Airborne Freight Corporation, a Delaware Corporation Dba Airborne Express Inc v. St. Paul Fire & Marine Insurance Company, a Corporation

Airborne Freight Corporation (Airborne) appeals from the district court’s grant of summary judgment to Airborne’s insurer, St. Paul Fire & Marine Insurance Company (St. Paul), in a breach of contract case. Airborne sought indemnification from St. Paul after it settled lawsuits with National Fulfillment, Inc. (NFI) and Sur La Table for lost and damaged packages; St. Paul refused, citing the deductible and scope of coverage provisions of the contract. We review the district court’s contract interpretation de novo, applying Washington law. Assurance Co. of Am. v. Wall & Assocs. LLC of Olympia, 379 F.3d 557, 560 (9th Cir.2004). We reverse.

1. Care, Custody and Control

On review of a grant of summary judgment, “[w]e are not to weigh the evidence or determine the truth of the matter, but only to determine whether there is a genuine issue for trial.” Moran v. Selig, 447 F.3d 748, 753 (9th Cir.2006) (internal quotation marks omitted). There are material facts in dispute as to whether the United States Postal Service (USPS) was a covered agent of Airborne and whether Airborne retained responsibility and liability for packages once they were handed off to the USPS for delivery to the…

dissenting:

The majority makes a strong argument that there are material facts in dispute as to whether USPS was a covered agent of Airborne, and whether Airborne retained responsibility and liability for packages once they had been handed off to the USPS. However, I would not reach the issue. Even though ambiguities in deductible clauses are construed in favor of the insured, see Witherspoon v. St. Paul Fire & Marine Ins. Co., 86 Wash.2d 641 , 548 P.2d 302, 308 (1976), I am persuaded that under Washington law the deductible in the policy should have been applied on a per-package basis. I would therefore affirm the summary judgment.

“To determine the parties’ intent, the court first will view the contract as a whole, examining its subject matter and objective, the circumstances of its making, the subsequent conduct of the parties, and the reasonableness of their respective interpretations.” Transcon. Ins. Co. v. Wash. Pub. Utilities Dist. Utility Sys., 111 Wash.2d 452 , 760 P.2d 337, 340 (1988) (en banc). The consistent four-year historical practice of the parties was to apply a deductible to each individual claim of a cargo loss. An individual loss was never treated as anything…

472 F.3d 634 AIRBORNE FREIGHT CORPORATION, a Delaware corporation dba Airborne Express Inc, Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, a corporation, Defendant-Appellee. No. 04-35989. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 24, 2006. Filed December 26, 2006. Michael E. Gossler, Scott E. Feir and Benjamin I. Vanden Berghe, Montgomery Purdue Blankinship & Austin, Seattle, WA, for appellant Airborne Freight Corp. d/b/a Airborne Express. John P. Hayes, Forsberg & Umlauf, Seattle, WA, for appellee St. Paul Fire & Marine Insurance Co. Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-03-02390-RSL. Before: WALLACE, WARDLAW, and FISHER, Circuit Judges. WARDLAW, Circuit Judge: 1 Airborne Freight Corporation (Airborne) appeals from the district court's grant of summary judgment to Airborne's insurer, St. Paul Fire & Marine Insurance Company (St.Paul), in a breach of contract case. Airborne sought indemnification from St. Paul after it settled lawsuits with National Fulfillment, Inc. (NFI) and Sur La Table for lost and damaged…