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 2020-09

Kelly Porch v. Preferred Contractors ( 2020 )


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  •                                                                                FILED
NOT FOR PUBLICATION
SEP 3 2020
UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY D. PORCH; MICHELLE R.                      No.    19-35770
PORCH,
D.C. No. 1:18-cv-00102-TJC
Plaintiffs-Appellants,
v.                                              MEMORANDUM*
PREFERRED CONTRACTORS
INSURANCE COMPANY, RRG;
GOLDEN STATE CLAIMS
ADJUSTERS, INC.; SAFEBUILT
INSURANCE SERVICES, INC., DBA
SIS Wholesale Insurance Services,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Timothy J. Cavan, Magistrate Judge, Presiding
Submitted August 12, 2020**
Anchorage, Alaska
Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges.
*
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. See Fed. R. App. P. 34(a)(2).
Kelly and Michelle Porch (the Porches) appeal the district court order
granting summary judgment in favor of Appellees.1 We have jurisdiction under 28
U.S.C. § 1291. Reviewing de novo, we affirm. See Vazquez v. Cty. of Kern,
    949 F.3d 1153
    , 1159 (9th Cir. 2020).
The district court did not err in holding that no duty to defend existed as a
matter of law. State substantive law governs the construction of an insurance
policy. See Hawthorne Sav. F.S.B. v. Reliance Ins. Co. of Ill.,
    421 F.3d 835
    , 841
(9th Cir. 2005). “[W]hen the language of a policy is clear and explicit, the policy
should be enforced as written. . . .” Steadele v. Colony Ins. Co.,
    260 P.3d 145
    , 149
(Mont. 2011) (citation omitted).
The insurance policy at issue in this case included a Fall from Heights
exclusion that unequivocally excluded the Porches’ claim. The provision excluded
from coverage any bodily injury “arising out of, resulting from, caused by,
contributed to by, or in any way related to, in whole or in part, from . . . a fall from
. . . ladders, . . . where there is a height differential to the ground.” Because it was
undisputed that Mr. Porch fell from a ladder where a height differential to the
1
Appellees are Preferred Contractors Insurance Company, Golden
State Claims Adjusters, Inc., and Safebuilt Insurance Services, Inc. dba SIS
Wholesale Insurance Services.
2
ground existed, the exclusion applied. See
    Steadele, 260 P.3d at 149
    .2 Finally, any
claim of ambiguity failed, because the Porches did not proffer an alternative
reasonable interpretation of the provision. See
    id. AFFIRMED. 2 The 
    Porches’ attempt to distinguish between falling from the ladder
and falling with the ladder is unavailing in view of the broad language of the Fall
from Heights exclusion (“arising out of, resulting from, caused by, contributed to
by, or in any way related to, in whole or in part”). See Wendell v. State Farm Mut.
Auto. Ins. Co.,
    974 P.2d 623
    , 639 (Mont. 1999) (construing similar insurance
contract language to be read broadly).
3