James Gordon, Jr. v. Commonwealth Marketing Group I

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 17 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JAMES SAMUEL GORDON, JR., No. 11-35877
Plaintiff - Appellee, D.C. No. 2:08-cv-05074-LRS
v.
MEMORANDUM*
COMMONWEALTH MARKETING
GROUP INC., a Pennsylvania corporation,
Defendant-third-party-
plaintiff - Appellee,
v.
IMG ASSOCIATES, LLC, a Georgia
limited liability company and IMPULSE
MARKETING GROUP, INC., a Georgia
corporation,
Third-party-defendant -
Appellants.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted October 12, 2012**
Seattle, Washington
Before: TASHIMA, M. SMITH, and CHRISTEN, Circuit Judges.
Third-party Defendants-Appellants IMG Associates and Impulse Marketing
Group, Inc. (collectively, IMG), appeal the district court’s summary judgment in
favor of Defendant-Third-party Plaintiff, Commonwealth Marketing Group, Inc.
(Commonwealth) under the parties’ Marketing Service Agreement (Agreement),
which is governed by Georgia law. As the facts and procedural history are familiar
to the parties, we do not recite them here except as necessary to explain our
disposition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo a grant of summary judgment. Universal Health Servs.,
Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). Under Georgia law, the
duty to defend is broader than the duty to indemnify. Shafe v. Am. States Ins. Co.,
653 S.E.2d 870, 873 (Ga. Ct. App. 2007). The duty to defend arises upon the
allegation of statutory violations; the merit of those claims is irrelevant. Penn-
America Ins. Co. v. Disabled Am. Veterans Inc., 481 S.E.2d 850, 852 (Ga. Ct. App.
1997), aff’d 490 S.E.2d 372 (Ga. 1997). The district court granted summary
judgment in favor of Commonwealth because it found that IMG breached its
contractual duty to defend Commonwealth against the claims brought by James
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Samuel Gordon, Jr. (Gordon) under the CAN-SPAM Act. We agree. Clause 14(a)
of the Agreement provides expressly that IMG “shall indemnify, defend, . . . and
hold CMG and its officers, directors, shareholders, agents, affiliates and assigns . . .
harmless at all times . . . from and against and in respect of, any liability, claim,
deficiency, loss, damage, penalty or injury . . . arising from . . . any breach by IMG
. . . of the CAN-SPAM Act of 2003 . . .” IMG’s duty to defend thus arose
unambiguously when Gordon asserted the CAN-SPAM Act claims against
Commonwealth. Penn-America, 490 S.E.2d at 376. IMG urges us to read the
Agreement as triggering the duty to defend only in the case of actual breach. We
reject IMG’s interpretation because it would “render[] . . . meaningless” the
language in the contract providing that IMG “shall defend . . . any . . . claim.”
Landmark American Ins. Co. v. Khan, 705 S.E.2d 707, 710 (Ga Ct. App. 2011)
(quoting ALEA London Ltd. v. Woodcock, 649 S.E.2d 740 (Ga Ct. App. 2007))
Accordingly, we affirm the decision of the district court granting summary
judgment in favor of Commonwealth for the amount of $131,938.93 for the
attorneys’ fees and costs incurred in its defense against Gordon’s claims.
AFFIRMED.