Greenwich Insurance Company v. Media Breakway, LLC , 417 F. App'x 642 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREENWICH INSURANCE No. 09-56347
COMPANY, a Delaware corporation,
D.C. No. 2:08-cv-00937-CAS-CT
Plaintiff–Appellee,
INDIAN HARBOR INSURANCE MEMORANDUM *
COMPANY, a Delaware corporation
Counter-defendant–Appellee.
v.
MEDIA BREAKAWAY, LLC, a Nevada
limited liability company; and SCOTT
RICHTER, an individual,
Defendants–Appellants,
Appeal from the United States District Court
for the Central District of California
Christina Snyder, District Judge, Presiding
Argued and Submitted February 16, 2011
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KLEINFELD, LUCERO,** and GRABER, Circuit Judges.
The parties are familiar with the facts of this case, which we will not recite.
We need not reach the propriety of the district court’s conclusion that the
arbitration award was entitled to collateral estoppel effect. Regardless of whether
full preclusion applies, the award and the underlying complaint provide a sufficient
record to determine if summary judgment was appropriate. See Horace Mann Ins.
Co. v. Barbara B., 846 P.2d 792, 795-96 (Cal. 1993) (determination as to the duty
to defend usually may be made based on a comparison of the terms of the policy
and the allegations in the underlying complaint).
Greenwich had neither a duty to defend nor a duty to indemnify Media
Breakaway or Richter. Greenwich’s policy contained two broadly worded
exclusions precluding coverage of intentional conduct or conduct resulting in ill-
gotten profits. All allegations in the MySpace complaint, and all findings of
liability in the arbitration award, involved intentional conduct and wrongful
**
The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
2
profits.1 Neither the complaint nor the award suggests “any potential for liability
under the policy.” Horace Mann, 846 P.2d at 797. Likewise, the Indian Harbor
policy was subject to similar exclusions and did not provide coverage. We
therefore need not reach the question of whether California Insurance Code section
533 barred coverage.
Because the MySpace action did not give rise to a duty to defend, Greenwich
and Indian Harbor are entitled to reimbursement based on reservations of rights in
the Greenwich policy and Indian Harbor correspondence. See Scottsdale Ins. Co.
v. MV Transp., 115 P.3d 460, 467 (Cal. 2005).
AFFIRMED.
1
Although the district court opined that the award made “some passing
reference to some conduct that could be considered negligent,” we review the grant
of summary judgment de novo, see Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.
2000) (en banc), and conclude the award involved no covered conduct.
3