FILED
NOT FOR PUBLICATION JUL 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GENESIS INSURANCE COMPANY, No. 09-15204
Plaintiff-counter-claim- D.C. No. 5:06-cv-05526-JW
defendant - Appellant,
v. MEMORANDUM *
MAGMA DESIGN AUTOMATION,
INC.,
Defendant-counter-claim-3rd-
party-plaintiff - Appellee,
v.
NATIONAL UNION FIRE INSURANCE
COMPANY, of Pittsburgh, PA and
EXECUTIVE RISK INDEMNITY, INC.,
Third-party-defendants -
Appellees.
GENESIS INSURANCE COMPANY, No. 09-15297
Plaintiff-counter-claim- D.C. No. 5:06-cv-05526-JW
defendant - Appellee,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
MAGMA DESIGN AUTOMATION,
INC.,
Defendant-counter-claim-3rd-
party-plaintiff - Appellant,
v.
NATIONAL UNION FIRE INSURANCE
COMPANY, of Pittsburgh, PA and
EXECUTIVE RISK INDEMNITY, INC.,
Third-party-defendants -
Appellees.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted April 15, 2010
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District
Judge.**
Appellant and Cross-Appellee Genesis Ins. Co. (Genesis) challenges the
district court’s summary judgment in favor of Appellee and Cross-Appellant
Magma Design Automation, Inc. (Magma). The district court concluded that
**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
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Genesis was at risk to provide coverage for certain post-policy period claims made
against Magma and its officers and directors. On cross-appeal, Magma contends
that if we determine that Genesis was not at risk to provide coverage, then we
should direct the district court to enter a summary judgment concluding that
Appellee National Union Fire Ins. Co. of Pittsburgh, PA (National Union) was at
risk to provide coverage.
1. We do not agree that the notice of circumstances provided to Genesis
triggered coverage for the post-policy period claims. The notice did not contain
any of the specific information called for in Section 15(c) of the policy and falls
short of the types of notice we have upheld as sufficiently specific under similar
notice provisions. See, e.g., Continental Ins. Co. v. Metro-Goldwyn-Mayer, Inc.,
107 F.3d 1344, 1348 (9th Cir. 1997); see also Continental Ins. Co. v. The Superior
Court of Los Angeles County, 37 Cal.App.4th 69, 76 (1995). Accordingly, because
the notice provided by Magma was not sufficiently specific, it “cannot be regarded
as providing the kind of written notice that constitutes an insuring event under the
[notice of circumstances] provision.” KPFF, Inc. v. California Union Ins. Co., 56
Cal.App.4th 963, 975 (1997) (footnote reference omitted).
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2. Contrary to Magma’s assertion, Genesis cannot be charged with
constructive notice of any facts it would have discovered had it conducted an
investigation. Under California law, an insurer “cannot be charged with
constructive notice of circumstances it had no duty to investigate.” Id. at 978.
Because Magma failed to comply with the written notice requirements of the
Genesis Policy, no duty to investigate arose. See id. at 977-78.
3. Genesis did not waive its right to object to the sufficiency of the notice of
circumstances provided by Magma. “California courts will find waiver when a
party intentionally relinquishes a right, or when that party’s acts are so inconsistent
with an intent to enforce the right as to induce a reasonable belief that such right
has been relinquished.” Intel Corp. v. Hartford Acc. & Indem. Co., 952 F.2d 1551,
1559 (9th Cir. 1991) (citation omitted). In the insurance context, “where waiver
has been found, there is generally some element of misconduct by the insurer or
detrimental reliance by the insured.” Id. Magma has not demonstrated that
Genesis intentionally relinquished its right to object to the sufficiency of the notice
of circumstances, does not allege misconduct, and has failed to provide evidence
establishing detrimental reliance. Magma’s reliance on California Insurance Code
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§ 553 is misplaced. That statutory provision has not been applied when assessing
the adequacy of a notice of circumstances proffer for a claims-made policy.
4. We agree with Genesis that coverage did not extend to the post-policy
period claims through the related claims provision. The related claims provision
was not intended to provide coverage for post-policy period claims that related to
an admittedly uncovered claim.
Accordingly, we reverse the summary judgment entered against Genesis,
and vacate the summary judgment to the extent it granted National Union’s motion
and dismissed Magma’s claims against Appellee Executive Risk Indemnity, Inc.
We remand this matter to the district court for further proceedings consistent with
this disposition.
REVERSED in part, VACATED in part, AND REMANDED.
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