Century Surety Company v. James Spurgetis , 587 F. App'x 423 ( 2014 )


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  •                                                                              FILED
    NOT FOR PUBLICATION                                DEC 11 2014
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    CENTURY SURETY COMPANY, an                      No. 13-35302
    Ohio corporation,
    D.C. No. 3:12-cv-05731-RBL
    Plaintiff - Appellee,
    v.                                            MEMORANDUM*
    JAMES P. SPURGETIS, as Guardian for
    and of the Estate of Gary Dvojack, and
    Sarah Dvojack,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Western District of Washington
    Ronald B. Leighton, District Judge, Presiding
    Submitted December 9, 2014**
    Seattle, Washington
    Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    James Spurgetis, as Guardian for the estate of Gary Dvojack (“Dvojack”),
    appeals the district court’s summary judgment grant in favor of Century Surety
    Company (“Century”) in this insurance coverage dispute. We affirm.
    The district court did not err by concluding that Century’s assault and battery
    $250,000 policy limit applied rather than the general $1 million bodily injury
    coverage. Dvojack’s state court complaint alleges an assault and battery by Abbott,
    and the plain language of the general liability policy excludes coverage for any injury
    arising out of or resulting from any “actual, threatened or alleged assault or battery”
    anywhere in the chain of events, including any negligent employment, supervision or
    training of any person in connection with such actual, threatened or alleged assault
    and battery. Coverage could exist for Dvojack’s claim, if at all, only under the
    $250,000 limited buyback endorsement.
    Nor is Dvojack entitled to coverage by estoppel because Century acted in bad
    faith and used extrinsic evidence to deny its duty to defend. This is a coverage case,
    not a duty to defend case. Century properly agreed to defend the lawsuit under a
    reservation of rights, made a settlement offer based on what it reasonably believed to
    be the applicable policy limit, and then sought a declaratory judgment to determine
    the actual policy limit. Cf. Truck Ins. Exch. v. Vanport Homes, Inc., 
    147 Wash. 2d 751
    , 761 (2002).
    2
    Although the court did not explain its reasoning for denying Dvojack’s request
    for abstention, a remand is not automatically required because declaratory relief is not
    the only type of relief sought. The insured’s counterclaim seeks damages for bad faith
    and violation of the consumer protection act, and in such instances the district court
    should not decline to entertain the claim for declaratory relief. See Scotts Co. v. Seeds,
    Inc., 
    688 F.3d 1154
    , 1158-59 (9th Cir. 2012).1 To the extent Dvojack challenges the
    merits of the court’s decision to deny the request, the court did not abuse its
    discretion. See Vasquez v. Rackauckas, 
    734 F.3d 1025
    , 1040-41 (9th Cir. 2013); Am.
    Intern. Underwriters v. Cont’l Ins. Co., 
    843 F.2d 1253
    , 1257 (9th Cir. 1988).
    Dvojack also attempts to challenge the district court’s removal jurisdiction and
    seek remand in a separate lawsuit that is not part of this appeal (No. C13-5362-RBL).
    As this issue is not properly before us, we lack jurisdiction to address Dvojack’s
    claims in this regard.
    AFFIRMED.
    1
    For the same reason, abstention should be evaluated under the Colorado River
    doctrine rather than Brillhart. 
    Scotts, 688 F.3d at 1159
    .
    3
    

Document Info

Docket Number: 13-35302

Citation Numbers: 587 F. App'x 423

Filed Date: 12/11/2014

Precedential Status: Non-Precedential

Modified Date: 1/13/2023