NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 9 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK BIEGLER, No. 21-35012

Plaintiff-Appellant, D.C. No. 6:20-cv-00032-CCL

v.

MEMORANDUM*

G.M.I. N.A. INC., DBA GMI Insurance; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Montana Charles C. Lovell, District Judge, Presiding

Argued and Submitted January 18, 2022 Honolulu, Hawaii

Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges. Concurrence by Judge O’SCANNLAIN

Mark Biegler, an insurance agent, appeals from the district court’s dismissal

of his claims against an insurance broker, GMI. We review the district court’s order

granting the motion to dismiss for failure to state a claim de novo. See L.A. Lakers,

Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017). We have jurisdiction under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 28 U.S.C. § 1291, and we affirm.

This lawsuit arises out of an insurance policy that Biegler obtained for his

client, Fleetlogix, from United Specialty Insurance Company and Underwriting

Service Management Company, LLC (collectively, the “Carrier”). Biegler worked

with Amy Phillips, an employee at GMI and the insurance broker who dealt directly

with the Carrier on Biegler’s behalf. After Fleetlogix filed the first claim under the

policy, the Carrier initially declined coverage on the mistaken belief that the policy

was an excess one. In a conversation with Biegler, the Carrier ultimately conceded

that the policy was primary, but claimed that Phillips from GMI misled the Carrier

by saying that “there was other coverage.” Nonetheless, the Carrier agreed to

continue the coverage under the policy as written. But with more claims

accumulating, the Carrier canceled the policy and cited the absence of an underlying

policy as the reason for cancellation. Upset over the cancellation, Fleetlogix

terminated its relationship with Biegler. In his complaint, Biegler asserted that

GMI’s negligence, breach of various duties, and negligent misrepresentation caused

him the loss of a valuable customer.

The district court concluded that all of Biegler’s claims against GMI fail for

the simple reason that GMI did exactly what it said it would do: procure a primary

coverage policy for Fleetlogix. Biegler argues that his claims are more nuanced, and

that the procurement of a primary policy does not undermine his claims because

2 GMI allegedly misled the Carrier about the nature of the policy, thus rendering the

Carrier an “unwilling” insurer.

We need not opine on the precise contours of an insurance broker’s duty under

Montana law because the complaint’s theory of an “unwilling” insurer is simply

implausible. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.

2001) (courts are not required to accept as true allegations that are “unwarranted

deductions of fact, or unreasonable inferences”). Here, the written policy issued by

the Carrier plainly provided primary coverage, undercutting any inference that the

Carrier was unaware that it was a primary policy or that the Carrier was an

“unwilling” insurer. See Steckman v. Hart Brewing, 143 F.3d 1293, 1295-96 (9th

Cir. 1998) (“[W]e are not required to accept as true conclusory allegations which are

contradicted by documents referred to in the complaint.”). Further, there is no

dispute that the Carrier received premiums commensurate to a primary, not excess,

insurance policy. And the Carrier was apparently willing to pay some claims under

the policy at first (until they began accumulating), suggesting that the Carrier was

not an unwilling one.

In sum, Biegler did not plead any facts that would explain how or why the

Carrier would issue a policy without knowing what coverage it provided. His theory

of an “unwilling” insurer is thus implausible.

AFFIRMED.

3

FILED

Biegler v. G.M.I. N.A. Inc., No. 21-35012 FEB 9 2022

MOLLY C. DWYER, CLERK

O’SCANNLAIN, Circuit Judge, concurring: U.S. COURT OF APPEALS

I agree with the panel’s conclusion: “Biegler did not plead any facts that

would explain how or why the Carrier would issue a policy without knowing what

coverage it provided.” Nowhere in his Complaint, for example, does Biegler hint

at why or how Phillips would have misunderstood or misrepresented what

Fleetlogix wanted, such that she would or could have misled the Carrier. Nor does

he allege the Carrier was unsophisticated or otherwise unable to understand the

terms of the agreement, which Biegler claims the Carrier “conceded . . . did

provide primary coverage.” Without any “unwarranted deductions of fact[] or

unreasonable inferences,” see Sprewell v. Golden State Warriors, 266 F.3d 979,

988 (9th Cir. 2001), Biegler’s complaint fails to state a claim against GMI.