Opinion
No. 08-36017 D.C. No. 1:04-cv-03106-PA No. 08-36019
2013-10-21
DARYL J. KOLLMAN, Plaintiff - Appellee, CELL TECH INTERNATIONAL, INC., a Delaware corporation, Plaintiff-intervenor - Appellee, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, a foreign corporation, Defendant - Appellant. DARYL J. KOLLMAN, Plaintiff, and CELL TECH INTERNATIONAL, INC., a Delaware corporation, Plaintiff-intervenor - Appellant, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, a foreign corporation, Defendant - Appellee.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Submitted October 8, 2013
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
National Union Fire Insurance Company appeals the district court's grant of partial summary judgment in favor of Cell Tech International, Inc. and Daryl Kollman. Cell Tech cross appeals the district court's grant of partial summary judgment in favor of National Union. We affirm.
The district court correctly held that the insured-versus-insured policy exclusion did not apply because Kollman was not an insured under the policy. Kollman was not a past executive of a subsidiary of Cell Tech. Rather, he was a past executive of two entities before they were subsidiaries. Except for HumaScan, as specified in Endorsement 12, the policy did not insure past executives of previous corporate entities of Cell Tech or its subsidiaries that existed before August 6, 1999.
The district court also correctly ruled that National Union did not have a duty to defend Cell Tech under the policy's Securities Claims coverage. The complaint alleged breach of contract, breach of fiduciary duty, conspiracy, and similar claims, not violations of securities laws. Vague references to potential securities violations are not enough, and the fact that Kollman may have been able to amend the complaint to state securities claims (which he never sought to do) is irrelevant. Oregon law requires that we consider whether the complaint's allegations, without amendment, could impose liability for conduct covered by the policy. Bresee Homes, Inc. v. Farmers Ins. Exch., 293 P.3d 1036, 1039 (Or. 2012).
AFFIRMED.