Western World Insurance Compan v. County of Hawaii

FILED
NOT FOR PUBLICATION NOV 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WESTERN WORLD INSURANCE No. 08-16462
COMPANY,
D.C. No. 1:05-cv-00742-DAE-
Plaintiff - Appellant, LEK
v.
MEMORANDUM *
COUNTY OF HAWAII,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted October 15, 2009
Honolulu, Hawaii
Before: BEEZER, GRABER, and FISHER, Circuit Judges.
Insurer Western World Insurance Company (“Western World”) appeals
from the district court’s grant of summary judgment in favor of the County of
Hawaii on the issue of Western World’s duty to defend the County of Hawaii in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
two pending state court suits. We review de novo the district court’s grant of
summary judgment. Burlington Ins. Co. v. Oceanic Design & Constr., Inc., 383
F.3d 940, 944 (9th Cir. 2004). We have jurisdiction under 28 U.S.C. § 1291. We
affirm the district court’s declaratory judgment.
The facts of this case are known to the parties and are not repeated here.
The district court correctly determined that Western World has a duty to
defend the County of Hawaii in the pending state court suits. So long as “the
pleadings have alleged claims for relief which fall within the terms for coverage,”
there is a duty to defend whenever there is the mere possibility that coverage
exists. Hawaiian Holiday Macadamia Nut Co. v. Indus. Indem. Co., 872 P.2d 230,
233 (Haw. 1994). The policy covers the off-duty actions of the County of
Hawaii’s emergency personnel, as well as the post-mortem handling of human
bodies and resulting emotional distress damages. There is at least a possibility that
some of these covered claims may not be subject to administrative exhaustion
requirements under section 671-12 of the Hawaii Revised Statutes. Western World
has a duty to defend.
AFFIRMED.
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