Opinion
No. 09-56347.
Argued and Submitted February 16, 2011.
Filed March 1, 2011.
James L. Goldman, Pircher, Nichols Meeks, Los Angeles, CA, Jeffrey John Ward, Thompson Loss Judge LLP, Washington, DC, for Plaintiff-Appellee.
Robert V. Closson, Esquire, Senior Counsel, Kellene Johnson McMillan, Hirsch, Closson, McMillan Schroeder, APLC, San Diego, CA, for Defendants-Appellants.
Michael P. Tone, Esquire, Kimberly E. Rients Blair, Wilson Elser Moskowitz Edelman Dicker LLP, Chicago, IL, Robert Cooper, Esquire, Wilson Elser Moskowitz Edelman Dicker LLP, Los Angeles, CA, for Counter-defendant-Appellee.
Appeal from the United States District Court for the Central District of California, Christina Snyder, District Judge, Presiding. D.C. No. 2:08-cv-00937-CAS-CT.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The parties are familiar with the facts of this case, which we will not recite.
We need not reach the propriety of the district court's conclusion that the arbitration award was entitled to collateral estoppel effect. Regardless of whether full preclusion applies, the award and the underlying complaint provide a sufficient record to determine if summary judgment was appropriate. See Horace Mann Ins. Co. v. Barbara B., 4 Cal.4th 1076, 17 Cal. Rptr.2d 210, 846 P.2d 792, 795-96 (1993) (determination as to the duty to defend usually may be made based on a comparison of the terms of the policy and the allegations in the underlying complaint).
Greenwich had neither a duty to defend nor a duty to indemnify Media Breakaway or Richter. Greenwich's policy contained two broadly worded exclusions precluding coverage of intentional conduct or conduct resulting in ill-gotten profits. All allegations in the MySpace complaint, and all findings of liability in the arbitration award, involved intentional conduct and wrongful profits. Neither the complaint nor the award suggests " any potential for liability under the policy." Horace Mann, 17 Cal.Rptr.2d 210, 846 P.2d at 797. Likewise, the Indian Harbor policy was subject to similar exclusions and did not provide coverage. We therefore need not reach the question of whether California Insurance Code section 533 barred coverage.
Although the district court opined that the award made "some passing reference to some conduct that could be considered negligent," we review the grant of summary judgment de novo, see Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc), and conclude the award involved no covered conduct.
Because the MySpace action did not give rise to a duty to defend, Greenwich and Indian Harbor are entitled to reimbursement based on reservations of rights in the Greenwich policy and Indian Harbor correspondence. See Scottsdale Ins. Co. v. MV Transp., 36 Cal.4th 643, 31 Cal. Rptr.3d 147, 115 P.3d 460, 467 (2005).