Cms Security, Inc. v. The Burlington Insurance Compa

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 23 2011

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

CMS SECURITY, INC., a California No. 10-15672
corporation; EVERAL THOMPSON, an
individual, D.C. No. 3:09-cv-02216-MMC

Plaintiffs - Appellants,
MEMORANDUM*
v.

THE BURLINGTON INSURANCE
COMPANY, an unkown entity,

Defendant - Appellee.

Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding

Submitted May 13, 2011**
San Francisco, California

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER and N.R. SMITH, Circuit Judges, and MILLS, Senior

District Judge.***

CMS Security, Inc. (CMS) appeals the district court’s order granting

summary judgment for The Burlington Insurance Company (TBIC). CMS

challenges the enforceability of a policy exclusion in its TBIC-issued commercial

general liability policy under California law. We have jurisdiction under 28 U.S.C.

§ 1291 and we affirm.

CMS’s general liability policy includes an exclusion for claims arising out of

intentional acts of assault or battery. This exclusion was conspicuous, because it

was (1) identified by name in the listing of forms and endorsements at the

beginning of the policy, (2) set forth on its own separate page, (3) placed among

other policy exclusions “where one would expect an insured to look to determine

the policy limits,” and (4) labeled in boldfaced and enlarged lettering “so that it

[would] attract the reader’s attention.” Haynes v. Farmers Ins. Exch., 89 P.3d 381,

385, 387 (Cal. 2004). The exclusion is also plain and clear, because it states

“precisely and understandably, in words that are part of the working vocabulary of

the average layperson,” that it changes the policy to exclude coverage for claims

***
The Honorable Richard Mills, Senior District Judge for the U.S.
District Court for Central Illinois, Springfield, sitting by designation.
arising out of assault or battery. Id at 385. The exclusion is therefore enforceable

under California law.

AFFIRMED.