Federal Insurance Company v. National Union Fire Insurance , 637 F. App'x 340 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FEDERAL INSURANCE COMPANY, a No. 14-55078
corporation,
D.C. No. 2:13-cv-02196-RGK-
Plaintiff - Appellant, MAN
v.
MEMORANDUM*
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA, a
corporation; CENTURY SURETY
COMPANY, a corporation,
Defendants-cross-defendants-
cross-claimants - Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted February 8, 2016
Pasadena, California
Before: KLEINFELD, McKEOWN, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Federal Insurance Company appeals the district court’s decision granting
summary judgment to National Union Fire Insurance Company of Pittsburgh and
Century Surety Company. We have jurisdiction under 28 U.S.C. § 1291.
Federal did not raise a genuine issue of material fact that the claims and
allegations asserted in the Department of Justice’s complaint against the Sterlings
(United States v. Donald Sterling, et al., No. 2:06-cv-04885-DSF (C.D. Cal. 2006))
(the Sterling complaint) gave rise to potential liability for a disparate impact or
negligence claim. The Sterling complaint did not allege discrimination arising
from a neutral practice. See Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive
Comtys. Project, Inc., 135 S. Ct. 2507, 2523 (2015). It did not allege negligent
supervision, failure to establish appropriate standards, or failure to exercise
sufficient control. Nor did facts extrinsic to the complaint that were known to
National Union and Century at the time the suit was tendered to the insurers give
rise to any such claim. See Scottsdale Ins. Co. v. MV Transp., 36 Cal. 4th 643, 655
(2005).
Further, Federal did not raise a genuine issue of material fact that the
Sterling complaint gave rise to potential liability for a vicarious liability claim.
The Sterling complaint claimed discrimination arising from intentional actions
taken by the Sterlings or at their direction, and did not include claims for vicarious
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liability arising from the actions of a person who was not insured under the
National Union policy. See Minkler v. Safeco Ins. Co. of Am., 49 Cal. 4th 315, 318
(2010); Meyer v. Holley, 537 U.S. 280, 285 (2003). Century’s policy covered
liability only if the injury was caused by an “occurrence,” defined as “an accident,”
and so did not cover vicarious liability based on another person’s intentional
action. Dyer v. Northbrook Prop. & Cas. Ins. Co., 210 Cal. App. 3d 1540, 1551
(1989).
Because the Sterling complaint did not give rise to any liability potentially
covered by the National Union or Century policies, National Union and Century
did not have a duty to defend the Sterling action. The district court therefore did
not err in granting summary judgment to National Union and Century.
AFFIRMED.
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