Old Republic General Insurance v. Motorists Mutual Insurance Co. ( 2020 )

FILED
NOT FOR PUBLICATION
APR 15 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WEBCOR CONSTRUCTION, LP; No. 19-15805
ARCHITECTURAL GLASS AND
ALUMINUM CO., INC., D.C. No. 4:17-cv-02220-YGR
Plaintiffs,
MEMORANDUM*
v.
ZURICH AMERICAN INSURANCE
COMPANY; et al.,
Defendants,
--------------------------------------------------
And Third Party Complaint
OLD REPUBLIC GENERAL
INSURANCE CORPORATION,
Third-Party Plaintiff-
Appellant,
v.
MOTORISTS MUTUAL INSURANCE
COMPANY,
Third-Party Defendant-
Appellee.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted March 26, 2020**
San Francisco, California
Before: WALLACE, GRABER, and COLLINS, Circuit Judges.
Appellant Old Republic General Insurance Corporation ("Old Republic")
timely appeals from the district court’s summary judgment in favor of Appellee
Motorists Mutual Insurance Company ("Motorists"). We have jurisdiction under
28 U.S.C. § 1291. On de novo review, Hyundai Motor Am. v. Nat’l Union Fire
Ins. Co., 600 F.3d 1092, 1095 (9th Cir. 2010), we affirm.
The district court did not err in concluding that, in light of Exclusion (k) of
the Motorists insurance policy, there was no potential for coverage from the outset
of the underlying litigation and, therefore, no duty to defend. See Anthem Elecs.,
Inc. v. Pac. Emp’rs Ins. Co., 302 F.3d 1049, 1056 (9th Cir. 2002) (stating the
standard on summary judgment for determining an insurer’s duty to defend under
California law). Old Republic did not contend below, and has not contended on
appeal, that the underlying complaint included factual allegations of damage to any
property other than the insulated glass units (IGUs) themselves and the
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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curtainwalls into which the IGUs were installed. Because the Named Insured
under the Motorists policy—Midwest Curtainwalls Inc. ("Midwest")—received the
IGUs and installed them into the curtainwalls, the only property damage alleged in
the complaint was excluded under the plain text of Exclusion (k). That exclusion
precludes coverage for "‘[p]roperty damage’ to ‘your product’ arising out of it or
any part of it." The insurance policy defines "your product," in part, to include
"[a]ny goods or products, other than real property, manufactured, sold, handled,
distributed or disposed of by" the Named Insured, i.e., Midwest.
Old Republic contends only that the IGUs do not count as Midwest’s
products, but the district court correctly rejected this contention. Although
manufactured by Viracon, the IGUs fall within the "your product" exclusion
because they were "handled" by Midwest. See Merriam-Webster Online
Dictionary, https://www.merriam-webster.com/dictionary/handle (last visited Mar.
24, 2020) (defining "handle" as "to act on or perform a required function with
regard to"); The American Heritage Dictionary of the English Language,
https://ahdictionary.com/word/search.html?q=handle (last visited Mar. 24, 2020)
(defining "handle" as "[t]o touch, lift, or hold with the hands"); Oxford English
Dictionary, https://www.oed.com/view/Entry/83880?rskey=HdVxHz&
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result=3#eid (last visited Mar. 24, 2020) (defining "handle" as "[t]o manipulate" or
"[t]o touch or feel with the hand or hands"). After Viracon manufactured the
IGUs, they were delivered to Midwest to install into the frames that it had
designed. The plain meaning of the exclusion therefore unambiguously precludes
coverage. Accordingly, Motorists did not owe a duty to defend its additional
insureds.
AFFIRMED.
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