Judith Newman v. United Fire & Casualty Co

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 16 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JUDITH NEWMAN, as Personal No. 14-35103 Representative of the Estate of Karlye Newman, D.C. No. 9:13-cv-00047-DLC

Plaintiff-Appellee,

MEMORANDUM*

v.

UNITED FIRE & CASUALTY

COMPANY,

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, Chief Judge, Presiding

Submitted July 8, 2016** Seattle, Washington

Before: TASHIMA and M. SMITH, Circuit Judges, and KOBAYASHI,*** District Judge.

* 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). *** The Honorable Leslie E. Kobayashi, United States District Judge for the District of Hawaii, sitting by designation. Defendant-Appellant United Fire & Casualty Co. (“United Fire”) appeals the

award of summary judgment in favor of Plaintiff-Appellee Judith Newman, as

Personal…

dissenting:

Although I agree with the majority’s conclusion that Montana law applies, I disagree that United Fire had a duty to defend its insured, National Contract Services. In arriving at 'its duty-to-defend conclusion, the majority reasons that the Premises Endorsement may be construed in favor of coverage. The Premises Endorsement, which modifies the Policies, limits coverage to a specified physical location: National Contract’s 12,000 square *818 foot office-in St. George, Utah. Given this limitation, the majority’s interpretation of the Premises Endorsement relies on a number faulty premises and conclusions. I therefore dissent.

1. The underlying complaint does not mention St. George, Utah. See Tidyman’s Mgmt. Servs. Inc. v. Davis, 376 Mont. 80 , 330 P.3d 1139, 1149 (2014) (“The duty to defend arises when a complaint against an insured alleges facts which, if proved, would result in coverage.”). It alleges that National Contract is a citizen of Nevada and Montana. It also alleges that National Contract negligently provided program materials and services, leading to the bodily injury in Sanders County, Montana. But nowhere does the complaint allege that National Contract…

MEMORANDUM ***

Defendant-Appellant United Fire & Casualty Co. (“United Fire”) appeals the award of summary judgment in favor of Plaintiff-Appellee Judith Newman, as Personal Representative of the Estate of Kar-lye Newman (“Newman”), in an insurance-coverage action. First, we hold that Montana law applies pursuant to Mitchell v. State Farm Insurance Co., 315 Mont. 281 , 68 P.3d 703 (2003), and Mont. Code Ann. § 28-3-102 .

Second, we recognize that the endorsement in the commercial general liability policy titled “LIMITATION OF COVERAGE TO DESIGNATED PREMISES OR PROJECT” and the similar endorsement in the umbrella policy (collectively, “the Premises Endorsements” and “the Policies”) could be interpreted as limiting coverage to occurrences tied to National Contract Services’ (“National Contract”) St. George, Utah, premises. Such an interpretation, however, would be inconsistent with the Policies’ definitions of the “coverage territory,” which include, inter alia, all of the United States. Reading the Premises Endorsements in light of the Policies as a whole, we hold that the endorsements are reasonably susceptible to two different interpretations, and therefore are ambiguous. See…