FILED

NOT FOR PUBLICATION

JUN 10 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRAIG R. JALBERT, a Massachusetts No. 19-55188 citizen, as Trustee of the Vernon Tort Claims Trust, D.C. No. 2:17-cv-07167-GW-KS Plaintiff-Appellant,

v. MEMORANDUM*

XL INSURANCE AMERICA, INC., a Delaware corporation; ZURICH

AMERICAN INSURANCE COMPANY,

Defendants-Appellees.

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

Submitted June 2, 2020** Pasadena, California

* 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). Before: LIPEZ,*** RAWLINSON, and N.R. SMITH, Circuit Judges.

Craig R. Jalbert, Trustee of the Vernon Tort Trust, appeals the district

court’s decision to grant summary judgment in favor of XL Insurance America,

Inc. (“XL”) and Zurich American Insurance Company (“Zurich”). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

Because this is a diversity action without any federal questions, California

law governs our decision. See Hydro Sys., Inc. v. Cont’l Ins. Co., 929 F.2d 472,

474 (9th Cir. 1991). Under California law, “[i]nterpretation of an insurance policy

is a question of law and follows the general rules of contract interpretation,” which

requires giving effect to the “mutual intention” of the parties. TRB Invs., Inc. v.

Fireman’s Fund Ins. Co., 145 P.3d 472, 476 (Cal. 2006). The “mutual intention” of

the parties is to be inferred from the written provisions of the contract based on

their clear and explicit meaning. Id. at 477.

1. Jalbert argues that the lead-particulate and arsenic emissions were Exide

Technologies, Inc.’s (“Exide”) “product,” which brought the underlying claims

within coverage. The Ninth Circuit has interpreted the term “product,” when used

in an identical products-completed operations hazard (“PCOH”) exception to a

*** The Honorable Kermit V. Lipez, United States Circuit Judge for the First Circuit, sitting by designation. 2 pollution exclusion, to unambiguously mean “goods or services which the insured

deals in as his stock or trade.” Hydro Sys., Inc., 929 F.2d at 475 (citation omitted).

Exide’s “stock or trade” were the lead ingots it marketed and sold to third parties,

not the lead-particulate and arsenic emissions, thus the PCOH exception does not

apply.

2. Because Jalbert failed to address the district court’s reasoning for finding

that the “your work” provision only applies to offsite contractor work, he waived

the issue of whether the district court erred by not making XL and Zurich meet

their burden on summary judgment to show when Exide’s work was completed.

See Hillis v. Heineman, 626 F.3d 1014, 1019 n.1 (9th Cir. 2010) (holding that,

where the plaintiff did not address the court’s alternative ground on appeal, the

plaintiff waived the issue). Even if not waived, these provisions do not apply

because “PCOH exclusions generally refer to ‘accidents caused by defective

workmanship which arise after completion of work by the insured on construction

or service contracts,’” and not damage occurring from pollution. Hydro Sys., Inc.,

929 F.2d at 477 (citation omitted).

3. Jalbert argues that XL’s pollution exclusion is unenforceable, because XL

did not obtain prior approval from the California Department of Insurance as

required by Proposition 103. However, the plain language of Proposition 103’s

3 implementing statute and its stated purpose only require the approval of “insurance

rates,” not policy terms. See Cal. Ins. Code § 1861.01(c). Therefore, Proposition

103 does not make XL’s policies unenforceable.1

AFFIRMED.2

1 Because the district court did not rely on the lead exclusion to find that the policies did not provide coverage for the underlying claims and because we affirm the district court’s ruling, we need not address Jalbert’s lead exclusion argument.

2 The motion to file an amicus brief is granted. 4