NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 29 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HARTFORD FIRE INSURANCE No. 20-15418

COMPANY,

D.C. No. 5:19-cv-01622-NC Plaintiff-counter- defendant-Appellee,

MEMORANDUM*

v.

TURNER/DEVCON, a Joint Venture,

Defendant-counter-claimant- 3rd-party-plaintiff- Appellant,

v.

WESTCHESTER SURPLUS LINES

INSURANCE COMPANY; ALTERRA

AMERICA INSURANCE COMPANY,

Third-party-defendants- Appellees.

Appeal from the United States District Court for the Northern District of California Nathanael M. Cousins, Magistrate Judge, Presiding

Submitted February 5, 2021**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. San Francisco, California

Before: RAWLINSON and BUMATAY, Circuit Judges, and S. MURPHY, *** District Judge.

In this insurance dispute, Turner/Devcon appeals the district court’s grant of

summary judgment in favor of Hartford Fire Insurance and Alterra American

Insurance, and dismissal in favor of Westchester Surplus Lines Insurance Company.

The parties agree that California law governs this case. Reviewing de novo, Price

v. Hawaii, 939 F.2d 702, 706 (9th Cir. 1991), we affirm.

1. The district court did not err by looking to the allegations in the putative

civil rights class action complaint filed against the 49ers by Abdul Nevarez and

others (“the Nevarez complaint”). “The determination whether the insurer owes a

duty to defend usually is made in the first instance by comparing the allegations of

the complaint with the terms of the policy.” Montrose Chem. Corp. v. Superior

Court, 6 Cal. 4th 287, 295 (1993) (in bank) (simplified). The question that the court

must answer is whether the allegations show a potential for coverage within the

policy. Hurley Constr. Co. v. State Farm Fire & Cas. Co., 10 Cal. App. 4th 533,

538 (Ct. App. 1992).

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Stephen J. Murphy III, United States District Judge for the Eastern District of Michigan, sitting by designation.

2 Here, that question was answered by looking to the Nevarez complaint, which

is the lawsuit underlying this indemnity litigation. The 49ers complaint seeks only

indemnification, and is thus “wholly derivative” of the underlying Nevarez

complaint. W. S.S. Lines, Inc. v. San Pedro Peninsula Hosp., 8 Cal. 4th 100, 115

(1994). Further, the 49ers complaint expressly incorporates by reference all the facts

alleged in the Nevarez complaint. Finally, “[f]acts extrinsic to the complaint also

give rise to a duty to defend when they reveal a possibility that the claim may be

covered by the policy.” Montrose Chem. Corp., 6 Cal. 4th at 295, 298 (holding that

an insurer may seek “summary adjudication that no potential for liability exists and

thus that it has no duty to defend” based on extrinsic evidence). Given these

principles of California law, the district court properly considered the allegations

and claims laid out in the Nevarez complaint to determine whether a duty to defend

exists.

2. The district court correctly concluded that the Nevarez complaint did not

allege an “occurrence” within the meaning of the policies. “The insurer is excused

from its defense obligation only when the third party complaint can by no

conceivable theory raise a single issue which could bring it within the policy

coverage.” Fire Ins. Exch. v. Superior Court, 181 Cal. App. 4th 388, 391–92 (Ct.

App. 2010) (simplified).

In California, the design and construction of a structure that allegedly violates

3 accessibility laws generally does not fall within the plain meaning of “accident”

when used in insurance contracts. See Mod. Dev. Co. v. Navigators Ins. Co., 111

Cal. App. 4th 932, 943 (Ct. App. 2003) (explaining that the construction of an

inaccessible structure was not an “accident” and thus not an “occurrence” because

the defendants in the underlying suit “intended for the [inaccessible area] to be

configured” as it was). Put another way, an event is not an “accident” where the

insured intended the acts that caused the victim’s injury. Merced Mut. Ins. Co. v.

Mendez, 213 Cal. App. 3d 41, 50 (Ct. App. 1989) (simplified). And an insured’s

intentional act does not become an accident simply because it had the unintended

effect of violating federal and state accessibility laws. See Loyola Marymount Univ.

v. Hartford Accident & Indem. Co., 219 Cal. App. 3d 1217, 1225 (Ct. App. 1990).

With these principles in mind, we agree with the district court that the Nevarez

complaint does not allege an “occurrence” within the meaning of the policies. The

Nevarez complaint alleges that the 49ers violated the Americans With Disabilities

Act by designing and constructing their stadium in a manner that did not comply

with federal disability access design standards. Because the design and construction

of the stadium was not an “accident,” it was not an “occurrence,” and is not covered

by the policies in issue.1

1 It is not to the contrary that the 49ers complaint uses the word “negligence” within the equitable indemnity cause of action. The discrete use of the word

4 For the foregoing reasons, we AFFIRM the district court.

“negligence,” does not transform any of the allegations against Turner/Devcon into conduct involving “an accident.” See Quan v. Truck Ins. Exch., 67 Cal. App. 4th 583, 596 (Ct. App. 1998) (“‘[N]egligence’ does not necessarily equate with an ‘accident[.]’”). Rather, as explained above, and consistent with California law, the allegations regarding the design and construction of the stadium remain an intentional act.

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