George Demarco v. Everest Indemnity Insurance Co

MEMORANDUM **

George DeMarco and James DeMarco (the “DeMarcos”) appeal the district court’s grant of summary judgment in favor of Everest Indemnity Insurance Company (“Everest”) on the DeMarcos’s claim that Everest had a duty to defend them in an arbitration with Interface Security Systems Holdings, Inc. (“Interface”). Interface bought most of the DeMarcos’s stock *796 in Greater Alarm, a business engaged in alarm installation, service and repair pursuant to a Stock Purchase Agreement (“SPA”), and later sued for breach of the Stock Purchase Agreement. Every allegation in the arbitration demand concerned the DeMarcos’s alleged misrepresentations in the SPA.

We review a grant of summary judgment de novo. State Farm Mut. Auto. Ins. Co. v. Davis, 937 F.2d 1415, 1417 (9th Cir.1991). The “first step in determining whether the duty to defend is triggered is to compare the allegations of the complaint ... with the policy terms to see if they ‘reveal a possibility that the claim may be covered by the policy.’ ” Pension Trust Fund for Operating Eng’rs v. Fed. Ins. Co., 307 F.3d 944, 949 (9th Cir.2002) (quoting Horace Mann Ins. Co. v. Barbara B., 4 Cal.4th 1076 , 17 Cal.Rptr.2d 210 , 846…

dissenting:

On the facts before us, I believe the majority’s decision is contrary to California law, Montrose Chemical Corp. v. Superior Court of Los Angeles County, 6 Cal.4th 287 , 24 Cal.Rptr.2d 467 , 861 P.2d 1153 (1993); Gray v. Zurich Ins. Co., 65 Cal.2d 263 , 54 Cal.Rptr. 104 , 419 P.2d 168 (1966), and misapprehends this court’s own discussion of relevant California law in Pension Trust Fund for Operating Engineers v. Federal Ins. Co., 307 F.3d 944 (9th Cir.2002), so I respectfully dissent.

FILED

NOT FOR PUBLICATION MAR 09 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

GEORGE V. DEMARCO; JAMES P. No. 08-56511

DEMARCO,

D.C. No. 8:07-cv-00022-DOC- Plaintiffs - Appellants, RNB

v.

MEMORANDUM *

EVEREST INDEMNITY INSURANCE

COMPANY, a Delaware company,

Defendant - Appellee.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted February 5, 2010 Pasadena, California

Before: WARDLAW and CALLAHAN, Circuit Judges, and SEDWICK, ** District Judge.

George DeMarco and James DeMarco (the 'DeMarcos') appeal the district

court's grant of summary judgment in favor of Everest Indemnity Insurance

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable John W. Sedwicµ, United States District Judge for the District of Alasµa, sitting by designation. Company ('Everest') on the DeMarcos's claim that Everest had a duty to defend

them in…