1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ONE CALL MEDICAL, INC., et al., No. 2:17-cv-01385-KJM-CKD 12 Plaintiffs, 13 v. ORDER 14 NATIONAL FIRE & MARINE

INSURANCE COMPANY,

15 Defendant. 16

17 18 In this insurance coverage case, defendant moves for summary judgment of all of 19 plaintiffs’ claims. For the reasons below, the court GRANTS defendant’s motion and 20 DISMISSES the case. 21 I. BACKGROUND 22 Employers Insurance Group (“Employers”) is an insurer that issues policies 23 covering workers’ compensation risks. Undisputed Material Fact (UMF) 1, ECF No. 17-2. 24 Employers contracted with plaintiffs One Call Medical, Inc. and Zone Care USA of Delray, LLC 25 (collectively “One Call”) to have One Call provide workers’ compensation services to 26 Employers’ clients, including the arrangement of transportation for injured workers. UMF No. 2. 27 One Call’s parent company, Coral Acquisition, Inc., purchased a managed care errors and 28 ///// 1 omissions liability insurance policy for itself and its subsidiaries from defendant National Fire & 2 Marine Insurance Company (“National Fire”). UMF No. 3. 3 On September 6, 2016, One Call arranged for Tyrone Shacklefoot, an injured 4 worker covered under Employers, to be transported to his medical appointment in a Toyota 5 Sienna van taxi (“the van”), pursuant to One Call’s agreement with Employers. UMF No. 5–6. 6 The van was neither owned nor operated by One Call. Opp’n, ECF No. 20, at 151 (citing Mot. at 7 1–2; UMF 6, 8, 14). While transporting Mr. Shacklefoot back home from his appointment, the 8 van was involved in a five-vehicle collision; Mr. Shacklefoot was severely injured and rendered a 9 quadriplegic as a result. See UMF No. 7–8; Employers Demand Letter at 55. Employers 10 demanded indemnification from One Call with respect to the resulting costs (hereinafter the 11 “Employers Claim”). Demand Letter at 55. Before the court is One Call’s action against its 12 insurer, National Fire, in which One Call claims National Fire is obligated to defend and 13 indemnify One Call for the Employers Claim. Mot., ECF No. 17-1, at 7. 14 A. Employers’ Demand Letter and Arbitration Claims Against One Call 15 On September 30, 2016, Employers sent a demand letter to One Call seeking 16 “indemnification against all increased costs and benefits it is obligated to pay to Mr. Shacklefoot 17 as a result of the injuries he sustained in the cab ride on September 6, 2016.” Not. of Removal, 18 ECF No. 1, Ex. 1 (“Compl.”) ¶ 40; see also Mot., Ex. D, ECF No. 17-5 (“Demand Letter”), at 55. 19 When One Call refused to meet Employers’ demand, the parties entered arbitration over the 20 dispute, as required by the “Master Services Agreement” between them. See Alternative Dispute 21 Resolution Statement of Claim (“ADR Claim”), ECF No. 17-5, Ex. T. Employers’ statement of 22 its arbitration claim, dated August 2017, describes the Shacklefoot accident, ADR Claim ¶¶ 20– 23 24, and alleges the following claims against One Call: (1) fraudulent inducement, (2) negligent 24 misrepresentation, (3) breach of contract for failure to indemnify, (4) breach of contract for 25 failure to follow same service standards for all customers, (5) breach of contract for failure to 26 ///// 27

28 1 Citations to page numbers refer to the ECF pagination, not the document’s internal pagination. 1 permit audit, and (6) breach of contract for failure to maintain insurance coverage. ADR Claim 2 ¶¶ 35–82. 3 B. One Call’s Claim Against National Fire 4 On May 11, 2017, One Call filed the operative complaint here, which alleges 5 claims for declaratory relief and breach of contract against National Fire, and seeks legal defense 6 costs and indemnity from National Fire for Employers’ claim against One Call. Compl. at 12–14. 7 One Call’s complaint, filed before Employers’ statement of arbitration existed, only refers to the 8 claims made in the demand letter, which it terms the “Employers Claim.” See Compl. ¶ 40 (“All 9 claims asserted in the Demand Letter are hereinafter collectively referred to as the ‘Employers 10 Claim.’”). The more specific claims asserted in the arbitration—namely, fraudulent inducement, 11 negligent misrepresentation, breach of contract for failure to follow same service standards for all 12 customers, breach of contract for failure to permit audit, and breach of contract for failure to 13 maintain insurance coverage—are not part of the “Employers Claim” as it is defined in the 14 complaint. See id. 15 The complaint alleges that One Call forwarded Employers’ demand letter to 16 National Fire and requested coverage for the Employers Claim under the managed care and 17 omissions liability insurance policy One Call purchased from National Fire (“the Berkshire 18 policy”). Compl. ¶ 41. National Fire denied One Call’s claim, citing the policy’s automobile 19 exclusion clause, which provides: 20 Section 9 Exclusions 21 The Insurer will not be liable to make any payment for Loss in connection with any Claim made against any Insured: 22 . . . D. Motor Vehicle 23 based upon, arising out of, or attributable to, or directly or 24 indirectly resulting from or in any way involving the actual or alleged ownership, operation, use, maintenance, loading or 25 unloading of any motor vehicle, trailer, watercraft, aircraft or helipad. 26 27 UMF No. 12; Compl. ¶¶ 26, 43. One Call resubmitted its claim for coverage, asserting that the 28 Employers Claim was “for negligent management of Mr. Shacklefoot’s transportation,” and 1 therefore the exclusion did not apply. Compl. ¶ 44. National Fire denied the claim again. Id. 2 ¶ 45. 3 Based on these facts, One Call pleaded the following claims against National Fire: 4 (1) declaratory relief that “the Employers Claim qualifies for coverage under the Berkshire 5 Policy” and 6 [t]he Motor Vehicle exclusion in the Berkshire Policy does not apply to exclude coverage because the Employers Claim is not one for 7 negligent operation of motor vehicle. Instead, it alleges negligent management of Mr. Shacklefoot’s transportation needs, a 8 professional task encompassed by the Employers Contract. 9 Id. ¶¶ 48, 49,2 and (2) breach of the Berkshire policy contract, id. ¶ 56. 10 On October 17, 2018, National Fire moved for summary judgment on each of One 11 Call’s claims based on the application of the Motor Vehicle Exclusion contained in plaintiffs’ 12 policy. Mot. at 7–8. Plaintiffs opposed, ECF No. 20, and defendant filed a reply, ECF No. 23. 13 The court heard oral argument on January 11, 2019. For the following reasons, the court 14 GRANTS defendant’s motion for summary judgment. 15 II. LEGAL STANDARD 16 A court will grant summary judgment “if . . . there is no genuine dispute as to any 17 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 18 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 19 resolved only by a finder of fact because they may reasonably be resolved in favor of either 20 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).3 21 The moving party bears the initial burden of showing the district court “that there 22 is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 23 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish 24 that there is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio

25 2 The complaint also references the “Assumed Contract exclusion,” but at hearing the parties 26 agreed that this exclusion is not relevant to the instant motion. See Compl. ¶ 50.

27 3 Rule 56 was amended, effective December 1, 2010. However, it is appropriate to rely on cases decided before the amendment took effect, as “[t]he standard for granting summary judgment 28 remains unchanged.” Fed. R. Civ. P. 56 advisory committee note to 2010 amendment. 1 Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must “cit[e] to particular 2 parts of materials in the record . . .; or show [] that the materials cited do not establish the absence 3 or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 4 support the fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[the 5 nonmoving party] must do more than simply show that there is some metaphysical doubt as to the 6 material facts”). Moreover, “the requirement is that there be no genuine issue of material fact 7 . . . . Only disputes over facts that might affect the outcome of the suit under the governing law 8 will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48 9 (emphasis in original). 10 In deciding a motion for summary judgment, the court draws all inferences and 11 views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 12 587–88 (citation omitted); Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). “Where the 13 record taken as a whole could not lead a rational trier of fact to find for the non-moving party, 14 there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of 15 Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). 16 III. REQUEST FOR JUDICIAL NOTICE 17 Defendant filed a request for judicial notice in conjunction with its motion for 18 summary judgment. Req., ECF No. 18. Defendant requests the court take judicial notice of: 19 (1) the complaint filed in Sacramento County Superior Court, case number 2017-00208660, 20 Tyrone Shacklefoot v. One Call Care Management, et al. (Mot., Ex. G); (2) the complaint in 21 intervention for reimbursement filed in the Sacramento County Superior Court for case number 22 2017-00208660, Tyrone Shacklefoot v. One Call Care Management, et al. (Mot., Ex. H); (3) 23 excerpts from the deposition of the van driver, Mansour Aghdam, taken February 21, 2018 (Mot., 24 Ex. M); and (4) excerpts from Tyrone Shacklefoot’s deposition taken on February 21, 2018 25 (Mot., Ex. N). Id. Plaintiffs have not opposed this request. 26 According to Rule 201(c) of the Federal Rules of Evidence, the court may take 27 judicial notice of matters that “can be accurately and readily determined from sources whose 28 accuracy cannot reasonably be questioned,” including records comprising publicly filed 1 documents, such as state court records. In re Qualcomm Anti-Trust Litigation, 292 F. Supp. 3rd 2 948, 963–64 (N.D. Cal. 2017) (quoting Fed. R. Evid. 201(b)). Because the existence of the 3 documents and accuracy of the copies provided by defendant are not in dispute, the court takes 4 judicial notice of the existence and content of the documents requested, but does not take judicial 5 notice of the truth of the statements contained therein. 6 IV. DISCUSSION 7 In its demand letter, Employers claimed One Call is required to indemnify it 8 against “all increased costs and benefits it is now obligated to pay to Mr. Shacklefoot as a result 9 of the injuries he suffered in the cab ride,” because Mr. Shacklefoot’s injuries were attributable to 10 One Call’s negligence. Demand Letter at 55. Specifically, Employers claimed One Call did not 11 “properly assess[] the medical transportation needs of Mr. Shacklefoot” and failed to “obtain the 12 written consent for the assignment of its duties [to transport Mr. Shacklefoot] to Diamond Cab.” 13 Id. National Fire argues it is not required to defend or indemnify One Call for these claims 14 because the claims arise out of an automobile accident, and the Berkshire policy contains a motor 15 vehicle exclusion clause. As noted above, One Call’s policy from National Fire provides: 16 Section 9 Exclusions The Insurer will not be liable to make any payment for Loss in 17 connection with any Claim made against any Insured: 18 . . . D. Motor Vehicle 19 based upon, arising out of, or attributable to, or directly or indirectly resulting from or in any way involving the actual or 20 alleged ownership, operation, use, maintenance, loading or unloading of any motor vehicle, trailer, watercraft, aircraft or 21 helipad. 22 UMF No. 12. Defendant argues plaintiffs’ case cannot survive as a matter of law, 23 because National Fire’s insurance policy does not cover the claims at issue, and no 24 genuine issues of material fact exist. Id. at 7. 25 A. Choice of Law 26 Because this court has diversity jurisdiction over plaintiffs’ state-law contract 27 claims, the court applies the choice-of-law rules of the forum state, California. See Arno v. Club 28 1 Med, Inc., 22 F.3d 1464, 1467 (9th Cir. 1994). California uses two choice-of-law tests. The first 2 is statutory, whereby “[a] contract is to be interpreted according to the law and usage of the place 3 where it is to be performed; or, if it does not indicate a place of performance, according to the law 4 and usage of the place where it is made.” Cal. Civ. Code § 1646. Neither party provides the 5 court with information on whether the contract at issue prescribed a place of performance, 6 although defendant notes the policy was issued to One Call’s parent company in Florida. See 7 Mot. at 15 n.6. 8 California’s second test is the common-law “governmental interest test.” Costco 9 Wholesale Corp. v. Liberty Mut. Ins. Co., 472 F. Supp. 2d 1183, 1198 (S.D. Cal. 2007) (citation 10 omitted). The first step in the governmental interest test is to “identify the applicable rule of law 11 in each potentially concerned state and [ ] show [whether] it materially differs from the law of 12 California.” Id. (citing Wash. Mut. Bank, FA v. Superior Court, 24 Cal. 4th 906, 919 (Cal. 13 2001)). Defendants observe that Florida law “appears to be in alignment with California law on 14 application of a Motor Vehicle Exclusion such as the one found in the National Fire & Marine 15 Policy, so there is no conflict.” Mot. at 15 n.6 (citing Sparta Ins. v. Colareta, 990 F. Supp. 2d 16 1357, 1366–67 (S.D. Fla. 2014)). Plaintiffs do not challenge this assertion. Because the parties 17 appear to agree that Florida law does not materially differ from California law, and the court 18 agrees, the court applies California law here. Compare Sparta Ins. v. Colareta, 990 F. Supp. 2d 19 at 1366–67 (describing Florida’s concurrent-cause doctrine, which permits coverage when loss 20 attributable to multiple causes, as long as one cause is an insured risk, and “the multiple causes of 21 injury are not related and dependent, and involve a separate and distinct risk.”), with Allstate Ins. 22 Co. v. Jones, 139 Cal. App. 3d 271, 277 (Ct. App. 1983) (describing California’s concurrent 23 proximate cause doctrine, explaining coverage exists despite automobile exclusion when non- 24 auto-related (covered) conduct “exists independently” of any automobile use (non-covered 25 conduct)). 26 B. Application of Automobile Exclusion 27 The California Supreme Court has provided guidance regarding how to interpret 28 automobile exclusion clauses similar to the one at hand in State Farm Mutual Automobile 1 Insurance Co. v. Partridge, 10 Cal. 3d 94 (1973). In Partridge, the insured negligently filed 2 down the trigger mechanism of his pistol so that the gun would have “hair trigger action.” 3 Partridge, 10 Cal. 3d at 97. With the gun in tow, the insured negligently drove his vehicle into 4 rough terrain, hitting a bump and causing the pistol to discharge and injure a passenger. Id. at 98. 5 The insured’s homeowner policy included an automobile exclusion that excluded coverage for 6 “bodily injury . . . arising out of the . . . use of . . . any motor vehicle.” Id. at 98. The court held 7 the exclusion did not preclude coverage, because the insured’s negligence in altering the pistol 8 was a cause of the injury concurrent with the negligent use of the automobile. Id. at 103. 9 Because “the insured’s negligent modification of the gun suffice[d], in itself, to render him fully 10 liable for the resulting injuries,” his insurance provider could not avoid coverage simply because 11 one of the two concurrent causes of the injury involved an automobile. Id. at 103–05. 12 California courts have interpreted Partridge to mean an automobile exclusion will 13 not apply “only if ‘the liability of the insured [1] arises from his non-auto-related conduct, and 14 [2] exists independently of any “use” of his car . . . .’” Allstate Ins. Co. v. Jones, 139 Cal. App. 15 3d at 277 (quoting Partridge, 10 Cal. 3d at 103); accord Safeco Ins. Co. v. Gilstrap, 141 Cal. 16 App. 3d 524, 527 (Ct. App. 1983). Whether liability exists independently of automobile use 17 depends on whether the liability can be “disassociated from the use of the vehicle itself” or 18 whether it is “dependent upon and related to the use of the vehicle” such that it “cannot be 19 deemed an independent act” that falls outside the exclusion. Gilstrap, 141 Cal. App. 3d at 528 20 (citations omitted). 21 1. Application of Partridge 22 Defendants argue that the Employers Claim, for which One Call seeks coverage, is 23 “based on conduct and injuries that clearly and inextricably resulted from the use of a motor 24 vehicle,” and therefore summary judgment is appropriate. Reply at 5. Plaintiffs counter that One 25 Call’s “alleged acts of negligence are independent concurrent causes of the underlying claim” and 26 should therefore be covered. Opp’n at 11. Defendants are correct. Even though One Call’s 27 actions in contracting with Diamond Cab could be characterized as “non-auto-related conduct,” 28 ///// 1 One Call’s conduct does not “exist independently of any ‘use’ of [the] car” and is not capable of 2 being “disassociated from the use of the vehicle itself.” Gilstrap, 141 Cal. App. 3d at 527–28. 3 For support, defendants cite Evanston v. Atain Specialty, 254 F. Supp. 3d 1150 4 (N.D. Cal. 2017), in which the court enforced an automobile exclusion “broader than in Partridge 5 and its progeny.” Id.at 1164. In Evanston, the liability at issue arose out of an automobile 6 accident caused by two concurrent sources of negligence: one insured employee, Hernandez, 7 negligently directed traffic, allowing pedestrians to cross the intersection, causing a second 8 employee, Keyarts, who was negligently driving his motorcycle, to hit a crossing pedestrian. Id. 9 at 1153. The court found that liability flowing from Hernandez’s non-auto-related negligence fell 10 under the automobile exclusion because (1) a motorcycle played an “active role” in causing the 11 damages and (2) Hernandez’s non-vehicular conduct (directing traffic) “was negligent because it 12 exposed [the victim] to the danger of negligent automobile use.” Id. at 1162–63 (citing Fire Ins. 13 Exch. v. Vasquez, 2017 WL 1173730, at *5 (Cal. Ct. App. Mar. 29, 2017)). 14 Here, an automobile played an “active role” in causing Mr. Shacklefoot’s injuries, 15 giving rise to the Employers Claim for which One Call seeks indemnification. See Compl. ¶ 40 16 (“All claims asserted in the Demand Letter are hereinafter collectively referred to as the 17 “Employers Claim.”); Demand Letter at 55. One Call’s alleged negligence in arranging for an 18 inappropriate vehicle for Mr. Shacklefoot was negligent because it exposed Mr. Shacklefoot to 19 the automobile accident that caused his injuries. As such, the negligence for which One Call 20 seeks coverage, though it has a non-vehicular component, is not independent from the injury- 21 causing automobile use, and the motor vehicle exclusion applies. 22 2. Application of Essex and Scottsdale 23 Plaintiffs argue that National Fire’s motion relies on an “overly-broad 24 interpretation” of the motor vehicle exclusion, which is unsupported by the case law, and that 25 National Fire’s interpretation creates an “impermissible result not within the reasonable 26 expectations of the insured.” Opp’n at 5 (citation omitted). To support this argument, plaintiffs 27 rely on two California cases: Essex Ins. Co. v. City of Bakersfield, 154 Cal. App. 4th 696 (2007) 28 ///// 1 and Scottsdale Indemnity Co. v. Lexington Ins. Co., No. EDCV 12-00017 VAP (OPx), 2012 WL 2 6590716 (C.D. Cal. Dec. 18, 2012). The court addresses each case in turn. 3 Plaintiffs cite Essex for the proposition that the motor vehicle exclusion must be 4 read to include some limitation on its scope, because the “average layperson” would not 5 understand the clause to “limit coverage in any cases ‘involving automobiles by anyone 6 anywhere’ . . . .” Opp’n at 7 (citing Essex, 154 Cal. App. 4th at 707). Specifically, plaintiffs 7 argue the exclusion should not be interpreted to apply here, because the taxi involved in the 8 accident was not owned or operated by One Call. Opp’n at 5–9. 9 Essex involved a commercial general liability (CGL) insurance policy purchased 10 by the City of Bakersfield to cover occurrences during a special event. Essex, 154 Cal. App. 4th 11 at 701. The policy contained an auto exclusion that excluded coverage for “‘[b]odily injury’ or 12 ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any 13 aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured.” Id. The 14 policy also included an additional section modifying the original auto exclusion, stating, “This 15 insurance does not apply to ‘bodily injury’ or ‘property damage’ arising out of, caused by or 16 contributed to by the ownership, non-ownership, maintenance, use or entrustment to others of any 17 ‘auto.’’” Id. at 701–02. 18 An automobile accident occurred outside the event, and the victims sued the City, 19 claiming the way the City controlled event-related traffic created a “dangerous condition” that 20 caused their accident. Id. at 609–701. The City demanded its insurer provide a defense and 21 indemnity, and the insurer refused, citing the auto exclusion. Id. at 702. The court found the 22 automobile exclusion did not apply to the off-site accident based, in part, on the way the 23 exclusion was written. Id. at 708. Because the original exclusion was limited to automobiles 24 “owned or operated by or rented or loaned to any insured,” and the language in the exclusion 25 modification was “so vague,” one would reasonably assume it was essentially repetitive of the 26 original exclusion. Id. at 707. Moreover, the court noted, when read in the context of the other 27 exclusions in the policy, it was reasonable to deduce that the auto exclusions were meant to apply 28 ///// 1 only to cases involving acts of the insured or its agents, because the policy’s other exclusions only 2 involved those types of situations. Id. at 708. 3 Such is not the case here. The motor vehicle exclusion in the Berkshire policy is 4 not limited to automobiles owned or operated by the insured. Rather, it clearly states it excludes 5 from coverage liability that is “based upon, arising out of, . . . or in any way involving the actual 6 or alleged ownership, operation, use, maintenance, loading or unloading of any motor vehicle 7 . . . .” UMF No. 12. An average layperson would not assume the exception was limited to motor 8 vehicles owned or operated by the insured based on the language “any motor vehicle.” Moreover, 9 unlike the policy in Essex, the Berkshire policy’s other exclusions are not all limited to situations 10 involving only the insured. For example, the exclusion immediately preceding the motor vehicle 11 exclusion is for “any actual or alleged damage to or destruction of any tangible property . . . .” 12 Mot., Ex. B (“Berkshire Policy”), ECF No. 17-5, at 24. The reasoning applied in Essex is not 13 applicable to the motor vehicle exclusion at issue here. 14 In Scottsdale, the parties’ dispute arose when a hired security officer caused a fatal 15 accident by negligently securing an intersection to allow a funeral procession to travel through it. 16 Scottsdale Indemnity Co., 2012 WL 6590716, at *1. None of the vehicles involved in the 17 accident was owned or operated by the insured. Id. at 3. The insurance policy at issue included 18 an automobile exclusion that applied to liability arising out of the “use” of any “auto” “owned or 19 operated by or rented or loaned to any insured.” Id. at 4. The court found the exclusion did not 20 apply, because the insured’s security officer was not seated on his motorcycle at the time of the 21 collision, so the motorcycle was only incidental to the insured’s negligent conduct, and therefore 22 the loss “did not arise out of the use of the covered auto.” Id. at 7. 23 Scottsdale is also distinguishable from the case here. Plaintiffs attempt to 24 analogize One Call’s alleged negligence in arranging Mr. Shacklefoot’s transportation to the 25 Scottsdale security officer’s negligence in stopping traffic, arguing that both are too far removed 26 from the “use” of a vehicle to fall under an automobile exception. Opp’n at 10–11. However, 27 plaintiffs omit a key distinguishing factor: the automobile exception in Scottsdale was expressly 28 limited to the use of automobiles owned or operated by the insured. Scottsdale, 2012 WL 1 6590716, at *4. The court’s decision, therefore, turned on whether the insured security officer 2 was using his motorcycle when the accident occurred, because the exclusion only applied to that 3 automobile. In this case, the policy includes a much broader exclusion, which by its terms applies 4 to “any” automobile. Thus, even assuming for argument’s sake that One Call’s arranging 5 transportation is not considered “use” of an automobile, the exception would still apply as long as 6 One Call’s liability arose out of another party’s use of an automobile. 7 A recent case out of this district analyzed both Essex and Scottsdale and came to 8 the same conclusion; while this court is not bound by a colleague’s decision, it finds this other 9 case helpful here. In Maxum Indem. Co. v. Kaur, 356 F. Supp. 3d 987 (E.D. Cal. 2018), the court 10 concluded that, when the “plain language of the contract is not ambiguous,” a “broad auto 11 exclusion[]” is enforceable, and “limiting an auto exclusion to autos that have a connection to the 12 insured is inappropriate when the language has no such limitation.” Id. at 1003–04. In Maxum, 13 the court analyzed a motor vehicle exclusion, nearly identical to the Berkshire policy’s provision, 14 providing as follows: 15 ‘Bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, operation, use, chartering, renting, entrustment to 16 others, ‘loading or unloading’ of any aircraft, ‘auto’ or watercraft, including the supervision, hiring, employment, training or 17 monitoring of, or failure to warn, anyone in connection with the ownership, maintenance, operation, use, chartering, renting, or 18 entrustment to others of any aircraft, ‘auto’ or watercraft. 19 Id. at 991. The dispute in Maxum arose out of an accident involving a tractor-trailer. Kaur, the 20 defendant, did not own the vehicle, but had trained the driver of the vehicle. Id. at 990. Maxum 21 Indemnity undertook Kaur’s defense in the suit arising out of the accident, but later argued the 22 claim was not covered, citing the automobile exclusion. Id. at 992. Though the court noted “it is 23 rare for a defendant to be sued for an automobile accident when the defendant had no connection 24 with any of the vehicles involved,” it ultimately rejected Kaur’s argument that the exclusion 25 should be limited to automobiles owned or operated by the insured. Id. at 1002–04 (quoting 26 Essex, 154 Cal. App. 4th at 710). Given the unambiguous language of the exclusion, the court 27 found the policy did not cover plaintiff’s liability. Id. at 1004. 28 ///// 1 The situation at bar is analogous. The language of the auto-exclusion here plainly 2 does not limit the exclusion to vehicles owned or operated by the insured. See UMF No. 12. 3 Thus, even though One Call had only an attenuated connection to the vehicle at issue, the 4 exclusion is enforceable, and it eliminates coverage for the Employers Claim. 5 C. Exclusion Conspicuous, Plain and Clear 6 In California, “to be enforceable, any provision that takes away or limits coverage 7 reasonably expected by an insured must be conspicuous, plain and clear.” Haynes v. Farmers Ins. 8 Exchange, 32 Cal. 4th 1198, 1204 (2004) (internal quotation marks and citation omitted). This 9 means “any such limitation must be placed and printed so that it will attract the reader’s 10 attention” and “stated precisely and understandably, in words that are part of the working 11 vocabulary of the average layperson.” Id. (citations omitted). 12 Defendants have introduced Section (9)(D) of the National Fire & Marine policy 13 under which plaintiffs are claiming coverage of Employers’ claims, which contains the motor 14 vehicle exclusion. See Berkshire Policy at 24. Plaintiffs do not challenge the accuracy or 15 admissibility of this evidence. See Opp’n to UMF 12, ECF No. 20-1. Defendants argue Section 16 (9)(D) satisfies California’s conspicuous language standard because it is located near the 17 beginning of the policy and it is introduced by two bold headings: “Exclusions” and “Motor 18 Vehicle.” Mot. at 23–24 (citing Dominguez v. Fin. Indem. Co., 183 Cal. App. 4th 388, 396 19 (2010) (finding limiting language is conspicuous where it is “placed and printed so that [they] 20 will attract the reader’s attention”); Haynes, 32 Cal. 4th at 1205 (finding exclusion not 21 conspicuous, plain and clear where “there is nothing in the heading to alert a reader that it limits 22 permissive user coverage, nor anything in the section to attract a reader's attention to the limiting 23 language”)). Plaintiffs also do not challenge this assertion. See Opp’n at 18. Defendants have 24 met their burden to show the exclusion was conspicuous. 25 Defendant also argues the exclusion is “plain and clear,” because it is “stated 26 precisely and understandably, in words that are part of the working vocabulary of the average 27 layperson.” Mot. at 24; see also Haynes, 32 Cal. 4th at 1211. Plaintiffs challenge this assertion, 28 arguing “[t]he auto exclusion in the instant case would not have been understood by a layperson 1 to exclude coverage ‘involving automobiles by anyone anywhere,’ even including automobiles 2 driven by independent contractors who had an independent contractual duty.” Opp’n at 18. 3 However, it is undisputed that the policy states: “the insurer will not be liable for any Loss in 4 connection with any Claim made against any insured: . . . Based upon, arising out of, or 5 attributable to . . . the actual or alleged ownership, operation, [or] use . . . of any motor vehicle 6 . . . .” UMF No. 12 (citing Berkshire Policy at 23–24). This language is broad, but it is not 7 unclear; it uses a simple vocabulary and is plainly stated. Courts have enforced automobile 8 exclusions with similarly broad language. See Maxum Indem. Co., 356 F. Supp. 3d at 1004 9 (finding clear and conspicuous an exclusion providing the policy “does not apply to... ‘[b]odily 10 injury’. . . arising out of the . . . use . . . of any . . . ‘auto’ . . . .”); Evanston, 254 F. Supp. 3d at 11 1157 (enforcing clause that excluded coverage for “‘bodily injury’ . . . arising out of or in 12 connection with any ‘auto’ . . . . whether or not owned . . . by any insured.”); Farmers Ins. Exch. 13 v. Superior Court, 220 Cal. App. 4th 1199, 1202 (2013), as modified on denial of reh’g (Oct. 28, 14 2013) (enforcing exclusion of “bodily injury that . . . results from the ownership, maintenance, 15 use, loading or unloading of . . . motor vehicles . . . .”); but see Partridge, 10 Cal. 3d at 99 16 (noting, in dicta, that liability under policy including exclusion for “bodily injury . . . arising out 17 of the . . . use of . . . any motor vehicle,” “could possibly be predicated upon the ambiguity of the 18 exclusionary clause in the context of the instant accident, [but] we need not rely upon this 19 ground”). Defendants have met their burden to show the exclusion is conspicuous, plain and 20 clear. 21 V. CONCLUSION 22 Given the undisputed material facts and the text of the policy in question, the court 23 finds that, as a matter of law, the motor vehicle exclusion applies to the Employers Claims against 24 One Call for which One Call seeks coverage by National Fire. Therefore, National Fire properly 25 denied coverage. Drawing all inferences and viewing all evidence in the light most favorable to 26 ///// 27 ///// 28 ///// 1 plaintiffs, there are no genuine issues of material fact in this case. As such, defendant’s motion 2 for summary judgment is GRANTED. This case is DISMISSED. 3 IT IS SO ORDERED. 4 DATED: August 2, 2019. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28