Gers, Inc. v. Atlantic Mutual Insurance

MEMORANDUM **

Plaintiff GERS, Inc., sued Defendants Atlantic Mutual Insurance Company and Federal Insurance Company to recover on separate insurance policies that Plaintiff held with each Defendant. The district court granted summary judgment to Defendants, and Plaintiff brings this timely appeal. On de novo review, Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004), we affirm.

1. Summary judgment in favor of Atlantic Mutual was proper on Plaintiffs claim that Atlantic Mutual breached a duty to defend Plaintiff in an arbitration proceeding involving Apex, Inc. Atlantic Mutual had a duty to defend Plaintiff from October 18, 2000, when Apex filed a complaint alleging defamation, to January 12, 2001, when the district court stayed the entire federal lawsuit for arbitration. See Montrose Chem. Corp. of Cal. v. Superior Court, 6 Cal.4th 287 , 24 Cal.Rptr.2d 467 , 861 P.2d 1153, 1157 (1993) (A “carrier must defend a suit which potentially seeks damages within the coverage of the policy.” (internal quotation marks omitted)). But Plaintiff stipulated to a judgment dismissing its claim related to that time period.

*496 Atlantic Mutual’s potential for coverage, and thus its duty to defend…