Philadelphia Indem. Ins. Co. v. Thompson & Co. Ins. Services, Inc.

Full title: PHILADELPHIA INDEMNITY INSURANCE COMPANY…

Court: United States Court of Appeals, Ninth Circuit

Date published: Feb 6, 2002

26 F. App'x 770 (9th Cir. 2002)

Opinion

26 Fed.Appx. 770 (9th Cir. 2002) PHILADELPHIA INDEMNITY INSURANCE COMPANY, Plaintiff--counter-defendant--Appellee, v. THOMPSON & COMPANY INSURANCE SERVICES, INC., Defendant--counter-claimant--Appellant. No. 00-56647. D.C. No. CV-00-01372-TJH. United States Court of Appeals, Ninth Circuit. February 6, 2002

Submitted February 4, 2002. ^*

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Central District of California, Terry J. Hatter, Jr., Chief District Judge, Presiding.

Before PREGERSON, RYMER, and T.G. NELSON, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

Thompson & Company Insurance Services, Inc. ("Thompson"), an insurance brokerage firm, appeals the district court's summary judgment for the Philadelphia Indemnity Insurance Company ("Philadelphia") in its action seeking a declaration of rights under an Insurance Agents and Brokers Professional Liability Policy ("the Policy") which Philadelphia had issued to Thompson. We affirm.

Philadelphia has eliminated any and all possibility of coverage under the terms of the policy because both underlying actions are "claims for fees," which are expressly

Page 771.

excluded from coverage. See Tana v. Professionals Prototype I Ins. Co., 47 Cal.App.4th 1612, 55 Cal.Rptr.2d 160, 163 (Ct.App.1996).

Thompson's claimed "reasonable expectation" of coverage is not relevant because the language of the policy is clear and unambiguous. American Star Ins. Co. v. Ins. Co. of the West, 232 Cal.App.3d 1320, 284 Cal.Rptr. 45, 52 (Ct.App.1991).

The fact that the underlying actions contain claims for negligent misrepresentation does not give rise to a duty to defend both because California law considers negligent misrepresentation to be purposeful rather than accidental for the purpose of insurance coverage, Chatton v. Nat'l Union Fire Ins. Co., 10 Cal.App.4th 846, 13 Cal.Rptr.2d 318, 328 (Ct.App.1992), and because the underlying actions are "claims for fees," which are excluded from coverage regardless of whether they allege negligence.

Thompson has failed to put forth sufficient evidence to raise any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is no evidence that Philadelphia has waived its right to deny coverage. Waller v. Truck Ins. Exch., Inc., 11 Cal.4th 1, 44 Cal.Rptr.2d 370, 900 P.2d 619, 636 (Cal.1995). Philadelphia is not estopped from denying coverage because Thompson has made no showing of detrimental reliance on Philadelphia's actions. Id. at 638.

AFFIRMED.