Allstate Indemnity Company v. Nicole Riverson , 533 F. App'x 736 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLSTATE INDEMNITY COMPANY, No. 12-35529
Plaintiff - Appellee, D.C. No. 3:10-cv-05366-RBL
v.
MEMORANDUM*
NICOLE JOHNSON RIVERSON,
Defendant,
and
JAMES CURTIS, husband and their
marital community composed thereof; et
al.,
Defendants - Appellants.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted July 9, 2013
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: M. SMITH and N.R. SMITH, Circuit Judges, and WALTER, Senior
District Judge.**
Defendants-Appellants Nicole Johnson Riverson, James and Leila Curtis,
and James Curtis as guardian for S.C., appeal the district court’s grant of summary
judgment in favor of Plaintiff-Appellee Allstate Indemnity Company (Allstate) on
Allstate’s claims for declaratory relief. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
The district court did not err in concluding that the acts of J.J., Riverson’s
minor child, were excluded from coverage under the “sexual molestation”
exclusion of Riverson’s Home Day Care Coverage Endorsement. In construing the
language of an insurance policy under Washington law, we examine the contract as
a whole. E–Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 726 P.2d 439,
443 (Wash. 1986). “A policy provision is ambiguous when, on its face, it is fairly
susceptible to two different interpretations, both of which are reasonable.” Id.
(citations omitted). “A provision, however, is not ambiguous merely because the
parties suggest opposing meanings.” Mayer v. Pierce Cnty. Med. Bureau, Inc., 909
P.2d 1323, 1326 (Wash. Ct. App. 1995) (citation omitted). “[A]mbiguity will not
**
The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
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be read into a contract where it can be reasonably avoided.” Id. (citation and
internal quotation marks omitted).
Here, the language of the Home Day Care Coverage Endorsement’s “sexual
molestation” exclusion unambiguously excludes coverage for acts of sexual
molestation by any insured person, not just an insured involved in the home day
care business. Because J.J. was an insured person under the policy, the district
court correctly determined that J.J.’s acts of sexual molestation were excluded
from coverage. The district court also properly determined that because J.J. was an
insured person, the policy’s joint obligations clause applied and excluded Riverson
from coverage for liability arising from J.J.’s acts.
AFFIRMED.
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