FILED
NOT FOR PUBLICATION OCT 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARYL J. KOLLMAN, No. 08-36017
Plaintiff - Appellee, D.C. No. 1:04-cv-03106-PA
CELL TECH INTERNATIONAL, INC., a
Delaware corporation, MEMORANDUM*
Plaintiff-intervenor -
Appellee,
v.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH,
PENNSYLVANIA, a foreign corporation,
Defendant - Appellant.
DARYL J. KOLLMAN, No. 08-36019
Plaintiff, D.C. No. 1:04-cv-03106-PA
and
CELL TECH INTERNATIONAL, INC., a
Delaware corporation,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiff-intervenor -
Appellant,
v.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH,
PENNSYLVANIA, a foreign corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Submitted October 8, 2013**
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
**
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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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.
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