FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AIRBORNE FREIGHT CORPORATION, a
Delaware corporation dba
Airborne Express Inc, No. 04-35989
Plaintiff-Appellant,
v. D.C. No.
CV-03-02390-RSL
ST. PAUL FIRE & MARINE OPINION
INSURANCE COMPANY, a corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
July 24, 2006—Seattle, Washington
Filed December 26, 2006
Before: J. Clifford Wallace, Kim McLane Wardlaw, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Wardlaw;
Dissent by Judge Wallace
19763
19766 AIRBORNE FREIGHT CORP. v. ST. PAUL FIRE
COUNSEL
Michael E. Gossler, Scott E. Feir and Benjamin I. Vanden-
Berghe, Montgomery Purdue Blankinship & Austin, Seattle,
Washington, for appellant Airborne Freight Corp. d/b/a Air-
borne Express.
John P. Hayes, Forsberg & Umlauf, Seattle, Washington, for
appellee St. Paul Fire & Marine Insurance Co.
OPINION
WARDLAW, Circuit Judge:
Airborne Freight Corporation (Airborne) appeals from the
district court’s grant of summary judgment to Airborne’s
insurer, St. Paul Fire & Marine Insurance Company (St. Paul),
in a breach of contract case. Airborne sought indemnification
from St. Paul after it settled lawsuits with National Fulfill-
ment, Inc. (NFI) and Sur La Table for lost and damaged pack-
ages; St. Paul refused, citing the deductible and scope of
AIRBORNE FREIGHT CORP. v. ST. PAUL FIRE 19767
coverage provisions of the contract. We review the district
court’s contract interpretation de novo, applying Washington
law. Assurance Co. of Am. v. Wall & Assocs. LLC of Olympia,
379 F.3d 557, 560 (9th Cir. 2004). We reverse.
1. Care, Custody and Control
On review of a grant of summary judgment, “[w]e are not
to weigh the evidence or determine the truth of the matter, but
only to determine whether there is a genuine issue for trial.”
Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006) (internal
quotation marks omitted). There are material facts in dispute
as to whether the United States Postal Service (USPS) was a
covered agent of Airborne and whether Airborne retained
responsibility and liability for packages once they were
handed off to the USPS for delivery to the final consignee.
[1] The interpretation of the “care, custody, and control”
exclusion in Olds-Olympic, Inc. v. Commercial Union Insur-
ance Co., 918 P.2d 923, 931 (Wash. 1996), a case involving
a comprehensive general liability policy, provides no assis-
tance in interpreting cargo liability policies, which protect pri-
mary carriers for the entire time the cargo is within their
physical or legal custody. See Koury v. Providence-
Washington Ins. Co., 145 A. 448, 449-50 (R.I. 1929); Nat’l
Fire Ins. Co. v. Davis, 179 S.W.2d 316, 319 (Tex. Civ. App.
1944); see also 11 Couch on Ins. § 154.44 (2006). When the
Washington Supreme Court interpreted “care, custody, and
control” in Olds-Olympic to require that the damaged property
be “under the supervision of the insured and [ ] a necessary
element of the work involved,” it was interpreting a policy
exclusion, which Washington courts construe narrowly
against the insurer. Olds-Olympic, 918 P.2d at 927 (“CGL
policies are marketed by insurers as comprehensive and
should be strictly construed when the insurer attempts to sub-
tract from the comprehensive scope of its undertaking.”); see
also Quadrant Corp. v. Am. States Ins. Co., 110 P.3d 733, 737
(Wash. 2005). Here, the term “care, custody, and control” is
19768 AIRBORNE FREIGHT CORP. v. ST. PAUL FIRE
found in the “scope of coverage” statement, a part of the pol-
icy which is construed liberally in favor of the insured. Phil
Schroeder, Inc. v. Royal Globe Ins. Co., 659 P.2d 509, 511
(Wash. 1983). St. Paul’s proposed interpretation that “care,
custody, and control” requires “supervision” would be incon-
sistent with the basic purpose and intent of cargo liability
insurance, namely to protect the carrier for the entire time it
remains liable to the shipper. See Koury, 145 A. at 450. More-
over, it would render illusory the specific insurance contract
between St. Paul and Airborne, which on its face covers loss
or damage by independent third parties in the shipment pro-
cess.
[2] Nor is “care, custody, and control” dependent on a for-
mal agency relationship between the primary carrier and any
independent contractors. A third party carrier serving under
contract can function as an “agent” of the primary carrier,
even where the primary carrier does not control the manner of
the agent’s performance and would not be liable for the
agent’s independent torts on a respondeat superior theory.
See O’Brien v. Haffer, 93 P.3d 930, 934 n.36 (Wash. Ct. App.
2004) (explaining difference between servant and non-servant
agents); Restatement 2d of Agency § 1, cmt. e (1958) (same).
St. Paul concedes that the insurance policy covered Air-
borne’s legal liability while packages were being processed or
delivered by third-party contract agents and common carriers.
The record fails to demonstrate that USPS was in a fundamen-
tally different position with respect to Airborne from those
whose loss or damage St. Paul concedes would be covered.
[3] Finally, the policy notes that “[i]nsurance is to attach
from the moment the Assured becomes responsible and/or lia-
ble and continues until such responsibility or liability ceases,”
a statement consistent with the common understanding of
“care, custody and control” in a cargo liability policy. Cf.
Koury, 145 A. at 450.1 Although the contract between Air-
1
This legal liability test appears to have been embraced, at least on one
occasion, by St. Paul. In response to a question from Airborne’s insurance
AIRBORNE FREIGHT CORP. v. ST. PAUL FIRE 19769
borne and USPS is not part of the record, the language of the
@Home Service Agreement between Airborne and its ship-
pers, the Airborne Express United States Service Guide, and
the deposition testimony could allow a reasonable jury to find
that Airborne remained financially and legally liable while the
USPS was in physical possession of the packages during the
final leg of delivery. Construing these facts in the light most
favorable to the non-moving party, Moran, 447 F.3d at 753,
there was a genuine issue of material fact for trial and sum-
mary judgment was improvidently granted.
2. Per-Claim Deductible
[4] St. Paul asks us to affirm summary judgment on an
alternative ground, arguing that the $2,500 deductible in the
policy must be applied on a per-package basis. As a matter of
law, Airborne’s claim for indemnification for its settlement is
not precluded by the policy deductible. The policy states that
St. Paul will “pay all claims in excess of . . . $2,500 on Sec-
tion 2 Cargo Legal Liability” after the $500,000 aggregate
deductible is reached.2 The term “claim” is undefined in the
policy, but in analogous contract disputes, Washington state
courts have followed standard dictionary definitions and held
that “the plain, ordinary meaning of claim is a demand for
compensation.” Safeco Title Ins. Co. v. Gannon, 774 P.2d 30,
33 (Wash. Ct. App. 1989); see also Windham Solid Waste
Mgmt. Dist. v. Nat’l Cas. Co., 146 F.3d 131, 134 (2d Cir.
1998) (reviewing the interpretation of the term “claim” in
insurance case law across numerous states and holding that
“[a] claim may be something other than a formal lawsuit” and
broker as to whether Airborne could file a claim if there was no bill of lad-
ing but by contract, Airborne assumed responsibility, a St. Paul employee
responded via facsimile that “there is not a claims problem if no Bill of
Lading is issued, but by contract they are liable.”
2
Both parties agree that the $500,000 annual deductible was reached in
the relevant policy year.
19770 AIRBORNE FREIGHT CORP. v. ST. PAUL FIRE
requires simply “a specific demand for relief”); Nat’l Bank of
Ariz. v. St. Paul Fire & Marine Ins. Co., 975 P.2d 711, 714
(Ariz. Ct. App. 1999) (“A claim is a demand for relief, pay-
ment, or something as a right, or as due.”). This broad defini-
tion of “claim,” untethered to a single event or occurrence, is
also consistent with insurance industry definitions. See, e.g.,
Harvey W. Rubin, Dictionary of Insurance Terms 85 (4th ed.
2000) (defining “claim” as a “request by an insured for
indemnification by an insurance company for loss incurred
from an insured peril”); Wash. State Office of the Ins.
Comm’r, A Consumer’s Insurance Glossary, www.insurance.
wa.gov/consumers/glossary.asp (defining “claim” as a “de-
mand for benefits as provided by the policy”). The claims for
breach of contract in the NFI and Sur La Table lawsuits, set-
tled for $255,000 and $25,000 respectively, were clearly
demands for compensation that derived from the sort of loss
envisioned in the contract. As a result, each lawsuit was prop-
erly subject to a single deductible.
[5] Nothing in the insurance contract indicates that the
deductible was intended to apply on a per-package basis, and
we will not re-write the policy to accord with one party’s
unexpressed intentions. See Transcon. Ins. Co. v. Wash. Pub.
Utils. Dists.’ Util. Sys., 760 P.2d 337, 340 (Wash. 1988) (“If
the language in an insurance contract is clear and unambigu-
ous, the court must enforce it as written . . . .”); State Farm
Fire & Cas. Co. v. English Cove Ass’n, 88 P.3d 986, 989
(Wash. Ct. App. 2004).3 St. Paul’s emphasis on the definition
3
Were we to conclude that the word “claim” in the policy was in fact
ambiguous because it could refer to either each individual lost package or,
as Washington law appears to hold, to any demand for compensation by
NFI and Sur La Table, then we would attempt to discern and enforce the
parties’ intent, and could consider their historical practices under the pol-
icy. See Transcon. Ins. Co., 760 P.2d at 340. However, while St. Paul
proffers evidence of Airborne’s historical behavior when charged with
individual lost package claims, this would be only marginally relevant to
determining whether the parties understood the term “claim” also to incor-
porate a single lawsuit alleging many lost packages, as well as “lost prof-
AIRBORNE FREIGHT CORP. v. ST. PAUL FIRE 19771
of “occurrence” in the policy is entirely beside the point,
because the deductible in the St. Paul/Airborne policy applies
to “all claims,” rather than to individual occurrences causing
damage. Given the guidance of the Washington courts that we
read exclusion language narrowly, Phil Schroeder, 659 P.2d
at 511, we agree with the district court that “claim” is unam-
biguous and affirm its denial of summary judgment on that
ground.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
WALLACE, Circuit Judge, dissenting:
The majority makes a strong argument that there are mate-
rial facts in dispute as to whether USPS was a covered agent
of Airborne, and whether Airborne retained responsibility and
liability for packages once they had been handed off to the
USPS. However, I would not reach the issue. Even though
ambiguities in deductible clauses are construed in favor of the
insured, see Witherspoon v. St. Paul Fire & Marine Ins. Co.,
548 P.2d 302, 308 (Wash. 1976), I am persuaded that under
Washington law the deductible in the policy should have been
applied on a per-package basis. I would therefore affirm the
summary judgment.
“To determine the parties’ intent, the court first will view
the contract as a whole, examining its subject matter and
objective, the circumstances of its making, the subsequent
conduct of the parties, and the reasonableness of their respec-
its, lost opportunities, and cancellation of existing client accounts.”
Because this extrinsic evidence would not resolve the ambiguity, we
would construe the deductible language against the insurer, as we must,
Witherspoon v. St. Paul Fire & Marine Ins. Co., 548 P.2d 302, 308 (Wash.
1976), and we would reach the same result.
19772 AIRBORNE FREIGHT CORP. v. ST. PAUL FIRE
tive interpretations.” Transcon. Ins. Co. v. Wash. Pub. Utili-
ties Dist. Utility Sys., 760 P.2d 337, 340 (Wash. 1988) (en
banc). The consistent four-year historical practice of the par-
ties was to apply a deductible to each individual claim of a
cargo loss. An individual loss was never treated as anything
but a separate claim involving a separate deductible. A former
representative of Airborne conceded during a deposition that
if each of the individual claims had been filed rather than as
lumped together in a lawsuit, they would “absolutely” have
been subject to individual deductibles.
Similarly, each of the 3,538 NFI lost claims was submitted
individually to Airborne. NFI created a 98-page document
listing all of the lost or damaged packages. There was no
“common cause” involving all of the damaged or missing
packages. Under Washington law, there were multiple occur-
rences, each giving rise to its own claim. See Greengo v. Pub.
Employees Mut. Ins. Co., 959 P.2d 657, 663-64 (Wash. 1998)
(en banc) (“Where there were two collisions, we look to see
if each has its own proximate cause. If so then there are two
accidents”); Transcon., 760 P.2d at 345 (“We are persuaded
by [the] contention that the number of triggering events
depends on the number of causes underlying the alleged dam-
age and resulting liability”).
The majority concludes that the plain meaning of “claim”
is a “demand for compensation,” and accordingly that each
lawsuit, which combined thousands of individual claims, was
a single “claim” for the purposes of the insurance policy. This
leads to absurd results. A company in Airborne’s position,
under the majority’s approach, may simply refuse to pay any
individual claims that are under the deductible amount until
a comprehensive lawsuit is filed, thereby triggering insurance
coverage that it would not have secured otherwise. I do not
think that this is what the Washington law or the parties
intended. I respectfully dissent.