NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 20 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF MARTIN T. FORNADLEY, No. 18-55115

Plaintiff-Appellant, D.C. No. 2:17-cv-04202-GW-SK v.

SAFECO INSURANCE COMPANY OF MEMORANDUM*

ILLINOIS,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Submitted May 16, 2019** Pasadena, California

Before: LIPEZ,*** WARDLAW, and HURWITZ, Circuit Judges.

The Estate of Martin T. Fornadley appeals the district court’s grant of

summary judgment to SafeCo Insurance Company of Illinois in this insurance

* 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 Kermit V. Lipez, United States Circuit Judge for the First Circuit, sitting by designation. coverage action. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

1. The district court correctly interpreted the critical policy exclusion—which

denied coverage for personal injury claims made by those with “proper temporary

custody of the property until appointment and qualification of a legal

representative”—based on its “ordinary and popular” meaning. Ameron Int’l Corp.

v. Ins. Co. of Pa., 242 P.3d 1020, 1024 (Cal. 2010). The relevant phrase

unambiguously includes a person responsible for the property, with the permission

of the Estate, in the period before a legal representative is formally appointed.

2. There is no genuine dispute that Larry Benner was responsible for the

Estate property at the time of his injury. The Estate’s amended complaint alleged

that “[a]t the time of his death Fornadley nominated Larry Benner to act as the

representative of his Estate,” and it is bound by that factual assertion. See Am. Title

Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). Moreover, Benner

stated he was “in charge” of the property after Fornadley’s death, and that he was

asked “to check on the property and lock it up.” Benner’s lack of authority to collect

rent or sell the property did not prevent him from exercising “proper temporary

custody.”

AFFIRMED.1

1 We grant the Estate’s motion to supplement the record on appeal. Dkt. 6.

2