Deborah Quattrocchi v. Allstate Indemnity Company

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBORAH QUATTROCCHI, No. 18-15208
Plaintiff-Appellant, D.C. No.
2:17-cv-01578-JAM-EFB
v.
ALLSTATE INDEMNITY COMPANY, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted August 6, 2019**
San Francisco, California
Before: O’SCANNLAIN, SILER,*** and NGUYEN, Circuit Judges.
Deborah Quattrocchi appeals from the district court’s judgment dismissing
her amended complaint with prejudice. We have jurisdiction under 28 U.S.C.
*
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).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
§ 1291. Reviewing de novo, see Friedman v. AARP, Inc., 855 F.3d 1047, 1051
(9th Cir. 2017), we affirm.
An insurance policy’s interpretation is a legal question that “follows the
general rules of contract interpretation.” MacKinnon v. Truck Ins. Exch., 73 P.3d
1205, 1212 (Cal. 2003). Although “[a]ny ambiguous terms are resolved in the
insureds’ favor,” E.M.M.I. Inc. v. Zurich Am. Ins. Co., 84 P.3d 385, 389 (Cal.
2004) (quoting Safeco Ins. Co. of Am. v. Robert S., 28 P.3d 889, 893 (Cal. 2001)),
a court’s “assessment of the policy language must be made in the context of the
nature of [the] policy as an excess insurance policy,” Qualcomm, Inc. v. Certain
Underwriters at Lloyd’s, London, 73 Cal. Rptr. 3d 770, 777 (Ct. App. 2008), and
in light of California’s policy “that insureds should not recover the same amount
twice, once from their insurance company and again from a third party,” 21st
Century Ins. Co. v. Superior Court, 213 P.3d 972, 974 (Cal. 2009).
Quattrocchi argues that her policy language is ambiguous. Relying on out-
of-state authority, she asserts that an excess insurer’s exclusion “for medical
expenses for bodily injury . . . to the extent [primary plan] benefits are required to
be payable” could be construed as inapplicable where the insured has repaid her
primary plan out of a recovery from the third party tortfeasor. Rubin v. State Farm
Mut. Auto. Ins. Co., 43 P.3d 1018, 1020 (Nev. 2002).
2
Even if California courts were to follow Rubin, however, Quattrocchi’s
policy language is materially different. It excluded elements of the loss that “are
paid, payable or required to be provided . . . under the terms of any and all primary
medical plans.” California courts have held that such language clearly and
unambiguously excludes coverage so long as the insured is eligible for benefits
under a primary plan, regardless of whether she actually receives them. See Case
v. State Farm Mut. Auto. Ins. Co., 241 Cal. Rptr. 3d 458, 471–72 (Ct. App. 2018);
Bailey v. Interinsurance Exch., 122 Cal. Rptr. 508, 509–10 (Ct. App. 1975).
Therefore, Allstate’s alleged statements and conduct in denying Quattrocchi’s
claim were neither fraudulent nor unfair within the meaning of California’s Unfair
Competition Law, and the district court properly dismissed the suit without leave
to amend. See 21st Century, 213 P.3d at 975.
AFFIRMED.
3