Ryan Nelson v. Navigators Insurance Co. , 624 F. App'x 599 ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 16 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RYAN NELSON, a single man, No. 13-17237
Plaintiff-counter-defendant - D.C. No. 2:12-cv-01620-SMM
Appellant,
v. MEMORANDUM*
NAVIGATOR INSURANCE
COMPANY, a foreign corporation;
NIC INSURANCE COMPANY,
a foreign corporation,
Defendants-counter-claimants
- Appellees.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted December 10, 2015
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: CLIFTON and OWENS, Circuit Judges and MOSKOWITZ,** Chief
District Judge.
Plaintiff Ryan Nelson appeals the district court’s grant of summary
judgment in favor of Defendants Navigators Insurance Company and NIC
Insurance Company. We affirm.
Ikon’s commercial general liability policy limited coverage to claims arising
out of damage to tangible property. On appeal, Nelson has not challenged the
district court’s holding that Ikon’s insurers had no duty to defend Ikon under the
text of the policy.
Nelson argues that even if Ikon was not entitled to coverage under the policy
terms, Arizona’s reasonable expectations doctrine entitled Ikon to coverage. In
order for the reasonable expectations doctrine to apply, the facts of the case must
be sufficiently similar to one of four narrow situations listed in Gordinier v. Aetna
Casualty & Surety Co., 742 P.2d 277, 283-84 (Ariz. 1987). Nelson argues that
each situation is applicable here.
The first Gordinier situation arises when a reasonably intelligent consumer
would not be able to understand the contract term even if he or she were to check
on his or her rights. Id. at 283. Ikon was not entitled to coverage under this
**
The Honorable Barry Ted Moskowitz, Chief District Judge for the
U.S. District Court for the Southern District of California, sitting by designation.
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situation because Defendants’ denial of coverage was predicated on the distinction
between tangible and intangible property, a distinction that should be clear and
unambiguous to a reasonably intelligent consumer. See Travelers Indem. Co. v.
State, 680 P.2d 1255, 1258 (Ariz. Ct. App. 1984) (“[T]he term ‘tangible property’
is not ambiguous and clearly excludes choses in action[.]”).
The second Gordinier situation arises when the insured lacks full and
adequate notice of the term in question, and the term is either unusual or
unexpected, or one that emasculates coverage. Gordinier, 742 P.2d at 284. Nelson
failed to show that the term defining property as tangible property was unusual or
unexpected, or one that emasculated apparent coverage. Id.The third and fourth Gordinier situations arise when some activity
“reasonably attributable to the insurer” created either an “objective impression of
coverage” on the part of the insured or would have created such an impression on
the part of a reasonable insured. Id. Nelson failed to produce evidence of any
specific conduct on the part of Defendants that led or should have led Ikon or its
agents to believe that the insurance policies covered claims arising out of damage
to intangible property. Moreover, Kara Poole’s deposition testimony supported the
district court’s finding that Defendants took no action to induce Poole to believe
that the policies provided coverage for spoliation claims. The third and fourth
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Gordinier situations therefore did not entitle Ikon to coverage in the underlying
state court action.
AFFIRMED.
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