Harris Thermal Transfer Produc v. James River Insurance Company , 457 F. App'x 660 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARRIS THERMAL TRANSFER No. 10-35712
PRODUCTS, INC.,
D.C. No. 3:09-cv-00718-PK
Plaintiff - Appellant,
v. MEMORANDUM*
JAMES RIVER INSURANCE
COMPANY,
Defendant - Appellee.
HARRIS THERMAL TRANSFER No. 10-35749
PRODUCTS, INC.,
D.C. No. 3:09-cv-00718-PK
Plaintiff - Appellee,
v.
JAMES RIVER INSURANCE
COMPANY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Paul Papak, Magistrate Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted October 13, 2011
Portland, Oregon
Before: BERZON and N.R. SMITH, Circuit Judges, and SMITH, District Judge.**
Harris Thermal Transfer Products, Inc. (Harris Thermal) and James River
Insurance Company (James River) cross-appeal from the district court’s grant of
summary judgment in favor of James River and the district court’s denial of Harris
Thermal’s motion for summary judgment. We review de novo a district court’s
ruling on cross-motions for summary judgment. Redevelopment Agency of City of
Stockton v. BNSF Ry. Co., 643 F.3d 668, 672 (9th Cir. 2011).
From the allegations in Delta-T’s counterclaims, it is plain that Delta-T’s
claims “directly . . . [arose] out of or result[ed] from the design or manufacture of
any goods or products . . . sold or supplied by [Harris Thermal].” Thus, these
claims fall squarely within the coverage exclusion set forth in Section III(j) of the
policy that Harris Thermal held with James River. Further, Delta-T’s claims are,
as alleged, attributable to “faulty workmanship, construction[,] or work not in
accordance with [design specifications].” Thus, Delta-T’s claims also squarely fall
within the coverage exclusion set forth in Section III(8). Either exclusion is
sufficient to negate James River’s duty to defend. Accordingly, with respect to the
**
The Honorable William E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.
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duty to defend claim, we affirm the district court’s grant of summary judgment in
favor of James River and affirm its denial of Harris Thermal’s cross-motion.
Moreover, we affirm the district court’s sua sponte dismissal of the
indemnity claim because the underlying action plainly is not covered by the policy
in light of these two coverage exclusions. As we have been informed that the
underlying action has settled, there is no further information to be gleaned that
could give rise to a duty to indemnify under this policy. See Ledford v. Gutoski,
877 P.2d 80, 84 (Or. 1994) (noting that, where an insurer does not have a duty to
defend based on the facts alleged in the complaint, it may still be possible to
demonstrate a duty to indemnify based on the facts proven at trial); see also Weber
v. Chicago Title Ins. Co. of Oregon, 7 P.3d 714, 716 (Or. Ct. App. 2000) (noting
that an insurer’s duty to defend generally is broader than its duty to indemnify).
Because we affirm the district court on these grounds, we do not reach the
other issues raised by Harris Thermal on appeal, nor those raised by James River in
its cross-appeal.
AFFIRMED.
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