Wanda Sell v. Nationwide Mutual Insurance Co

FILED

NOT FOR PUBLICATION AUG 14 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

WANDA A. SELL, individually and as No. 11-15492 Trustee of the Nancy A. Muhs Trust, DC No. 2:09 cv-1584 GEB Plaintiff - Appellant,

v. MEMORANDUM *

NATIONWIDE MUTUAL INSURANCE

COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, District Judge, Presiding

Argued and Submitted July 19, 2012 San Francisco, California

Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.

Plaintiff Wanda Sell is a trustee and senior beneficiary of a trust that

includes a ranch. Rigoberto Ocegueda is a residual beneficiary of the trust.

Ocegueda filed a petition in state court seeking an order removing Sell as trustee

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. and directing the trustee to provide him with possession and control of the ranch.

In the petition, Ocegueda alleged…

MEMORANDUM *

Plaintiff Wanda Sell is a trustee and senior beneficiary of a trust that includes a ranch. Rigoberto Ocegueda is a residual beneficiary of the trust. Ocegueda filed a petition in state court seeking an order removing Sell as trustee and directing the trustee to provide him with possession and control of the ranch. In the petition, Oce-gueda alleged that Sell failed to meet the trust’s conditions to receive the ranch. There is no evidence that Ocegueda had been physically present on or physically possessed the ranch since the trust was established. The trust held liability coverage on the ranch (as part of a Farmowner’s Policy) with Defendant Nationwide Insurance Company (“Nationwide”). The policy provides endorsements for both personal and advertising injury liability and property damage.

Sell tendered defense of Ocegueda’s suit to Nationwide. Nationwide refused to defend the suit. Sell then sued Nationwide in California state court in her personal capacity and in her capacity as trustee. Nationwide removed the case to federal *742 court under 28 U.S.C. § 1441 (b). 1 Sell alleges breach of contract and breach of the implied covenant of good faith and fair dealing;…

dissenting in part:

I respectfully dissent, in part. I conclude that Plaintiff Wanda Sell is not entitled to coverage under the insurance policy in question, issued by Defendant Nationwide Mutual Insurance Company, and thus I would affirm the judgment of the district court in full.

Sell should not be entitled to coverage under the “personal injury” provision. The relevant language provides coverage for claims of personal injury resulting from “[t]he wrongful eviction from, wrongful entry into, or invasion of the right of private occupation of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.”

There was simply no “eviction,” “entry,” or “invasion” (wrongful or not) into “the right of private occupation of a room, dwelling or premises that a person occupies” here, or any claim that such an event occurred. The person whose space was allegedly invaded was Rigoberto Ocegue-da, and there was no evidence or basis to infer that he ever physically occupied the ranch or any part of it, as the majority acknowledges, at 741-42.

But, the majority reasons, the policy language might be sufficiently ambiguous to provide coverage…