American Guarantee & Liability Insurance v. Lexington Insurance

FILED

NOT FOR PUBLICATION MAY 06 2013

MOLLY C. DWYER, CLERK

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

FOR THE NINTH CIRCUIT

AMERICAN GUARANTEE AND No. 11-17130

LIABILITY INSURANCE COMPANY,

D.C. No. 3:10-cv-03009-RS Plaintiff - Appellant,

v. MEMORANDUM *

LEXINGTON INSURANCE COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding

Argued and Submitted April 19, 2013 San Francisco, California

Before: SCHROEDER, SILVERMAN, and BEA, Circuit Judges.

Plaintiff American Guarantee and Liability Insurance Company appeals

from the district court’s holding on cross-motions for summary judgment that

Defendant Lexington Insurance Company did not have a duty to defend BBI

Construction in a lawsuit brought by an employee of RCM Fire Protection, David

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Trahan. We have jurisdiction under 28 U.S.C. § 1291 and now reverse…

MEMORANDUM *

Plaintiff American Guarantee and Liability Insurance Company appeals from the district court’s holding on cross-motions for summary judgment that Defendant Lexington Insurance Company did not have a duty to defend BBI Construetion in a lawsuit brought by an employee of RCM Fire Protection, David Trahan. We have jurisdiction under 28 U.S.C. § 1291 and now reverse and remand.

The insurance policy that Lexington Insurance issued to RCM extended coverage to additional insureds where required by written contract. The Letter of Intent between BBI and RCM satisfied this requirement. There is no genuine issue of material fact as to whether the letter was a binding contract to furnish documents evidencing general liability coverage naming BBI as an additional insured. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (“There is also no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion.”).

Moreover, BBI qualified as an additional insured under the insurance policy because Trahan’s injuries arose out of ROM’s ongoing operations performed for BBI. RCM was subcontracted by BBI to…

concurring in the judgment:

Although I concur in the judgment, I disagree with the majority’s reasoning. The Additional Insured Endorsement on RCM’s insurance policy extended insurance coverage to any entities to whom RCM promised such coverage in a “written contract.” The Letter of Intent is not supported by consideration, so it cannot be the written contract required for additional insured coverage of BBI. However, the Subcontract agreement between BBI and RCM triggers coverage of BBI as an additional insured on the Lexington policy: it is a valid written contract, and it requires RCM to provide additional insured coverage to BBI. That the Subcontract was executed after Trahan’s accident is immaterial under the terms of the Lexington policy.

1. In the Ninth Circuit, when parties refer to a document as a “letter of intent,” they generally intend the document “to be a nonbinding expression in contemplation of a future contract.” Rennick v. O.P.T.I.O.N. Care, 77 F.3d 309 , 315 (9th Cir.1996). However, “this is not to say that a letter of intent cannot be a contract. Regardless of the title, if the content shows that the parties intended to be bound, and the other requisites of a…