Todd Albright v. Alliant Specialty Ins. Serv.

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 2019
• Docket: 18-35770
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 30 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TODD ALBRIGHT, an individual, No. 18-35770

Plaintiff-Appellant, D.C. No. 3:17-cv-05062-RBL

v. MEMORANDUM* ALLIANT SPECIALTY INSURANCE SERVICES, INC., a California Corporation doing business in Washington; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Submitted August 28, 2019** Seattle, Washington

Before: HAWKINS, McKEOWN, and BYBEE, Circuit Judges.

In 2016, Alliant Insurance Services, Inc. and its subsidiary, Alliant Specialty

Insurance Services, Inc., (together, “Alliant”) were negotiating contracts, called “co-

broker agreements,” with Arthur J. Gallagher & Co. (“AJG”), under which two

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). brokerages that AJG had recently acquired would sell and service Alliant’s insurance

products. An Alliant employee circulated a draft co-broker agreement containing a

term that excluded one of AJG’s brokers, Todd Albright, from performing any work

under the agreement. Albright sued Alliant, claiming the term defamed him in

several states, tortiously interfered with his business expectancy, and negligently

injured him. The district court granted summary judgment in Alliant’s favor and

denied Albright’s motion for partial summary judgment on choice of law. It also

denied Albright’s motion for reconsideration. Albright appeals these rulings. We

have jurisdiction under 28 U.S.C. § 1291 and affirm.

The district court did not err by applying Washington law to Albright’s

defamation claims and denying Albright’s motion for partial summary judgment on

choice of law. There is no outcome-determinative difference between the law of

Washington and the laws of California, Illinois, and Oklahoma as they relate to the

resolution of Albright’s defamation claims. All four states recognize a conditional

“common interest” privilege for otherwise-defamatory communications that is lost

when the declarant is motivated by malice or otherwise abuses the privilege. See

Moe v. Wise, 989 P.2d 1148, 1154–58 (Wash. Ct. App. 1999); see also Taus v.

Loftus, 151 P.3d 1185, 1209–10 (Cal. 2007); Kuwik v. Starmark Star Marketing and

Amin., Inc., 619 N.E.2d 129, 134–36 (Ill. 1993); Trice v. Burress, 137 P.3d 1253,

1260 n.15 (Okla. Civ. App. 2006); Thornton v. Holdenvill Gen. Hosp., 36 P.3d 456,

2 461 (Okla. Civ. App. 2001). Given the absence of a “real” conflict between the

relevant laws, the district court properly applied Washington law and denied

Albright’s motion for partial summary judgment. See Seizer v. Sessions, 940 P.2d

261, 264 (Wash. 1997).

Nor was there error in granting summary judgment in Alliant’s favor on

Albright’s defamation claims. The allegedly defamatory co-broker agreements were

communicated in furtherance of a “legitimate business relationship” between Alliant

and AJG, and thus were covered by the common interest privilege. See Corbin v.

Madison, 529 P.2d 1145, 1151 (Wash. Ct. App. 1974). Albright’s evidence does not

create a genuine issue of material fact as to whether Robert Shearer, the author of

the co-broker agreement, was motivated by malice when he drafted and published

the relevant language.

There was also no error in granting summary judgment in Alliant’s favor on

Albright’s tortious interference claims. Albright presented insufficient evidence that

Alliant “interfered for an improper purpose or used improper means” to exclude him

from a business expectancy. Leingang v. Pierce Cnty. Med. Bureau, Inc., 930 P.2d

288, 300 (Wash. 1997).

There was no abuse of discretion in denying Albright’s motion for

reconsideration. Albright fails to show clear error in the district court’s underlying

ruling on the motions for summary judgment, and the newly discovered evidence he

3 presented to the district court did not create an issue of material fact as to the

existence of malice. Carroll v. Nakatani, 342 F.3d 934, 940, 945 (9th Cir. 2003).

AFFIRMED.