco”), granted in relevant part on the

ground that the Homeowner Policy supplied by Pemco (“the Policy”) does not

cover the accident caused by an ATV owned by one of the insureds. Coverage

under the Policy turns on whether the term “an insured” includes an insured other

than the insured seeking coverage. If it does, the Motor Vehicle Exclusion in the

Policy applies and the Policy does not cover the accident. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

Under Oregon law, an allegedly ambiguous term in an insurance policy can

only be construed against the insurer after application of the analytical framework

set forth in Hoffman Construction Co. v. Fred S. James & Co., 313 Or. 464 (1992).

Alexander Mfg., Inc. Emp. Stock Ownership Plan & Tr. v. Illinois Union Ins. Co.,

560 F.3d 984, 986-87 (9th Cir. 2009). Under Hoffman, a disputed term must be

susceptible to multiple plausible interpretations on its face before a court can find

the term ambiguous. Hoffman, 313 Or. at 470. In some cases, it may not be

difficult to construct multiple plausible interpretations of a term. See id. At the

same time, “[i]t is not permissible to apply a strained meaning to unambiguous

language to create an ambiguity where none exists . . . .” Mortg. Bancorporation

v. N.H. Ins. Co., 67 Or. App. 261, 264 (1984). Indeed, if a policy explicitly defines

the disputed term, courts must apply that definition. Holloway v. Republic Indem.

2 Co. of Am., 341 Or. 642, 650 (2006).

Here, the disputed term is “an insured.” The Policy explicitly provides that

“when the word ‘an’ immediately precedes the word ‘insured,’ the words ‘an

insured’ together mean one or more insureds.” The phrase “one or more

insureds,” in turn, cannot plausibly be read in isolation to mean the particular

insured seeking coverage, as Foley contends. Even were we to look to the plain

meaning of “an insured,” the term does not encompass any concept of particularity

or specificity, and our role is “not to insert what has been omitted.” Or. Rev. Stat.

§ 42.230. Accordingly, we do not “resort to various aids of interpretation” that

might otherwise be necessary, and “our interpretive inquiry is at an end.”

Groshong v. Mut. of Enumclaw Ins. Co., 329 Or. 303, 307 (1999); see also

Holloway, 341 Or. at 650. Because the disputed term is unambiguous, it cannot be

construed against the insurer. The Motor Vehicle Exclusion therefore applies and

there is no coverage under the Policy, so we affirm summary judgment for Pemco.

AFFIRMED.