S.J. Amoroso Construction Co. v. Executive Risk Indemnity, Inc.

MEMORANDUM **

S.J. Amoroso Construction Company, Inc. (“Amoroso”) appeals from the district court’s order granting summary judgment to Executive Risk Indemnity Inc. (“Executive Risk”) in its suit seeking coverage under a Directors & Officers insurance policy (“D&O Policy”). We have jurisdiction pursuant to 28 U.S.C. § 1291 . Reviewing de novo, United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 776 (9th Cir.2009), we reverse in part and affirm in part.

The district court erred by ruling that Amoroso was not entitled to coverage under the D&O Policy for claims stemming from Paul Mason’s alleged misrepresentations because he acted in his individual capacity, and not on behalf of the insured organization. California law provides that employees may be said to act within the scope of their employment, even when their actions are not authorized by their employer, so long as their actions are not so “unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” Farmers Ins. Group v. County of Santa Clara, 11 Cal.4th 992, 1003 , 47 Cal. Rptr.2d 478 , 906 P.2d 440 (1995) (internal citation omitted). Based…