Northrop Grumman v. Factory Mutual Ins. ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHROP GRUMMAN CORPORATION,  No. 07-56760
Plaintiff-Appellee, D.C. No.
v. CV-05-08444-DDP
FACTORY MUTUAL INSURANCE ORDER
COMPANY, AMENDING
Defendant-Appellant. OPINION AND
 DENYING
PETITION FOR
REHEARING AND
PETITION FOR
REHEARING EN
BANC AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
July 18, 2008—Pasadena, California
Filed August 14, 2008
Amended April 2, 2009
Before: Cynthia Holcomb Hall and Pamela Ann Rymer,
Circuit Judges, and Stephen M. McNamee,* District Judge.
Opinion by Judge Hall
*The Honorable Stephen M. McNamee, United States District Judge for
the District of Arizona, sitting by designation.
3925
3928 NORTHROP GRUMMAN v. FACTORY MUTUAL INS.
COUNSEL
Kirk A. Pasich, Esq., Los Angeles, California, for the
plaintiff-appellee.
Peter Abrahams, Esq., Encino, California, for the defendant-
appellant.
ORDER
The Opinion filed on August 14, 2008, is amended as fol-
lows:
Slip Opinion page 10671, line 19, insert the following text:
“We will ‘not artificially create ambiguity where none exists.
If a reasonable interpretation favors the insurer and any other
interpretation would be strained, no compulsion exists to tor-
ture or twist the language of the policy.’ ” Evans v. Safeco
Life Ins. Co., 916 F.2d 1437, 1441 (9th Cir. 1990) (quoting
Allstate Ins. Co. v. Ellison, 757 F.2d 1042, 1044 (9th Cir.
1985)).
Page 10672, line 6, replace “Sher v. Lafayette Ins. Co.,
____So. 2d. ___” with “Sher v. Lafayette Ins. Co., 988 So. 2d.
186”.
Page 10673, line 1, insert the following text (beginning a
new paragraph): “Furthermore, the dictionary definition of
flood comports with the lay understanding of the term. Most
NORTHROP GRUMMAN v. FACTORY MUTUAL INS. 3929
individuals would describe the inundation caused by a hurri-
cane as a ‘flood.’ See E.M.M.I. Inc. v. Zurich American Ins.
Co., 32 Cal. 4th 465, 471 (2004) (describing ‘elementary rules
of contract interpretation that policy language is interpreted in
its ordinary and popular sense and as a layman would read it
and not as it might be analyzed by an attorney or an insurance
expert’ (internal citations ommitted)); compare MacKinnon,
73 P.3d 1205 (finding ‘pollution’ ambiguous when dictionary
definition did not agree with the lay person’s understanding
and applying the dictionary definition would lead to absurd
results).”
Page 10673, line 20, delete: “To begin with, we are not
convinced by Northrop’s argument that the primary and
excess policies must be construed as one document.”
Page 10673, line 26, replace “the primary policy may be
consulted in interpreting the excess policy, we decline to treat
the two documents as one contract.” with “the primary policy
must be consulted in interpreting the excess policy, see Cal.
Civ. Code § 1642, we decline to treat the two documents as
only one contract.”
Page 10674, line 7, replace “that an ambiguity exists” with
“that an ambiguity must exist”.
Page 10674, line 14, replace “policy.” with “policy,
because the insured’s interpretation was not reasonable under
either definition.”
Page 10674, line 16, insert the following text: “Similarly,
under either definition of flood, Northrop’s limited interpreta-
tion of the broad term ‘flood,’ as excluding wind-driven
flooding, is not reasonable.”
Page 10674, line 17, move “Northrop relies on Powerine
Oil” to begin a new paragraph.
3930 NORTHROP GRUMMAN v. FACTORY MUTUAL INS.
Page 10676, line 13, insert the following text: “Here,
because the other terms used to describe flood were merely
descriptive of floods, or synonymous for flood, rather than
separate exclusions, the absence of ‘whether driven by wind
or not’ is not rendered surplusage in the primary policy, nor
is it necessary to the excess policy’s definition, where the
term flood is sufficiently broad to encompass the damage
Northrop suffered. See Brodkin v. State Farm Fire & Casu-
alty Co., 217 Cal.App.3d 210, 217 (Ct. App. 1990) (holding
exclusion applied to damage suffered by insureds, though the
synonym ‘corrosion’ or other descriptors was not included,
because the plain meaning of the exclusion of ‘leakage or
seepage,’ ‘wear, tear’ and ‘deterioration’ covered the damage
suffered); see also Smyth, 7 Cal. Rptr. 2d at 697 (holding that
definition of ‘business’ in primary policy as ‘trade, profes-
sion, or occupation’ did not create an ambiguity, though
‘business’ was defined in the umbrella policy as ‘trade, occu-
pation, profession or business’).”
Page 10676, line 13, move “In addition” to begin a new
paragraph.
Page 10676, line 17, insert the following text: “Neither has
Northrop cited any cases holding that hurricane storm surge
is not within the meaning of a flood exclusion, or holding that
the phrase ‘whether driven by wind or not’ is necessary to sig-
nify that storm surge is included within a flood exclusion.”
Page 10677, line 18, insert the following text: “Moreover,
even the definition of Named Windstorm noted that such
storms can cause flood damage, only strengthening the argu-
ment that the lay interpretation of flood includes flooding
caused by storm surge.”
Page 10678, line 1, delete the following text: “Neither the
absence of the phrase ‘whether driven by wind or not’ nor the
terms Wind and Named Windstorm in the excess policy ren-
der the excess policy ambiguous, and therefore we need not
NORTHROP GRUMMAN v. FACTORY MUTUAL INS. 3931
consider the extrinsic evidence presented by the parties. See
Fraley v. Allstate Ins. Co., 97 Cal. Rptr. 2d 386, 390 (Ct. App.
2000) (‘Extrinsic evidence may be admitted to aid in the inter-
pretation of an insurance policy only where the terms are
ambiguous.’).”
Page 10678, line 1, insert the following text: “Despite the
unambiguous policy language, however, we must preliminar-
ily consider Northrop’s extrinsic evidence to determine
whether it creates an ambiguity. Barris Industries, Inc. v.
Worldvision Ent., Inc., 875 F.2d 1446, 1450 (9th Cir. 1989).
For example, Northrop points to a sentence in the Underwrit-
ing Detail provided to Factory Mutual by Aon, which states
‘[s]torm surge loss estimates are included in our windstorm
analysis unless mentioned otherwise.’ This sentence, how-
ever, was included on a document specifically addressing
only the risks of earthquakes and coastal windstorms striking
covered Northrop facilities, and, like the Named Windstorm
definition in the primary policy, also described storm surge as
flooding. The parties also cite inconclusive and conflicting
evidence regarding the treatment of previous storm surge
damage caused by Hurricanes Georges and Isabel. Neither
claim implicated excess policy coverage and the evidence is
of little relevance in construing this excess policy. We find
the extrinsic evidence ‘insufficient to render the contract sus-
ceptible to [Northrop’s] proffered interpretation’ of flood as
excluding flooding caused by storm surge. See id.”
With these amendments, the panel has voted to deny appel-
lee’s petition for panel rehearing and has recommended denial
of the petition for rehearing en banc. The full court has been
advised of the petition for rehearing en banc and no judge has
requested a vote on whether to rehear the matter en banc. Fed.
R. App. P. 35.
The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED. No further petitions for rehearing
will be entertained.
3932 NORTHROP GRUMMAN v. FACTORY MUTUAL INS.
OPINION
HALL, Circuit Judge:
Factory Mutual Insurance Company appeals the district
court’s summary judgment in favor of Northrop Grumman
Corporation. Northrop sued the insurance company after Fac-
tory Mutual denied coverage for water damage at Northrop’s
Mississippi subsidiary caused by Hurricane Katrina. Factory
Mutual argued that coverage for water damage was barred by
an exclusion for flooding in the policy, but the district court
held that the exclusion was ambiguous and construed it in
favor of Northrop. We reverse the district court’s grant of
summary judgment in favor of Northrop, and remand for a
determination of whether California’s efficient proximate
cause doctrine mandates coverage of the damage notwith-
standing our interpretation of the contractual language.
I. FACTS AND PROCEEDINGS BELOW
A. The parties and the insurance policies at issue
Northrop Grumman is a global defense contractor with
approximately 120,000 employees worldwide. Its Mississippi
subsidiary, Northrop Grumman Ship Systems, is head-
quartered in Pascagoula, Mississippi and has operations
throughout the Gulf area. Northrop maintains a risk manage-
ment department, and is represented by Aon Risk Services in
the insurance marketplace.
Aon was responsible for brokering Northrop’s property
insurance for April 2005 to April 2006. In February 2005,
Aon prepared and submitted an Underwriting Detail to pro-
spective insurers. The Underwriting Detail explained that
Northrop sought blanket insurance for $19.8 billion in proper-
ties, and proposed that the insurance be layered. The primary
layer, termed “All Risk including Earthquake, Flood, Boiler
& Machinery,” would provide comprehensive property insur-
NORTHROP GRUMMAN v. FACTORY MUTUAL INS. 3933
ance with a general limit of $500 million, and certain sub-
limits, such as a $400 million sublimit per flood occurrence.
The excess layer, described as “All Risk including Boiler &
Machinery (Excluding Earthquake and Flood),” would cover
additional losses up to the $19.8 billion total value of Nor-
throp’s property, but would not include earthquake or flood
coverage. The suggested premiums were $12,730,000 for the
primary layer, and $950,000 for the excess layer.
Factory Mutual received the Underwriting Detail and pro-
vided Northrop with a quote for 15% participation in the first
$100 million of the primary layer, and full participation in the
excess layer. Northrop accepted the quote and Factory Mutual
transmitted the primary and excess policies to Northrop.
The primary policy, derived from a hybrid Aon/Factory
Mutual form,1 was an “all risk” policy, insuring Northrop
against “all risk of physical loss or damage to property”
unless otherwise excluded. The policy included a glossary
section which defined various terms, including certain types
of losses, such as Flood, Wind, and Named Windstorm. The
policy defined Flood as:
all physical loss or damage caused by or resulting
from flood waters, rising waters, waves, tide or tidal
water, surface waters, or the rising, overflowing, or
breaking of boundaries of lakes, reservoirs, rivers,
streams or other bodies of water, whether driven by
wind or not, including spray and sewer back-up
resulting from any of the foregoing, all regardless of
any other cause or event contributing concurrently or
in any other sequence of loss.
Wind was defined as “[d]irect action of wind including
1
The hybrid form was drafted by Aon, but made available to Factory
Mutual’s clients who used Aon as a broker.
3934 NORTHROP GRUMMAN v. FACTORY MUTUAL INS.
substance driven by wind.” Named Windstorm was separately
defined as:
[t]he direct action of wind including any substance
driven by wind, and/or flood when such wind or
flood is associated with or occurs in conjunction
with a storm or weather disturbance which is identi-
fied by name prior to loss by any meteorological
authority such as the U.S. National Weather Service
or National Hurricane Center.
The excess policy, which was derived from Factual Mutu-
al’s own Advantage form, was also an “all risk” policy. The
excess policy provided Northrop with $19.8 billion of insur-
ance in excess of the $500 million covered by the primary
policy, and insured Northrop for all risks unless specifically
excluded. The excess policy excluded loss or damage caused
by various occurrences, including Flood (the Flood Exclu-
sion). Flood was defined as:
Flood; surface waters; rising waters; waves; tide or
tidal water; the release of water, the rising, overflow-
ing or breaking of boundaries of natural or man-
made bodies of water; or the spray therefrom; or
sewer back-up resulting from any of the foregoing;
regardless of any other cause or event contributing
concurrently or in any other sequence of loss. How-
ever, physical damage by fire, explosion or sprinkler
leakage resulting from Flood is not considered to be
loss by Flood within the terms and conditions of this
Policy.
Neither Named Windstorm damage nor Wind damage was
defined or otherwise referenced in the excess policy.
NORTHROP GRUMMAN v. FACTORY MUTUAL INS. 3935
B. Hurricane Katrina and the damage to Northrop’s ship-
yards
On August 29, 2005, Hurricane Katrina struck the Gulf
Coast, making landfall near the Louisiana/Mississippi border.
Katrina was one of the strongest storms to impact the coast of
the United States in the past 100 years, with wind speeds of
up to nearly 175 miles per hour and an accompanying storm
surge that inundated parts of Louisiana, Alabama, and Missis-
sippi.2 Northrop’s ship building subsidiaries located in the
Gulf region were severely damaged by the storm. The major-
ity of the loss occurred at the Pascagoula, Mississippi ship-
yards, where the storm surge was as high as twenty-two feet.
According to the shipyard manager, Steve Pierce, the Pasca-
goula yard sustained water damage to transporters, translation
cars, electrical systems, and other property, as well as wind
damage to the roofs of the buildings. Photographs on the day
of the hurricane showed trucks in the shipyard halfway sub-
merged in water, and Pierce estimated that buildings were
covered in six to ten feet of water in some parts of the ship-
yard. Northrop’s preliminary estimates put the damage to its
property as a result of the hurricane at $1,257,100,000, pri-
marily attributable to the damage at the Pascagoula shipyards.
Northrop timely notified its insurers of the loss it suffered
from Hurricane Katrina. Factory Mutual paid Northrop $15
million under the primary policy, but informed Northrop that
it was planning to examine the damages under the excess pol-
icy as two separate perils: a loss caused by wind, which has
no limitation on the amount of coverage, and a loss caused by
flood, which was not covered at all due to the Flood Exclu-
sion.
2
The National Hurricane Center describes storm surge as “water that is
pushed toward the shore by the force of the winds swirling around the
storm . . . [which] combines with the normal tides to create the hurricane
storm tide . . . . .” See National Hurricane Center, Storm Surge, http://
www.nhc.noaa.gov/HAW2/english/storm_surge.shtml (last visited July
31, 2008).
3936 NORTHROP GRUMMAN v. FACTORY MUTUAL INS.
C. This Litigation
On November 4, 2005, Northrop filed suit against Factory
Mutual in California state court, demanding coverage for the
water damage under the excess policy. Factory Mutual
removed the case to the Central District of California, and the
parties filed cross-motions for partial summary judgment on
Northrop’s cause of action for declaratory relief — specifi-
cally, whether the Flood Exclusion in the excess policy barred
coverage for the water damage from Hurricane Katrina.
On August 16, 2007, the district court granted Northrop’s
motion for partial summary judgment. The court agreed with
Northrop that the Flood Exclusion was ambiguous because it
did not “plainly and clearly reference hurricanes or damage
caused by wind.” The court then deferred to what it found to
be Northrop’s reasonable interpretation of the Flood Exclu-
sion — that it was limited to floods not caused by wind.
Factory Mutual filed an unopposed motion for entry of
final judgment under Fed. R. Civ. P. 54(b). The district court
found no cause for delay and granted the motion on Novem-
ber 20, 2007. Factory Mutual timely appealed.
II. STANDARD OF REVIEW
A district court’s grant of summary judgment is reviewed
de novo, under the same standards applied by the district
court. “We must determine whether, viewing the evidence in
the light most favorable to the nonmoving party, any genuine
issues of material fact exist, and whether the district court cor-
rectly applied the relevant substantive law.” Fazio v. City and
County of San Francisco, 125 F.3d 1328, 1331 (9th Cir.
1997).
NORTHROP GRUMMAN v. FACTORY MUTUAL INS. 3937
III. DISCUSSION
[1] Though insurance contracts have special features, the
general rules of contract interpretation still apply in California.3
Bank of the W. v. Superior Court, 833 P.2d 545, 551 (Cal.
1992); MacKinnon v. Truck Ins. Exch., 73 P.3d 1205, 1212
(Cal. 2003). The interpretation of a contract must “give effect
to the ‘mutual intent’ of the parties . . . at the time the contract
was formed.” Id. at 1212-13 (citing Cal. Civ. Code § 1636).
Such intent is to be inferred, if possible, from the written pro-
visions of the contract based on their “ordinary and popular
sense,” unless a “technical sense or special meaning is given
to them by their usage.” Id. at 1213. (citing Cal. Civ. Code
§§ 1639, 1644, 1638). If the contractual language is clear and
explicit, it governs. Id.; AIU Ins. Co. v. Superior Court, 799
P.2d 1253, 1264 (Cal. 1990). Ambiguous terms are generally
construed against insurers, but “[a] policy provision is ambig-
uous only if it is susceptible to two or more reasonable con-
structions despite the plain meaning of its terms within the
context of the policy as a whole.” Palmer v. Truck Ins. Exch.,
988 P.2d 568, 573 (Cal. 1999). “We will ‘not artificially
create ambiguity where none exists. If a reasonable interpreta-
tion favors the insurer and any other interpretation would be
strained, no compulsion exists to torture or twist the language
of the policy.’ ” Evans v. Safeco Life Ins. Co., 916 F.2d 1437,
1441 (9th Cir. 1990) (quoting Allstate Ins. Co. v. Ellison, 757
F.2d 1042, 1044 (9th Cir. 1985)).
[2] In this case, an examination of the written provisions of
the excess policy, understood in their ordinary and popular
sense, leads to the result that the Flood Exclusion encom-
passes the water damage to Northrop’s shipyards. The first
word used to define the term Flood in the excess policy was
3
The district court applied California law because Factory Mutual did
not argue that any other any other law should control. On appeal, Factory
Mutual does not dispute that California law applies to the interpretation of
the excess policy.
3938 NORTHROP GRUMMAN v. FACTORY MUTUAL INS.
“flood.” Both lay and legal dictionaries characterize flood as
an overflowing or inundation of water over usually dry land.
See American Heritage Dictionary of the English Language
674 (4th ed. 2000) (“[a]n overflowing of water onto land that
is normally dry”); Merriam-Webster’s Collegiate Dictionary
480 (11th ed. 2003) (“a rising and overflowing of a body of
water esp. onto normally dry land”); Black’s Law Dictionary
640 (6th ed. 1990) (“[a]n inundation of water over land not
usually covered by it”).4
[3] Courts have endorsed these dictionary meanings of
flood as the ordinary, plain meaning of the word. See, e.g.,
Sher v. Lafayette Ins. Co., 988 So. 2d. 186, 2008 WL 928486(La. April 8, 2008) (“The plain, ordinary, and generally pre-
vailing meaning of the word ‘flood’ is the overflow of a body
of water causing a large amount of water to cover an area that
is usually dry.”); Kane v. Royal Ins. Co. of Am., 768 P.2d 678,
680-81 (Colo. 1989) (relying on dictionaries to define flood
as “an overflowing of water on an area normally dry”); Stover
v. United States, 204 F. Supp. 477, 485 (C.D. Cal. 1962) (“A
‘flood’ is water which inundates an area of the surface of the
earth where it ordinarily would not be expected to be.”), aff’d,
332 F.2d 204 (9th Cir. 1964). We follow the same approach
here, and find that the water damage to Northrop’s shipyards
falls squarely within the ordinary and plain meaning of flood.
The shipyards, which were covered in up to ten feet of water,
unquestionably experienced “an inundation of water over nor-
mally dry land,” and therefore experienced a flood within the
meaning of the excess policy. See Kane, 768 P.2d at 681
(“The inundation of insureds’ normally dry land falls squarely
within the[ ] generally accepted definitions of the term
4
Contrary to the district court’s finding, dictionary definitions are an
appropriate consideration in evaluating the ordinary meaning of terms in
an insurance contract. Jordan v. Allstate Ins. Co., 11 Cal. Rptr. 3d 169,
176 (Ct. App. 2004) (“It is well settled that in order to construe words in
an insurance policy in their ‘ordinary and popular sense,’ a court may
resort to a dictionary.” (citing Scott v. Continental Ins. Co., 51 Cal. Rptr.
2d 566, 569 (Ct. App. 1996)).
NORTHROP GRUMMAN v. FACTORY MUTUAL INS. 3939
‘flood.’ ”). Moreover, the other terms used to define Flood in
the excess policy —“rising waters,” “waves,” and “tide or
tidal water” — also describe the type of damage Northrop
experienced. See, e.g., Leonard v. Nationwide Mut. Ins. Co.,
499 F.3d 419, 437 (5th Cir. 2007) (“The phrase ‘storm surge’
is little more than a synonym for a ‘tidal wave’ or wind-
driven flood . . . .” ).
Furthermore, the dictionary definition of flood comports
with the lay understanding of the term. Most individuals
would describe the inundation caused by a hurricane as a
“flood.” See E.M.M.I. Inc. v. Zurich American Ins. Co., 32
Cal. 4th 465, 471 (2004) (describing “elementary rules of
contract interpretation that policy language is interpreted in its
ordinary and popular sense and as a layman would read it and
not as it might be analyzed by an attorney or an insurance
expert” (internal citations ommitted)); compare MacKinnon,
73 P.3d 1205 (finding “pollution” ambiguous when dictionary
definition did not agree with the lay person’s understanding
and applying the dictionary definition would lead to absurd
results). Thus, the plain language of the Flood Exclusion
unambiguously bars coverage for the water damage to Nor-
throp’s shipyards.
Northrop argues that this interpretation is flawed because it
fails to read the excess policy in light of the primary policy.
Northrop points out that the phrase “whether driven by wind
or not” is used in the primary policy’s definition of Flood but
does not appear in the excess policy’s definition of flood,
even though the phrase is used elsewhere in the excess policy.
It also notes that while the terms Wind and Named Wind-
storm were defined in the primary policy, they were not refer-
enced or excluded from coverage in the excess policy.
According to Northrop, these distinctions demonstrate that the
Flood Exclusion is ambiguous, because when the excess pol-
icy is read in the context of the primary policy, it fails to
clearly and explicitly include wind-driven flood damage. See
State Farm Mut. Auto. Ins. Co. v. Jacober, 514 P.2d 953, 958
3940 NORTHROP GRUMMAN v. FACTORY MUTUAL INS.
(Cal. 1973) (exclusions in insurance contracts must be con-
spicuous and clear).
We disagree. We recognize that insurance policies must be
construed in context, Palmer, 988 P.2d at 572-73, but in this
case, Northrop urges us to find an ambiguity based on differ-
ing language in two separate policies. Though the primary
policy must be consulted in interpreting the excess policy, see
Cal. Civ. Code § 1642, we decline to treat the two documents
as only one contract. See, e.g., Hartford Accident & Indemnity
Co. v. Sequoia Ins. Co., 260 Cal. Rptr. 190, 197 (Ct. App.
1989) (“ ‘While it is the rule that several contracts relating to
the same matters are to be construed together . . . it does not
follow that for all purposes they constitute one contract.”)
(quoting Malmstedt v. Stillwell, 294 P. 41, 42 (Ct. App.
1930)); Powerine Oil Co. v. Superior Court, 118 P.3d 589,
602-03 (Cal. 2005) (considering primary policy in interpreting
excess policy but not construing them as one document). Con-
sequently, Northrop’s citation to cases addressing inconsistent
definitions within a single policy is unhelpful. See, e.g., Mir-
pad, LLC v. California Ins. Guarantee Ass’n, 34 Cal. Rptr. 3d
136, 146 (Ct. App. 2005) (rejecting definition of person to
include organization because organization was defined sepa-
rately in the policy).
[4] Moreover, the case law addressing multiple policies
does not support Northrop’s view that an ambiguity must
exist because of the different definitions of Flood in the pri-
mary and excess policies. In fact, in Smyth v. USAA Prop. &
Cas. Ins. Co., 7 Cal. Rptr. 2d 694 (Ct. App. 1992), the court
explicitly rejected a similar argument, holding that the mean-
ing of the term “business” in an excess policy was unambigu-
ous and clear even though it was defined differently in the
primary policy, because the insured’s interpretation was not
reasonable under either definition. Id. at 697 (“That this defi-
nition is not identical in the primary and excess policies does
not create an ambiguity.”). Similarly, under either definition
NORTHROP GRUMMAN v. FACTORY MUTUAL INS. 3941
of flood, Northrop’s limited interpretation of the broad term
“flood,” as excluding wind-driven flooding, is not reasonable.
Northrop relies on Powerine Oil, but that case does not
show that differences between a primary and excess policy
control judicial interpretation. In Powerine, the court held that
coverage for “damages . . . and expenses” in an excess policy
extended beyond court-awarded monetary damages. 118 P.3d
at 601-02. While Powerine noted certain differences between
primary and excess policy language in interpreting the excess
policy — the primary policy covered only “damages,”
whereas the excess policy included “damages . . . and
expenses” — these distinctions did not drive the court’s
result. Id. at 601-02. Rather, the court focused on the addition
of the word “expenses” within the excess policy itself in
determining the breadth of coverage. Id. at 602 (“We agree
with the Court of Appeal that the addition of the term
‘expenses’ in the central insuring clause of these excess/
umbrella policies extends coverage beyond the limitation
imposed were the term ‘damages’ used alone . . . .” ). Accord-
ingly, the different definitions of Flood in the primary and
excess policies do not create ambiguity.
In a variation of the same argument, Northrop contends that
the absence of the phrase “whether driven by wind or not” in
the Flood Exclusion evidences an intent on Factory Mutual’s
part to expand coverage to include wind-driven flood. Relying
on Maxconn, Inc. v. Truck Ins. Exch., 88 Cal. Rptr. 2d 750,
758 (Ct. App. 1999) (“The absence of an expression or word
in a policy is clearly an appropriate consideration in the inter-
pretation of contracts.”), and Fireman’s Fund Ins. Cos. v. Atl.
Richfield Co., 115 Cal. Rptr. 2d 26, 33 (Ct. App. 2001) (“[A]n
insurance company’s failure to use available language to
exclude certain types of liability gives rise to the inference
that the parties intended not to so limit coverage.”), Northrop
argues that Factory Mutual could and should have used the
phrase “whether driven by wind or not” in the Flood Exclu-
sion if it wanted to limit coverage, and that its failure to do
3942 NORTHROP GRUMMAN v. FACTORY MUTUAL INS.
so must be read as expanding coverage. Northrop correctly
observes that Factory Mutual used the phrase “whether driven
by wind or not” not only in the primary policy, but also else-
where in the excess policy, and that it used similar language
in earlier policies issued to Northrop. Northrop also argues
that inclusion of the phrase “whether driven by wind or not”
in flood exclusions is industry custom, and that Factory
Mutual defied custom when it created a purportedly narrower
exclusion for flood damage.
[5] We are not convinced that the absence of the phrase
“whether driven by wind or not” renders the otherwise clear
language of the Flood Exclusion ambiguous. Maxconn and
Fireman’s Fund are distinguishable as involving more con-
spicuous omissions than the one here,5 and we view the fail-
ure to include the phrase “whether driven by wind or not” as
more indicative of a lack of specificity on Factory Mutual’s
part than an omission evidencing its intent to narrow its exclu-
sion. See California Cas. Co. v. Northland Ins. Co., 56 Cal.
Rptr. 2d 434, 440 (Ct. App. 1996) (“Although it might have
promoted clarity in CCIC’s policy to state specifically that jet
pump powered watercraft were excluded, ‘the fact that lan-
guage could be more explicit does not render it ambiguous.’ ”
5
For example, in Maxconn, the insured attempted to argue that a provi-
sion covering “infringement of copyright, title or slogan” included patent
infringement. The court disagreed, holding that “[t]he absence of any
express reference to patent infringement [which was a ‘distinct legal claim
governed by a vast body of statutory and case law’] would lead a reason-
able layperson to the conclusion that patent infringement is not covered.”
88 Cal. Rptr. 2d at 755-56. In contrast, the omitted phrase here —
“whether driven by wind or not” — is not a distinct legal claim whose
absence would be equally noticeable.
In Fireman’s Fund, the court rejected the insurer’s narrow interpretation
of the phrase “arising out of,” and suggested that the insurer should have
included qualifying language if it wanted to limit the phrase given that
“courts have been broadly interpreting [that language] since at least 1986.”
115 Cal. Rptr. 2d at 30. Here, there is no narrow interpretation of flood
exclusions omitting the phrase “whether driven by wind or not” that would
have put Factory Mutual on notice to include qualifying language.
NORTHROP GRUMMAN v. FACTORY MUTUAL INS. 3943
(citing Suarez v. Life Ins. Co. of N. Am., 254 Cal. Rptr. 377,
383 (Ct. App. 1988)); Great Western Drywall, Inc. v. Inter-
state Fire & Cas. Co., 74 Cal. Rptr. 3d 657, 664 (Ct. App.
2008) (also rejecting premise that exclusion was ambiguous
because it could have been drafted with more clarity). Here,
because the other terms used to describe flood were merely
descriptive of floods, or synonymous for flood, rather than
separate exclusions, the absence of “whether driven by wind
or not” is not rendered surplusage in the primary policy, nor
is it necessary to the excess policy’s definition, where the
term flood is sufficiently broad to encompass the damage
Northrop suffered. See Brodkin v. State Farm Fire & Casu-
alty Co., 217 Cal.App.3d 210, 217 (Ct. App. 1990) (holding
exclusion applied to damage suffered by insureds, though the
synonym “corrosion” or other descriptors was not included,
because the plain meaning of the exclusion of “leakage or
seepage,” “wear, tear” and “deterioration” covered the dam-
age suffered); see also Smyth, 7 Cal. Rptr. 2d at 697 (holding
that definition of “business” in primary policy as “trade, pro-
fession, or occupation” did not create an ambiguity, though
“business” was defined in the umbrella policy as “trade, occu-
pation, profession or business”).
In addition, Northrop has not shown that it is industry cus-
tom to use the phrase “whether driven by wind or not” in
flood exclusions, weakening its argument that Factory Mutual
bucked a trend when it left the language out.6 Neither has
6
Factory Mutual’s experts stated that “[t]here is no custom and practice
in the insurance industry to use the phrase ‘whether driven by wind or not’
either to exclude coverage for, or provide coverage for, storm surge flood
damage.” Northrop cites a handful of cases that use the phrase “whether
driven by wind or not,” but Factory Mutual also cites cases in which that
term is not noted or discussed in flood exclusions. Northrop notes that the
Insurance Service’s Office’s Standard Property Policy Form refers to
wind-driven floods, but other standard policies — such as the National
Flood Insurance Program standard policy and a 2002-2003 Lloyd’s of
London Primary Master Policy issued to Northrop — do not reference the
phrase.
3944 NORTHROP GRUMMAN v. FACTORY MUTUAL INS.
Northrop cited any cases holding that hurricane storm surge
is not within the meaning of a flood exclusion, or holding that
the phrase “whether driven by wind or not” is necessary to
signify that storm surge is included within a flood exclusion.
[6] Last, it is of no import that the primary policy defined
the term Named Windstorm and Wind and that those terms
were not referenced in the excess policy. The primary policy
was an all risk policy, covering all acts unless specifically
excluded. Strubble v. United Servs. Auto Ass’n, 110 Cal. Rptr.
828, 831 (Ct. App. 1973). Accordingly, defining Named
Windstorm and Wind in the primary policy did not create
coverage that the excess policy failed to exclude. Rather, a
sensible reading of the primary policy suggests that the terms
were defined to explain when the special Named Windstorm
deductible would apply.7 See Six Flags Inc. v. Westchester
Surplus Lines Ins. Co., 535 F. Supp. 2d 744, 754 (E.D. La.
2008) (term “Weather Cat Occurrence” simply “lumps all
losses or damages occurring within a 72-hour period of time
into one covered loss for adjustment purposes.”). Because
there was no defined coverage for Wind nor Named Wind-
storm, there was no reason for the excess policy — which was
also an all risk policy, and included no deductible for Named
Windstorm — to specifically exclude or even reference those
terms. Moreover, even the definition of Named Windstorm
noted that such storms can cause flood damage, only strength-
ening the argument that the lay interpretation of flood
includes flooding caused by storm surge. Accordingly, no
ambiguity results in the excess policy based on the labels
placed on certain types of damages in the primary policy. See
id. at 754-55 (flood sublimit unambiguously applied to storm
surge damages from Hurricane Katrina even though those
damages were separately described in the defined term
“Weather Cat Occurrence”).8
7
There was a $10 million deductible for Named Windstorms, whereas
the policy had a general deductible of $1 million.
8
Pinnacle Entm’t, Inc. v. Allianz Global Risk US Ins. Co., No. 2:06-CV-
00935-BES-PAL, slip op., at 9 (D. Nev. Mar. 26, 2008), cited by Nor-
NORTHROP GRUMMAN v. FACTORY MUTUAL INS. 3945
[7] In light of the above, we hold that the Flood Exclusion
unambiguously bars coverage for the water damage to Nor-
throp’s shipyards under the excess policy. The words used to
define the Flood Exclusion, understood in their ordinary and
popular sense, clearly and conspicuously preclude coverage
for the water damage at Northrop’s shipyards. State Farm
Mut. Auto. Ins. Co., 514 P.2d at 958. Despite the unambigu-
ous policy language, however, we must preliminarily consider
Northrop’s extrinsic evidence to determine whether it creates
an ambiguity. Barris Industries, Inc. v. Worldvision Ent., Inc.,
875 F.2d 1446, 1450 (9th Cir. 1989). For example, Northrop
points to a sentence in the Underwriting Detail provided to
Factory Mutual by Aon, which states “[s]torm surge loss esti-
mates are included in our windstorm analysis unless men-
tioned otherwise.” This sentence, however, was included on
a document specifically addressing only the risks of earth-
quakes and coastal windstorms striking covered Northrop
facilities, and, like the Named Windstorm definition in the
primary policy, also described storm surge as flooding. The
parties also cite inconclusive and conflicting evidence regard-
ing the treatment of previous storm surge damage caused by
Hurricanes Georges and Isabel. Neither claim implicated
excess policy coverage and the evidence is of little relevance
in construing this excess policy. We find the extrinsic evi-
dence “insufficient to render the contract susceptible to [Nor-
throp’s] proffered interpretation” of flood as excluding
flooding caused by storm surge. See id.CONCLUSION
We reverse the district court’s summary judgment in favor
of Northrop. We remand for consideration of Northrop’s
argument that California’s efficient proximate cause doctrine
throp, does not demonstrate otherwise. That case is an unpublished memo-
randum out of the District of Nevada, and its holding was based on the
district court’s reasoning in this case, which we disagree with here.
3946 NORTHROP GRUMMAN v. FACTORY MUTUAL INS.
demands coverage of the water damage notwithstanding the
language of the contract. See, e.g., Julian v. Hartford Under-
writers Ins. Co., 110 P.3d 903, 904 (Cal. 2005). Though the
parties briefed the issue on appeal, we decline to consider it
in the first instance because it involves factual considerations.
Reversed and Remanded.