Zero Corp. v. Employers Ins. of Wausau

Full title: ZERO CORPORATION, a corporation, Plaintiff-Appellee, v. EMPLOYERS…

Court: United States Court of Appeals, Ninth Circuit

Date published: Dec 10, 1998

166 F.3d 345 (9th Cir. 1998)

Opinion

166 F.3d 345 (9th Cir. 1998) ZERO CORPORATION, a corporation, Plaintiff-Appellee, v. EMPLOYERS INSURANCE OF WAUSAU, A Mutual Company, a corporation; Chubb Corporation, Defendants,and FEDERAL INSURANCE COMPANY, a corporation, Defendants-Appellants. ZERO CORPORATION, a corporation, Plaintiff-Appellee, v. EMPLOYERS INSURANCE OF WAUSAU, A Mutual Company, a corporation, Defendant-Appellant, FEDERAL INSURANCE COMPANY, a corporation, Defendant. D.C. No. CV-94-03164-RAP. Nos. 96-56456, 96-56457 United States Court of Appeals, Ninth Circuit December 10, 1998

Submitted December 7, 1998. ^**

** The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a) and Ninth Circuit Rule 34-4.

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the Central District of California, Richard A. Paez, District Judge, Presiding.

Before BEEZER, TASHIMA and SILVERMAN, 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.

Appellants appeal the district court's grant of summary judgment in favor of appellee Zero Corporation on Zero's claim that the insurers owed a duty to defend Zero against administrative environmental claims and an obligation to reimburse Zero for alleged defense fees and costs. We postponed consideration of the case pending decisions by the Supreme Court of California in the following three cases: Foster-Gardner, Inc. v. National Union Fire Ins. Co., 959 P.2d 265 (Cal.1998); Fireman's Fund Ins. Co. v. Los Angeles County Superior Court, 964 P.2d 1277 (Cal.1998) (dismissing review and permitting Court of Appeal opinion, 78 Cal.Rptr.2d 418, to remain published); and Aerojet-General Corp. v. Transport Indem. Co., 948 P.2d 909 (Cal.1997). Based on the recently decided Foster-Gardner case, we now reverse.

As the Supreme Court of California recently made clear, only a court proceeding instigated by the filing of a complaint is a "suit" triggering an insurer's duty to defend. Foster-Gardner, 959 P.2d at 279. The Environmental Protection Agency's administrative action against Zero thus did not constitute a "suit," the insurers had no duty to defend Zero, and the expenses Zero incurred are not reimbursable defense costs.

This conclusion renders the remaining issues on appeal moot. We reverse and remand for proceedings consistent with this memorandum.

REVERSED AND REMANDED.