Travelers Property Casualty Co v. Safeco Insurance Co. Of Illinois , 468 F. App'x 689 ( 2012 )

FILED
FEB 10 2012
MOLLY C. DWYER, CLERK
NOT FOR PUBLICATION U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRAVELERS PROPERTY CASUALTY No. 09-56864
COMPANY OF AMERICA,
D.C. No. 2:08-CV01261 GW
Plaintiff - Appellee,
v. MEMORANDUM *
SAFECO INSURANCE COMPANY OF
ILLINOIS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and submitted December 8, 2011
Pasadena, California
Before: PREGERSON and PAEZ, Circuit Judges, and JONES, District Judge.**
Safeco Insurance Company of Illinois (“Safeco”) appeals the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
grant of summary judgment to Travelers Property Casualty Company of America
(“Travelers”) in Travelers’ action under California law seeking contribution from
Safeco for the settlement and defense costs of an underlying wrongful death action
against Daniel and Patricia Pondella, in their individual and trustee capacities. For the
following reasons, we affirm the judgment of the district court.
Safeco did not argue in the district court that there was no coverage for the
accident under the Safeco policies and understandably the district court did not
expressly address that question. Issues not presented to the district court generally
cannot be raised for the first time on appeal. United States v. Flores-Payon, 942 F.2d
556, 558 (9th Cir. 1991). There is an exception, of course, when the district court
commits plain error and an injustice may result. Id. In this case, the district court did
not commit plain error.
Travelers met its prima facie burden as to coverage at summary judgment by
showing that the Pondellas were named as defendants in the underlying action, both
as individuals and as trustees of their family trust. See Safeco Ins. Co. of Am. v.
Superior Court, 44 Cal. Rptr. 3d 841, 846 (Ct. App. 2006). Safeco, as the
nonparticipating insurer, bore the ultimate burden of proving the absence of liability
coverage under its policies for the Pondellas, either as individuals or as trustees. See
id. The Pondellas as individuals were actual insureds under the policies. Because, on
the limited facts before the court, Safeco could not show that the Pondellas as
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individuals were not legally liable for the accident causing the victim’s death, Safeco
did not meet its burden of showing there was no coverage.
This is true even if we assume that section 18002 of the California Probate
Code, limiting the personal liability of trustees to situations in which they are
“personally at fault,” applies. Cal. Prob. Code § 18002 (West 2011). The Law
Revision Commission comment states that “[a] trustee is ‘personally at fault’ when
the trustee commits a tort either intentionally or negligently.” Id. cmt. (citing
Johnston v. Long, 181 P.2d 645, 650 (Cal. 1947)). Had the wrongful death action
gone to trial, a jury could reasonably have found that Daniel Pondella acted
negligently in fulfilling his duty to maintain the trees on the lot and that his negligence
caused the victim’s death.
As it did before the district court, Safeco argues that because the Pondellas
purchased the lot in 1978 as an “investment” and held it as such through the time of
the accident, the incident is not covered under the Safeco policies because of their
“business pursuits” exclusion. This exclusion is common in homeowners policies and
serves to restrict personal liability coverage to “personal or nonbusiness activities.”
H. Walter Croskey et al., Cal. Practice Guide: Insurance Litigation ¶ 7:2202 (2011).
It is true that California law defines the term “business” broadly in the context of the
business pursuits exclusion to include any “regular activity motivated by profit or
gain, including part-time or supplemental income projects.” Id. ¶ 7:2203 (quoting
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State Farm Fire & Cas. Co. v. Geary, 699 F. Supp. 756, 759 (N.D. Cal. 1987)).
California courts have recognized certain investments and other relatively passive
business activity as falling within the scope of the exclusion. See State Farm Fire &
Cas. Co. v. Drasin, 199 Cal. Rptr. 749, 752-53 (Ct. App. 1984). However, in owning
the vacant lot in question, the Pondellas engaged in almost no activity at all and
believed that the lot was essentially valueless. The evidence in this case does not
support the application of the “business pursuits” exclusion.
Safeco’s final argument is that its policies were “excess only,” available only
if the primary policies were exhausted. The plain language of the insuring clauses of
the Safeco policies states that they provide coverage for bodily injury and other
insured risks immediately and are not contingent upon exhaustion of any underlying
insurance. See Croskey et al., supra, ¶ 8:176 (noting that primary insurance provides
“immediate coverage” upon an occurrence or happening giving rise to liability).
They are thus primary policies, notwithstanding the “excess only” clauses purporting
to limit coverage where other insurance is available. See Commerce & Indus. Ins. Co.
v. Chubb Custom Ins. Co., 89 Cal. Rptr. 2d 415, 419-20 (Ct. App. 1999). Further, the
Safeco and the Travelers policies insure the same risk, i.e., the risk of bodily injury
for which the Pondellas will be liable. Where primary insurance policies contain
conflicting excess clauses, the clauses are disregarded and the insurers must share in
the defense and indemnity costs on a pro-rata basis. See id. at 418. Thus, as the
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district court determined, Travelers is entitled to pro-rata indemnification for the total
amount it paid to settle the underlying action.
AFFIRMED.
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