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Court of Appeals for the Ninth Circuit

St. Paul Mercury Ins. Co. v. Navigators Specialty Ins. Co.

14-56723·Judge: Bybee, Christen, Graber·Attorney: Abel Eric Aguilera, Attorney, Raymond Earl Brown, Esquire, The Aguilera Law Group, Costa Mesa, CA, Richard Anthony Semon, Esquire, Attorney, Bohm Matsen, LLP, Costa Mesa, CA, for Plaintiff-Appellant, Timothy P. Lindell, Gordon & Rees LLP, San Diego, CA, for Defendant-Ap-pellee0 citations

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FILED NOT FOR PUBLICATION FEB 14 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ST. PAUL MERCURY INSURANCE No. 14-56723 COMPANY, a Minnesota corporation, D.C. No. Plaintiff-Appellant, 8:13-cv-00802-JVS-AJW

v. MEMORANDUM* NAVIGATORS SPECIALTY INSURANCE COMPANY, fka NIC Insurance Company, a New York corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Submitted February 10, 2017** Pasadena, California

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

Plaintiff St. Paul Mercury Insurance Company and Defendant Navigators

Specialty Insurance Company both insured a subcontractor that was sued for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). performing faulty construction work on a retaining wall. Defendant denied that it

had a duty to defend the subcontractor. The subcontractor settled the underlying

case. Plaintiff paid the entire amount of the settlement and then initiated this

action, seeking declaratory relief, equitable subrogation, equitable contribution,

and equitable indemnity. The district court granted summary judgment to

Defendant, and Plaintiff timely appeals. On de novo review, Reese v. Travelers

Ins. Co., 129 F.3d 1056, 1059–60 (9th Cir. 1997), we affirm.

Defendant’s policy did not cover the loss. The underlying case against the

subcontractor alleged only damage caused by “subsidence,” as defined in the

policy. The policy excluded “subsidence” from coverage, including the duty to

defend.

Even if the initial complaint in the underlying case could be read to allege

property damage other than that caused by subsidence, Defendant’s investigation

clarified that the only damage Plaintiff claimed was damage caused by subsidence.

See Waller v. Truck Ins. Exch., Inc., 900 P.2d 619, 628 (Cal. 1995) (holding that,

when extrinsic facts eliminate the potential for coverage, an insurer may decline to

defend even if the complaint had suggested potential liability). That is, the

investigation eliminated any possibility of coverage.

AFFIRMED.

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