Craig Jalbert v. Xl Ins. America, Inc. ( 2020 )

FILED
NOT FOR PUBLICATION
JUN 10 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRAIG R. JALBERT, a Massachusetts No. 19-55188
citizen, as Trustee of the Vernon Tort
Claims Trust, D.C. No.
2:17-cv-07167-GW-KS
Plaintiff-Appellant,
v. MEMORANDUM*
XL INSURANCE AMERICA, INC., a
Delaware corporation; ZURICH
AMERICAN INSURANCE COMPANY,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted June 2, 2020**
Pasadena, California
*
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).
Before: LIPEZ,*** RAWLINSON, and N.R. SMITH, Circuit Judges.
Craig R. Jalbert, Trustee of the Vernon Tort Trust, appeals the district
court’s decision to grant summary judgment in favor of XL Insurance America,
Inc. (“XL”) and Zurich American Insurance Company (“Zurich”). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Because this is a diversity action without any federal questions, California
law governs our decision. See Hydro Sys., Inc. v. Cont’l Ins. Co., 929 F.2d 472,
474 (9th Cir. 1991). Under California law, “[i]nterpretation of an insurance policy
is a question of law and follows the general rules of contract interpretation,” which
requires giving effect to the “mutual intention” of the parties. TRB Invs., Inc. v.
Fireman’s Fund Ins. Co., 145 P.3d 472, 476 (Cal. 2006). The “mutual intention” of
the parties is to be inferred from the written provisions of the contract based on
their clear and explicit meaning. Id. at 477.
1. Jalbert argues that the lead-particulate and arsenic emissions were Exide
Technologies, Inc.’s (“Exide”) “product,” which brought the underlying claims
within coverage. The Ninth Circuit has interpreted the term “product,” when used
in an identical products-completed operations hazard (“PCOH”) exception to a
***
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
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pollution exclusion, to unambiguously mean “goods or services which the insured
deals in as his stock or trade.” Hydro Sys., Inc., 929 F.2d at 475 (citation omitted).
Exide’s “stock or trade” were the lead ingots it marketed and sold to third parties,
not the lead-particulate and arsenic emissions, thus the PCOH exception does not
apply.
2. Because Jalbert failed to address the district court’s reasoning for finding
that the “your work” provision only applies to offsite contractor work, he waived
the issue of whether the district court erred by not making XL and Zurich meet
their burden on summary judgment to show when Exide’s work was completed.
See Hillis v. Heineman, 626 F.3d 1014, 1019 n.1 (9th Cir. 2010) (holding that,
where the plaintiff did not address the court’s alternative ground on appeal, the
plaintiff waived the issue). Even if not waived, these provisions do not apply
because “PCOH exclusions generally refer to ‘accidents caused by defective
workmanship which arise after completion of work by the insured on construction
or service contracts,’” and not damage occurring from pollution. Hydro Sys., Inc.,
929 F.2d at 477 (citation omitted).
3. Jalbert argues that XL’s pollution exclusion is unenforceable, because XL
did not obtain prior approval from the California Department of Insurance as
required by Proposition 103. However, the plain language of Proposition 103’s
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implementing statute and its stated purpose only require the approval of “insurance
rates,” not policy terms. See Cal. Ins. Code § 1861.01(c). Therefore, Proposition
103 does not make XL’s policies unenforceable.1
AFFIRMED.2
1
Because the district court did not rely on the lead exclusion to find that the
policies did not provide coverage for the underlying claims and because we affirm
the district court’s ruling, we need not address Jalbert’s lead exclusion argument.
2
The motion to file an amicus brief is granted.
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