Rafi Hovagimian v. Maxum Casualty Insurance Company ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFI HOVAGIMIAN, DBA Paradise No. 22-55358
Banquet Hall and Restaurant, Inc.,
D.C. No.
Plaintiff-Appellant, 2:21-cv-08364-MWF-AFM
v.
MEMORANDUM*
MAXUM CASUALTY INSURANCE
COMPANY, a Connecticut corporation; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted April 10, 2023**
Pasadena, California
Before: W. FLETCHER, BERZON, and MILLER, Circuit Judges.
Plaintiff-Appellant Rafi Hovagimian dba Paradise Banquet Hall &
Restaurant, Inc. (“Hovagimian”) appeals from the district court’s order granting
*
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).
Defendants-Appellees Maxum Casualty Insurance Company and Maxum
Indemnity Company’s (“Maxum”) motion to dismiss this action contesting
Maxum’s denial of insurance coverage. We affirm.
Policyholder Hovagimian seeks coverage under its insurance policy with
Maxum for COVID-19 related economic losses. The virus exclusion provision of
Maxum’s insurance policy bars coverage for Hovagimian’s alleged losses. The
exclusion provides that Maxum “will not pay for loss or damage caused by or
resulting from any virus, bacterium or other microorganism that induces or is
capable of inducing physical distress, illness or disease.” The exclusion applies to
“all coverage under all forms and endorsements” of the policy. Hovagimian argues
that the exclusion does not preclude recovery because (1) the COVID-19 virus is
not the type of virus to which the exclusion applies; (2) the policy includes a
“virus” as opposed to a “pandemic” exclusion and COVID-19 is a pandemic; and
(3) government stay-at-home orders, not COVID-19, was the predominant cause of
Hovagimian’s losses.
1. Hovagimian contends that the word “virus” in the exclusion should be
interpreted “narrowly to apply to a . . . hazardous and or industrial pollution
context” and not COVID-19, because of the words “pollutant,” “hazardous
material,” “toxin,” and others “accompanying ‘virus’. . . in the exclusion.” The
provision defining the policy’s virus exclusion contains, however, no such words.
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Moreover, California insurance law looks to the plain meaning of terms, or “the
meaning a layperson would ordinarily attach to [a term].” Waller v. Truck Ins.
Exchange, Inc., 11 Cal.4th 1, 18 (1995). COVID-19 is a virus “that induces or is
capable of inducing physical distress, illness or disease,” so the exclusion
encompasses the COVID-19 virus.
2. Hovagimian also argues that Maxum could have included an exclusion
for loss or damage caused by or resulting from a “pandemic” as opposed to a
“virus” and that, because Maxum did not, the parties did not intend for the virus
exclusion to apply to loss or damage caused by the COVID-19 pandemic. Where
the text is “clear and explicit,” the language of the insurance contract governs.
Pardee Const. Co. v. Ins. Co. of the West, 77 Cal. App. 4th 1340, 1352 (2000).
Because the language of the exclusion is clear and explicit, the plain language
controls and the exclusion encompasses the COVID-19 virus. Moreover, we agree
that “[a]rguing that the Virus Exclusion does not apply to bar coverage for losses
stemming from the COVID-19 pandemic . . . is akin to arguing that a coverage
exclusion for damage caused by fire does not apply to damage caused by a very
large fire.” Disc. Elecs., Inc. v. Wesco Ins. Co., No. 22-55133, 2023 WL 2009935,
at *2 (9th Cir. Feb. 15, 2023) (internal quotation marks and citation omitted).
3. Finally, Hovagimian argues that government orders—not the COVID-19
virus—predominantly caused its losses, or at least that the predominant cause of
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Hovagimian’s losses is a question of fact. The district court correctly rejected this
argument.
In California, “where there is a concurrence of different causes, the efficient
cause—the one that sets others in motion—is the cause to which the loss is to be
attributed, though the other causes may follow it, and operate more immediately in
producing the disaster.” Mudpie, Inc. v. Travelers Cas. Ins. of Am., 15 F.4th 885,
894 (9th Cir. 2021) (quoting Sabella v. Wisler, 59 Cal.2d 21, 31-32 (1963)).
Coverage does not exist if “an excluded risk was the efficient proximate (meaning
predominant) cause of the loss.” Id. (quoting Garvey v. State Farm Fire & Cas.
Co., 48 Cal. 3d 395, 402–03 (1989)).
Mudpie involved the same virus exclusion at issue here, and the insured
made a similar “efficient cause” argument, claiming that government orders, rather
than the virus itself, were the most direct cause of its losses. 15 F.4th at 893–94.
We rejected that argument, holding that the insured did “not plausibly allege that
‘the efficient cause,’ i.e., the one that set others in motion . . . was anything other
than the spread of the virus throughout California, or that the virus was merely a
remote cause of its losses.” Id. at 894 (citing Sabella, 59 Cal.2d at 31-32).
Because Hovagimian fails to distinguish the instant policy from that at issue in
Mudpie, Mudpie controls. The virus exclusion therefore precludes recovery for
Hovagimian’s losses caused by the COVID-19 virus, including losses caused by
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subsequent government orders responsive to the virus.
Because the virus exclusion bars coverage for all claims, we do not address
Hovagimian’s remaining arguments regarding coverage.
AFFIRMED.
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