Zurich American Ins. Co. v. Accuire, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 2, 2020
• Docket: 19-17274
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ZURICH AMERICAN INSURANCE No. 19-17274 COMPANY OF ILLINOIS, a New York Corporation, D.C. No. 2:18-cv-02065-JAM-AC Plaintiff-Appellee,

v. MEMORANDUM*

ACCUIRE, LLC, a Florida limited liability company,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted October 16, 2020** Pasadena, California

Before: MURGUIA and LEE, Circuit Judges, and KORMAN,*** District Judge.

* 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). *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Zurich American Insurance Company of Illinois (“Zurich”) issued a workers’

compensation policy to the former parent of Accuire, LLC (“Accuire”). Accuire

separated from its parent company and sought a short-term workers’ compensation

policy from Zurich based on the experience modification rating it shared with its

former parent. As payment under that agreement, Zurich charged Accuire an initial

amount, which the parties agree constituted an estimate, subject to adjustment based

on a payroll audit to be completed at the conclusion of the policy period. Shortly

after, the California Workers’ Compensation Insurance Rating Bureau increased

Accuire’s experience modification rating and Zurich issued an endorsement

reflecting this change to Accuire.

Zurich conducted its payroll audit and provided the results to Accuire. Based

on the audit, Zurich demanded payment of an additional premium totaling $491,614.

Accuire refused to pay because, notwithstanding any endorsements or rate changes,

it claimed that Zurich had orally assured Accuire that its rates and costs would

remain the same as they had been under the policy covering its former parent.

Zurich then sued Accuire for breach of contract and moved for summary

judgment. Accuire failed to timely oppose the summary judgment motion under the

district court’s local rules. A week after the local rule deadline passed, Accuire filed

an ex parte application for leave to file a late opposition and attached its proposed

response to the motion. The district court denied the application in a minute order

2 and then granted Zurich’s motion for summary judgment. Accuire appeals.

Accuire argues that it should have been allowed to late file its opposition to

summary judgment. Contrary to Zurich’s contentions, this panel may hear

Accuire’s challenge to the district court’s order denying leave to late file even

though Accuire did not specifically identify this order in its notice of appeal. See

Hall v. City of L.A., 697 F.3d 1059, 1070–71 (9th Cir. 2012). But the district court

did not err in denying Accuire leave to late file.

Accuire asserts that the district court was required to conduct a four-factor

balancing test for “excusable neglect” under Pioneer Investment Services Co. v.

Brunswick Associates Ltd., 507 U.S. 380 (1993), rather than evaluating Accuire’s

application under a “good cause” standard. However, a district court need not

“consider expressly the equitable factors listed in Pioneer” in determining whether

to allow filing after expiration of a deadline under Rule 6(b), particularly where the

movant has simply made a mistake as to the local procedural rules. Comm. for

Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 825 (9th Cir. 1996). Therefore, the

district court’s determination that Accuire failed to show good cause based on a

calendaring error and “technical computer circumstances” was permissible.

The local rule may set an overly strict deadline—two weeks in most cases—

for a respondent to file an opposition to a motion for summary judgment.

Nevertheless, the district court’s order granting summary judgment analyzed and

3 correctly rejected on the merits the defenses raised to enforcement of the contract.

Specifically, it held that under California law, Accuire’s parol evidence of prior

assurances about rates and costs is inadmissible to contradict the terms of a fully

integrated agreement like the one between Accuire and Zurich. See Masterson v.

Sine, 436 P.2d 561, 563 (Cal. 1968). Moreover, it found similarly meritless

Accuire’s claims that it cannot be bound because its representative failed to read the

contract before agreeing to it, or that Zurich improperly modified rates by

endorsement. See Vernon v. Drexel Burnham & Co., 125 Cal. Rptr. 147, 151–52

(Cal. Ct. App. 1975). In sum, none of the purported disputes of material fact offered

by Accuire on appeal precluded the district court from granting summary judgment.

AFFIRMED.