Mark Biegler v. G.M.I. N.A. Inc. ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        FEB 9 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MARK BIEGLER,                                   No.    21-35012
    Plaintiff-Appellant,            D.C. No. 6:20-cv-00032-CCL
    v.
    MEMORANDUM*
    G.M.I. N.A. INC., DBA GMI Insurance; et
    al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the District of Montana
    Charles C. Lovell, District Judge, Presiding
    Argued and Submitted January 18, 2022
    Honolulu, Hawaii
    Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.
    Concurrence by Judge O’SCANNLAIN
    Mark Biegler, an insurance agent, appeals from the district court’s dismissal
    of his claims against an insurance broker, GMI. We review the district court’s order
    granting the motion to dismiss for failure to state a claim de novo. See L.A. Lakers,
    Inc. v. Fed. Ins. Co., 
    869 F.3d 795
    , 800 (9th Cir. 2017). We have jurisdiction under
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    
    28 U.S.C. § 1291
    , and we affirm.
    This lawsuit arises out of an insurance policy that Biegler obtained for his
    client, Fleetlogix, from United Specialty Insurance Company and Underwriting
    Service Management Company, LLC (collectively, the “Carrier”). Biegler worked
    with Amy Phillips, an employee at GMI and the insurance broker who dealt directly
    with the Carrier on Biegler’s behalf. After Fleetlogix filed the first claim under the
    policy, the Carrier initially declined coverage on the mistaken belief that the policy
    was an excess one. In a conversation with Biegler, the Carrier ultimately conceded
    that the policy was primary, but claimed that Phillips from GMI misled the Carrier
    by saying that “there was other coverage.” Nonetheless, the Carrier agreed to
    continue the coverage under the policy as written.           But with more claims
    accumulating, the Carrier canceled the policy and cited the absence of an underlying
    policy as the reason for cancellation.     Upset over the cancellation, Fleetlogix
    terminated its relationship with Biegler. In his complaint, Biegler asserted that
    GMI’s negligence, breach of various duties, and negligent misrepresentation caused
    him the loss of a valuable customer.
    The district court concluded that all of Biegler’s claims against GMI fail for
    the simple reason that GMI did exactly what it said it would do: procure a primary
    coverage policy for Fleetlogix. Biegler argues that his claims are more nuanced, and
    that the procurement of a primary policy does not undermine his claims because
    2
    GMI allegedly misled the Carrier about the nature of the policy, thus rendering the
    Carrier an “unwilling” insurer.
    We need not opine on the precise contours of an insurance broker’s duty under
    Montana law because the complaint’s theory of an “unwilling” insurer is simply
    implausible. See Sprewell v. Golden State Warriors, 
    266 F.3d 979
    , 988 (9th Cir.
    2001) (courts are not required to accept as true allegations that are “unwarranted
    deductions of fact, or unreasonable inferences”). Here, the written policy issued by
    the Carrier plainly provided primary coverage, undercutting any inference that the
    Carrier was unaware that it was a primary policy or that the Carrier was an
    “unwilling” insurer. See Steckman v. Hart Brewing, 
    143 F.3d 1293
    , 1295-96 (9th
    Cir. 1998) (“[W]e are not required to accept as true conclusory allegations which are
    contradicted by documents referred to in the complaint.”). Further, there is no
    dispute that the Carrier received premiums commensurate to a primary, not excess,
    insurance policy. And the Carrier was apparently willing to pay some claims under
    the policy at first (until they began accumulating), suggesting that the Carrier was
    not an unwilling one.
    In sum, Biegler did not plead any facts that would explain how or why the
    Carrier would issue a policy without knowing what coverage it provided. His theory
    of an “unwilling” insurer is thus implausible.
    AFFIRMED.
    3
    FILED
    Biegler v. G.M.I. N.A. Inc., No. 21-35012                                 FEB 9 2022
    MOLLY C. DWYER, CLERK
    O’SCANNLAIN, Circuit Judge, concurring:                                U.S. COURT OF APPEALS
    I agree with the panel’s conclusion: “Biegler did not plead any facts that
    would explain how or why the Carrier would issue a policy without knowing what
    coverage it provided.” Nowhere in his Complaint, for example, does Biegler hint
    at why or how Phillips would have misunderstood or misrepresented what
    Fleetlogix wanted, such that she would or could have misled the Carrier. Nor does
    he allege the Carrier was unsophisticated or otherwise unable to understand the
    terms of the agreement, which Biegler claims the Carrier “conceded . . . did
    provide primary coverage.” Without any “unwarranted deductions of fact[] or
    unreasonable inferences,” see Sprewell v. Golden State Warriors, 
    266 F.3d 979
    ,
    988 (9th Cir. 2001), Biegler’s complaint fails to state a claim against GMI.
    

Document Info

Docket Number: 21-35012

Filed Date: 2/9/2022

Precedential Status: Non-Precedential

Modified Date: 2/9/2022