Metropolitan Property & Casualty Insurance v. Gilson

*611 MEMORANDUM ** and ORDER

Pauline Gilson, Robert Gilson’s wife and the personal representative of his estate, appeals the district court’s judgment that Metropolitan Property and Casualty Insurance Company (“Metropolitan”) did not have a duty to defend, under a homeowner’s insurance policy, an action brought by Joel Bitow’s estate concerning the crash of a Tanarg 912 air trike. Reviewing de novo, Ward v. Ryan, 623 F.3d 807, 810 (9th Cir.2010), we affirm.

1. New Hampshire substantive law applies in this diversity case. “To determine the applicable substantive law, a federal court sitting in diversity applies the choice-of-law rules of the forum.” Narayan v. EGL, Inc., 616 F.3d 895, 898 (9th Cir.2010). Under Arizona law, the applicable substantive law in an insurance case is “the principal location of the insured risk.” Restatement (Second) of Conflict of Laws § 193 (1971); see Beckler v. State Farm Mut. Auto. Ins. Co., 195 Ariz. 282 , 987 P.2d 768, 772 (1999) (holding that section 193 of the Restatement governs when there is no choice-of-law provision in the insurance policy). Here, “the principal location of the insured risk” of the New Hampshire home is New Hampshire.

2.…

dissenting:

The complaint filed against Gilson presents the common sense proposition that, in an aircraft like an ultralight, if a big man loses consciousness and becomes (in effect) dead weight, the aircraft is likely to crash. Accordingly, the complaint argues, Gilson can be held liable for lying about his health on the medical form required before taking a seat in the two-seater. More specifically, the complaint alleges:

Thus, the crash occurred “as a result of [Gilson] becoming unconscious, dying in mid-flight, or otherwise losing control of his movements.” The complaint further alleges that Gilson should have known that “his health was of such a precarious nature that he could easily not be able to control his movements and, as a result, cause the crash of the ultra light aircraft.” As a result, according to the complaint, Gilson “breached his duty to Joel Bitow by lying about his medical condition.”

The insurance company argues that because the complaint also alleges that Gil-son had to “participate in the weight shifts, in synch with the pilot,” the complaint’s theory of liability requires the jury to find that Gilson was an operator of the aircraft. But this is merely…

FILED

NOT FOR PUBLICATION NOV 09 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

METROPOLITAN PROPERTY AND No. 10-16709

CASUALTY INSURANCE COMPANY,

a New York corporation, D.C. No. 2:09-cv-01874-GMS

Plaintiff - Appellee,

MEMORANDUM*

v. and ORDER

PAULINE GILSON, as surviving spouse and personal representative for the Estate of Robert Gilson,

Defendant - Appellant,

and

JOHN C. BITOW; et al.,

Defendants.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding

Argued and Submitted October 26, 2011 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: GRABER and IKUTA, Circuit Judges, and KAPLAN,** Senior District Judge.

Pauline Gilson, Robert Gilson’s wife and the personal representative of his

estate, appeals the district court’s judgment that Metropolitan Property and

Casualty Insurance Company ("Metropolitan") did…