Philadelphia Indemnity Insurance v. Thompson & Co. Insurance Services, Inc.

26 F. App'x 770

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 6, 2002
• Docket: No. 00-56647; D.C. No. CV-00-01372-TJH
• Status: Published

Opinion

MEMORANDUM

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Thompson & Company Insurance Services, Inc. (“Thompson”), an insurance brokerage firm, appeals the district court’s summary judgment for the Philadelphia Indemnity Insurance Company (“Philadelphia”) in its action seeking a declaration of rights under an Insurance Agents and Brokers Professional Liability Policy (“the Policy”) which Philadelphia had issued to Thompson. We affirm.

Philadelphia has eliminated any and all possibility of coverage under the terms of the policy because both underlying actions are “claims for fees,” which are expressly excluded from coverage. See Tana v. Professionals Prototype I Ins. Co., 47 Cal. App.4th 1612, 55 Cal.Rptr.2d 160, 163 (Ct. App.1996).

Thompson’s claimed “reasonable expectation” of coverage is not relevant because the language of the policy is clear and unambiguous. American Star Ins. Co. v. Ins. Co. of the West, 232 Cal.App.3d 1320, 284 Cal.Rptr. 45, 52 (Ct.App.1991).

The fact that the underlying actions contain claims for negligent misrepresentation does not give rise to a duty to defend both because California law considers negligent misrepresentation to be purposeful rather than accidental for the purpose of insurance coverage, Chatton v. Nat’l Union Fire Ins. Co., 10 Cal.App.4th 846, 13 Cal. Rptr.2d 318, 328 (Ct.App.1992), and because the underlying actions are “claims for fees,” which are excluded from coverage regardless of whether they allege negligence.

Thompson has failed to put forth sufficient evidence to raise any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is no evidence that Philadelphia has waived its right to deny coverage. Waller v. Truck Ins. Exch., Inc., 11 Cal.4th 1, 44 Cal.Rptr.2d 370, 900 P.2d 619, 636 (Cal.1995). Philadelphia is not estopped from denying coverage because Thompson has made no showing of detrimental reliance on Philadelphia’s actions. Id. at 638.

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 9th Cir. R. 36-3.