Dietz International Public Adjusters of California, Inc. v. Evanston Insurance , 515 F. App'x 680 ( 2013 )

FILED
NOT FOR PUBLICATION APR 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DIETZ INTERNATIONAL PUBLIC No. 11-56267
ADJUSTERS OF CALIFORNIA, INC., a
California corporation, D.C. No. 2:09-cv-06662-MMM-E
Plaintiff - Appellant,
MEMORANDUM *
v.
EVANSTON INSURANCE COMPANY,
an Illinois corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted April 11, 2013 **
Pasadena, California
Before: BERZON, TALLMAN, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiff Dietz International Public Adjusters of California, Inc. appeals the
district court’s grant of summary judgment to defendant Evanston Insurance Co. in
Dietz’s diversity action seeking reimbursement of payments made to settle claims
against it. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Hansen v. Dep’t of Treasury, 528 F.3d 597, 600 (9th Cir. 2007), and we affirm.
The statutory language of Section 554 of the California Insurance Code is
unambiguous and does not preclude Evanston from enforcing a provision in
Dietz’s professional liability insurance policy that bars Dietz from making
voluntary payments to settle claims against it. See Insua v. Scottsdale Ins. Co., 104
Cal. App. 4th 737, 743 (2002), review denied, No. S112788 (Feb 25, 2003)
(holding that insurer could assert voluntary payments defense even when it failed
to promptly assert a late notice defense).
On its face, Section 554 provides only for the waiver of an insurer’s late
notice defense, a substantively different defense than the voluntary payments
defense that Evanston asserted at summary judgment. See id. Because Dietz failed
to demonstrate that Evanston intentionally relinquished its right to raise its
voluntary payments defense, Evanston has not waived that defense under
California law. See Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1, 31 (1995).
AFFIRMED.
2