M & F Fishing, Inc. v. Certain Lloyds of London Underwriters

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 16 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
M & F FISHING, INC.; M/V KOORALE, No. 08-56788
Plaintiffs - Appellants, D.C. No. 3:06-cv-00934-DMS-
BLM
v.
CERTAIN LLOYDS OF LONDON MEMORANDUM *
UNDERWRITERS; GE FRANKONA
REINSURANCE CO. LTD.; UNITED
STATES DEPARTMENT OF
COMMERCE AKA National Marine
Fisheries Services; SEAPAC MARINE
INSURANCE MANAGERS,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted February 11, 2010**
Pasadena, California
*
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).
Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, *** Chief
District Judge.
The district court granted summary judgment to Certain Lloyds of London
Underwriters. M&F appeals the judgment and also appeals the district court’s denial
of its motion to default Underwriters for failure to post a bond under California
Insurance Code § 1616. The district court had admiralty jurisdiction under 28 U.S.C.
§ 1333(1) and we have appellate jurisdiction under 28 U.S.C. § 1291. Because we
affirm the judgment against M&F, any error regarding the bond was harmless and we
need not reach the merits of that issue.
M&F brought several claims for coverage under an insurance policy issued by
Underwriters. In ruling on Underwriters’ motion for summary judgment, the district
court limited its analysis to the policy provision covering “negligence of the Masters
Officers Crew or Pilots,” otherwise known as the Inchmaree Clause. M&F argues that
the district court erred because it had sufficiently pled and disclosed during discovery
its intent to assert claims under other provisions of the policy. However, the only facts
alleged in M&F’s complaint and discovery responses relate to the negligence of the
substitute custodian, George Copitas. Underwriters therefore were not on notice that
M&F intended to sue under other provisions of the policy, and the district court did
not abuse its discretion in limiting M&F’s claim. See Bell Atl. Corp. v. Twombly, 550
***
The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
U.S. 544, 555 (2007); Roberts v. Arizona Bd. of Regents, 661 F.2d 796, 798 (9th Cir.
1981).
Copitas’s alleged negligence was not covered by the Inchmaree Clause. As
substitute custodian of the ship, Copitas was not expected to operate the ship in any
seagoing capacity; he was essentially a court appointed shoreside manager while the
vessel was in custodia legis. M&F did not show that Copitas was acting as a master,
officer, crew or pilot at the time of his alleged negligence. His negligence therefore
was not covered. See Founders’ Ins. Co. v. Rogers, 281 F.2d 332, 337-39 (9th Cir.
1960). Likewise, M&F did not show that Copitas was acting as a “repairer or
charterer” at the time he was allegedly negligent, so that provision of the policy does
not apply.
M&F’s only other claim was that Underwriters were negligent in preparing and
administering the insurance policy. M&F provided no evidence that Underwriters’
failure to issue a final policy or affix the disclosures required by the California
Insurance Code caused it any injury. See Cal. Ins. Code §§ 382, 1764.1. Nor did
M&F show that Underwriters negligently failed to disclose a limitation on the
coverage that M&F could reasonably expect from a standard port risk insurance
policy. See Logan v. John Hancock Mut. Life Ins. Co., 41 Cal. App. 3d 988, 995, 116
Cal. Rptr. 528, 532 (1974). The district court therefore properly granted Underwriters’
motions for summary judgment and properly denied M&F’s motion for
reconsideration.
AFFIRMED.