Banjosa Hospitality, LLC v. Hiscox, Inc. ( 2019 )


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  •                                                                            FILED
    NOT FOR PUBLICATION
    DEC 19 2019
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    BANJOSA HOSPITALITY, LLC, a                      No. 18-35905
    Montana limited liability company,
    D.C. No. 1:17-cv-00152-TJC
    Plaintiff-Appellant,
    v.                                              MEMORANDUM*
    HISCOX, INC.,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the District of Montana
    Timothy J. Cavan, Magistrate Judge, Presiding
    Submitted December 12, 2019**
    Seattle, Washington
    Before: GRABER and BERZON, Circuit Judges, and EZRA,*** District Judge.
    Plaintiff Banjosa Hospitality, LLC, timely appeals the district court’s grant
    of summary judgment for Defendant Hiscox, Inc., in this diversity action raising
    *
    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. Fed. R. App. P. 34(a)(2).
    ***
    The Honorable David A. Ezra, United States District Judge for the
    District of Hawaii, sitting by designation.
    claims concerning Montana insurance law. Reviewing de novo, Davis v. Guam,
    
    932 F.3d 822
    , 829 (9th Cir. 2019), we affirm.
    1. The district court correctly held that the insured did not report the claim
    within the time allowed by the claims-made-and-reported insurance policy.
    Because the question of coverage "is readily determined from the insurance policy
    in question and does not challenge or depend on the veracity of the allegations in
    the underlying complaint," we must assess coverage. Emp’rs Mut. Cas. Co. v.
    Estate of Buckles, 
    443 P.3d 534
    , 538 (Mont. 2019). For that reason, the Montana
    Supreme Court’s decision in Tidyman’s Mgmt. Serv., Inc. v. Davis, 
    330 P.3d 1139
    (Mont. 2014), does not require a different approach.
    The insured reported the claim to Hiscox in May 2014 but the reporting
    condition clearly required reporting no later than January 2014; accordingly, the
    insured reported the claim too late. The reporting condition is clear: It required
    that the insured report the claim by a certain time from when "a Claim is first made
    against any Insured." (Emphasis added.) If, as Banjosa asserts, the claim was first
    made in emails in 2013, then the reporting of the claim was too late, because the
    reporting deadline was January 2014 at the latest.
    In the alternative, if the claim was first made when the pertinent complaint
    was filed in 2014, then the policy did not cover the claim because it was not
    2
    "made," as clearly required by the policy, within the policy period, and the
    reporting requirement has no relevance. The policy defines a "claim" as, in
    relevant part, "any notice received by the Insured of a demand for Damages or for
    non-monetary relief." The two emails cited by Banjosa threaten possible future
    legal action against the insured (or third parties), but the emails do not contain a
    present demand against the insured for damages or non-monetary relief. Under
    this alternative approach, because the claim was not made until 2014 and the policy
    period expired in 2013, the claim was made too late, so there was no coverage.
    Either way, the policy clearly excludes coverage.
    2. The "notice-prejudice" rule announced in Estate of Gleason v. Cent.
    United Life Ins. Co., 
    350 P.3d 349
    (Mont. 2015), and Atlantic Cas. Ins. Co. v.
    Greytak, 
    350 P.3d 63
    (Mont. 2015), does not apply to claims-made-and-reported
    policies. See, e.g., Safeco Title Ins. Co. v. Gannon, 
    774 P.2d 30
    , 33–36 (Wash. Ct.
    App. 1989) (persuasively explaining why the notice-prejudice rule does not apply
    to claims-made-and-reported policies under Washington law). Banjosa has not
    pointed to a single jurisdiction that has applied the rule to claims-made-and-
    reported policies and, "[n]ationwide," other jurisdictions "uniform[ly]" have
    rejected the argument. Sherwood Brands, Inc. v. Great Am. Ins. Co., 
    13 A.3d 1268
    , 1283 (Ct. App. Md. 2011); e.g., Pac. Emp’rs Ins. Co. v. Superior Ct, 270
    
    3 Cal. Rptr. 779
    , 784 (Ct. App. 1990); 
    Gannon, 774 P.2d at 33
    –36; Anderson v. Aul,
    
    862 N.W.2d 304
    , 317 (Wisc. 2015). We see nothing in Montana law suggesting
    that the Montana Supreme Court would reach the opposite conclusion.
    3. The insured’s reasonable expectations do not require coverage here.
    "[T]he reasonable expectations doctrine is inapplicable where the terms of the
    policy at issue clearly demonstrate an intent to exclude coverage." Fisher ex rel.
    McCartney v. State Farm Mut. Auto. Ins. Co., 
    305 P.3d 861
    , 867 (Mont. 2013)
    (citation omitted). The insured could not reasonably have expected coverage under
    a claims-made-and-reported policy for a claim that was neither made nor reported
    in time.
    AFFIRMED.
    4
    

Document Info

Docket Number: 18-35905

Filed Date: 12/19/2019

Precedential Status: Non-Precedential

Modified Date: 12/19/2019