Wincor Nixdorf Inc. v. Discover Property & Casualty , 612 F. App'x 900 ( 2015 )

FILED
NOT FOR PUBLICATION MAY 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WINCOR NIXDORF INC.; ALLIANZ No. 13-56202
GLOBAL RISKS US INSURANCE
COMPANY, D.C. No. 2:13-cv-02772-GAF-
FFM
Plaintiffs - Appellants,
v. MEMORANDUM*
DISCOVER PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted May 8, 2015**
Pasadena, California
Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.
This insurance case arises out of a dispute over whether an insured vehicle
was in “use” when the insured’s employee got out of the vehicle, assaulted a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
pedestrian rendering him unconscious, and then dragged him to the side of the road
before fleeing the scene of the altercation. The district court held it was not and
dismissed the suit with prejudice under Federal Rule of Civil Procedure 12(b)(6).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Discover Property and Casualty Insurance Company (“Discover”) provided
auto insurance coverage for Wincor Nixdorf, Inc. (“Wincor”) and its employees,
including Robert Kane (“Kane”). Allianz Global Risks US Insurance Company
(“Allianz”) provided commercial general liability coverage for Wincor. On May
21, 2009, Kane was driving in the service of his employer when he came to a
controlled intersection in downtown San Francisco. Although the traffic light was
green for Kane, a pedestrian, Cameron Rodriguez (“Rodriguez”), crossed in front
of his car and caused him to stop. Rodriguez and Kane traded verbal insults at
which point Rodriguez gave Kane “the bird.” Kane then got out of his car and
punched Rodriguez, knocking him to the ground. Kane returned to his work
vehicle, but had second thoughts because he “felt bad” and did not want to “just
leave this guy . . . laying in the street.” Kane thus picked up the unconscious
Rodriguez by the armpits and moved him to the side of the road where Kane
dropped him in the gutter, causing him to hit his head. Kane then drove away.
Rodriguez sustained a broken eye socket and a fracture to the back of his head.
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Kane was criminally convicted of felony assault and battery, and Rodriguez
also settled a civil lawsuit against Kane and Wincor for $1,250,000. Wincor
tendered to Discover defense of the company in the civil lawsuit, but Discover
refused. Allianz defended Wincor under a reservation of rights. Wincor and
Allianz now sue Discover based on the auto-insurer’s refusal to defend Wincor.
Discover did not owe a duty to defend Wincor against Rodriguez’s civil suit
where the claims arose out of Kane’s assault and subsequent dragging of
Rodriguez to the side of the road, rather than out of the “use” of the vehicle. See
Cal. Ins. Code § 11580.06(g) (defining “use”); Cal. Auto. Ins. Co. v. Hogan, 112
Cal. App. 4th 1292, 1295, 1298-301 (2003); see also State Farm Mut. Auto. Ins.
Co. v. Fernandez, 767 F.2d 1299, 1302 (9th Cir. 1985). The California Supreme
Court in State Farm Mut. Auto. Ins. Co. v. Partridge, 10 Cal. 3d 94, 100-01 (1973),
“left open” the “exact nature of the required causal connection” to show a vehicle
was in “use” for purposes of the insurance code, but since then the majority of
California Courts of Appeal have held that the “predominating cause/substantial
factor test” should apply. Am. Nat’l Prop. & Cas. Co. v. Julie R., 76 Cal. App. 4th
134, 139-40 (1999); see State Farm Mut. Auto. Ins. Co. v. Grisham, 122 Cal. App.
4th 563, 566-67 (2004); Hogan, 112 Cal. App. 4th at 1298. The district court
properly held “there is no causal connection—predominating, substantial, minimal,
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or otherwise—between the use of the Vehicle and the injuries Rodriguez sustained
when being moved off the street.” At most, the car provided transportation to the
situs of the tort, but remained an innocent bystander thereafter. See, e.g., Hogan,
112 Cal. App. 4th at 1299-300; cf. State Farm Mut. Auto. Ins. Co. v. Davis, 937
F.2d 1415, 1420-21 (9th Cir. 1991) (finding car was in “use” to facilitate a
highway shooting).
We agree with the district court and fail to see how Kane’s momentary re-
entry into the vehicle before having second thoughts would dictate a different
outcome from the numerous other cases that have held similar road rage incidents
to have no causal link to the vehicle. See, e.g., Fernandez, 767 F.2d at 1302;
Hogan, 112 Cal. App. 4th at 1300-01. Moreover, even if Kane had been
attempting to move Rodriguez out of the vehicle’s path in order to drive away, this
fact alone would not change the outcome. Therefore, we hold there was “no
possibility of coverage, [and thus] no duty to defend.” State Farm Fire & Cas. Co.
v. Super. Ct., 191 Cal. App. 3d 74, 77 (1987). Absent a duty to defend, Discover
did not breach its contract with Wincor, and all of the other claims asserted by
Wincor and Allianz fail as a result.
Because Discover had no duty to defend Wincor, we need not reach the
collateral estoppel issue.
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AFFIRMED.
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