Naaman Shepard v. Foremost Insurance Company Inc , 365 F. App'x 76 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NAAMAN SHEPARD, No. 09-35291
Plaintiff - Appellant, D.C. No. 2:08-cv-00434-RAJ
v.
MEMORANDUM *
FOREMOST INSURANCE COMPANY
INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted February 3, 2010
Seattle, Washington
Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.
Naaman Shepard (Shepard) appeals the district court’s judgment following a
bench trial that the marine insurance policy issued by Foremost Insurance
Company (Foremost) did not cover his loss.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The Washington proximate cause rule, see Wright v. Safeco Ins. Co. of
Am., 124 Wash. App. 263, 273-74 (Wash. Ct. App. 2004), and the federal
proximate cause rule, see Commodities Reserve Co. v. St. Paul Fire & Marine Ins.
Co., 879 F.2d 640, 643 (9th Cir. 1989), are substantially similar. Therefore, any
error in applying the Washington law was harmless. See Coutee v. Barington
Capital Group, L.P., 336 F.3d 1128, 1134-35 (9th Cir. 2003) (applying harmless
error to a choice of law decision).
2. The policy exclusion for “lack of reasonable care or due diligence in the
maintenance of your watercraft” is unambiguous and must be enforced. See
Conrad v. Ace Prop. & Cas. Ins. Co., 532 F.3d 1000, 1005 (9th Cir. 2008).
3. The district court did not clearly err in finding that the efficient proximate
cause of the loss was a lack of reasonable and proper maintenance because trial
testimony supports the finding. See Exxon Co. v. Sofec, Inc., 54 F.3d 570, 576 (9th
Cir. 1995).
4. Shepard’s reliance on Founders’ Ins. Co. v. Rogers, 305 F.2d 944 (9th
Cir. 1962) is inapt. Rogers was decided under English law and a policy provision
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providing that the vessel owner discharged his responsibility under the policy by
delegating the maintenance responsibility to the master. See id. at 945.
AFFIRMED.
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