NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 16 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEBORAH QUATTROCCHI, No. 18-15208

Plaintiff-Appellant, D.C. No. 2:17-cv-01578-JAM-EFB v.

ALLSTATE INDEMNITY COMPANY, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted August 6, 2019** San Francisco, California

Before: O’SCANNLAIN, SILER,*** and NGUYEN, Circuit Judges.

Deborah Quattrocchi appeals from the district court’s judgment dismissing

her amended complaint with prejudice. We have jurisdiction under 28 U.S.C.

* 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 Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. § 1291. Reviewing de novo, see Friedman v. AARP, Inc., 855 F.3d 1047, 1051

(9th Cir. 2017), we affirm.

An insurance policy’s interpretation is a legal question that “follows the

general rules of contract interpretation.” MacKinnon v. Truck Ins. Exch., 73 P.3d

1205, 1212 (Cal. 2003). Although “[a]ny ambiguous terms are resolved in the

insureds’ favor,” E.M.M.I. Inc. v. Zurich Am. Ins. Co., 84 P.3d 385, 389 (Cal.

2004) (quoting Safeco Ins. Co. of Am. v. Robert S., 28 P.3d 889, 893 (Cal. 2001)),

a court’s “assessment of the policy language must be made in the context of the

nature of [the] policy as an excess insurance policy,” Qualcomm, Inc. v. Certain

Underwriters at Lloyd’s, London, 73 Cal. Rptr. 3d 770, 777 (Ct. App. 2008), and

in light of California’s policy “that insureds should not recover the same amount

twice, once from their insurance company and again from a third party,” 21st

Century Ins. Co. v. Superior Court, 213 P.3d 972, 974 (Cal. 2009).

Quattrocchi argues that her policy language is ambiguous. Relying on out-

of-state authority, she asserts that an excess insurer’s exclusion “for medical

expenses for bodily injury . . . to the extent [primary plan] benefits are required to

be payable” could be construed as inapplicable where the insured has repaid her

primary plan out of a recovery from the third party tortfeasor. Rubin v. State Farm

Mut. Auto. Ins. Co., 43 P.3d 1018, 1020 (Nev. 2002).

2 Even if California courts were to follow Rubin, however, Quattrocchi’s

policy language is materially different. It excluded elements of the loss that “are

paid, payable or required to be provided . . . under the terms of any and all primary

medical plans.” California courts have held that such language clearly and

unambiguously excludes coverage so long as the insured is eligible for benefits

under a primary plan, regardless of whether she actually receives them. See Case

v. State Farm Mut. Auto. Ins. Co., 241 Cal. Rptr. 3d 458, 471–72 (Ct. App. 2018);

Bailey v. Interinsurance Exch., 122 Cal. Rptr. 508, 509–10 (Ct. App. 1975).

Therefore, Allstate’s alleged statements and conduct in denying Quattrocchi’s

claim were neither fraudulent nor unfair within the meaning of California’s Unfair

Competition Law, and the district court properly dismissed the suit without leave

to amend. See 21st Century, 213 P.3d at 975.

AFFIRMED.

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