Greenwich Insurance Co. v. Sharon Bankofier

FILED
NOT FOR PUBLICATION JUL 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREENWICH INSURANCE No. 13-35127
COMPANY,
D.C. No. 3:12-cv-00200-MO
Defendant-third-party-
plaintiff - Appellant,
MEMORANDUM*
v.
SHARON BANKOFIER; DUANE
BANKOFIER,
Third-party-defendant -
Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted July 7, 2014
Portland, Oregon
Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.
Greenwich Insurance Company (“Greenwich Insurance”) appeals the district
court’s summary judgment in favor of Sharon and Duane Bankofier (“the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Bankofiers”) in a diversity case brought by Oregon Realty against Greenwich
Insurance. The district court ruled that Greenwich Insurance had a duty to defend
the Bankofiers in an underlying lawsuit then pending in Oregon state court. 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.
Under Oregon law,
[w]hether an insurer has a duty to defend an action
against its insured depends on two documents: the
complaint and the insurance policy.
....
The insurer has a duty to defend if the complaint
provides any basis for which the insurer provides
coverage.
Ledford v. Gutoski, 877 P.2d 80, 82–83 (Or. 1994) (internal citations omitted).
Under Oregon Realty’s insurance policy, Greenwich Insurance had a duty to
defend claims arising “in the performance of real estate services.” Here, the
allegations in the complaint were sufficient to trigger Greenwich Insurance’s duty
to defend the Bankofiers because the complaint contained allegations of “real
estate services” related to the sale of the property. Among other things, the
complaint alleges that the Bankofiers negligently structured the sale of the property
to facilitate the subsequent investment of the sale proceeds. Thus, because the
2
complaint provided a basis for which there is coverage, Greenwich Insurance had a
duty to defend the Bankofiers.
Greenwich Insurance’s arguments that Exclusions E and J in the insurance
policy bar coverage are unpersuasive. Exclusion E is inapplicable. Because the
definition of the terms in Exclusion J are ambiguous, they should be construed in
favor of the insured. “[I]f the policy is ambiguous, we are required to apply the
rule that insurance policies are to be construed against the drafter.” Cain
Petroleum Inc. v. Zurich Am. Ins. Co., 224 Or. App. 235, 241–42 (2008) (citing
Hoffman Constr. Co. v. Fred S. James & Co., 836 P.2d 703 (Or. 1992)).
AFFIRMED.
3