NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL FEIZ MEDICAL CORP., No. 15-56652
Plaintiff-Appellant, D.C. No. 2:15-cv-04195-MWF-
PJW
v.
MEMORANDUM*
SCOTTSDALE INSURANCE CO.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted April 5, 2017
Pasadena, California
Before: M. SMITH and N.R. SMITH, Circuit Judges, and FEINERMAN, District
Judge.**
Plaintiff Michael Feiz Medical Corporation appeals from the district court’s
denial of its summary judgment motion and grant of Defendant Scottsdale
Insurance Company’s cross-motion for summary judgment. The parties dispute
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gary Feinerman, District Judge for the U.S. District
Court for the Northern District of Illinois, sitting by designation.
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whether Feiz’s business liability insurance policy (the policy) requires Scottsdale
to indemnify Feiz for two components—prejudgment interest on the breach of
contract damages, and attorney fees and costs—of an adverse arbitration award in a
case brought by a former employee against Feiz for breach of employment contract
and related California Labor Code violations. The district court held that
Scottsdale did not promise to indemnify Feiz for those amounts. We affirm in part,
reverse in part, vacate in part, and remand for further proceedings.
Under California law, language in an insurance policy is given its ordinary
meaning as a layperson would understand it, and ambiguities are resolved in favor
of coverage. See AIU Ins. Co. v. Superior Court, 799 P.2d 1253, 1264-65 (Cal.
1990); Crane v. State Farm Fire & Cas. Co., 485 P.2d 1129, 1130 (Cal. 1971).
Exclusionary language must be “plain and clear,” and is “construed strictly against
the insurer.” See Crane, 485 P.2d at 1130.
1. As to the arbitrator’s award of prejudgment interest on the breach of
contract damages, we reverse the district court’s ruling; the policy requires
Scottsdale to indemnify Feiz. The policy requires Scottsdale to pay any “Loss”
that Feiz incurred if it were sued for an “Employment Practices Wrongful Act.”
Among those wrongful acts is “breach of an actual or implied employment
contract.” The policy’s definition of “Loss” includes “damages, judgments,
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settlements, front pay and back pay, [and] pre-judgment or post judgment interest
awarded by a court” (emphasis added).
Scottsdale identifies no policy language that unambiguously negates the
policy’s express promise of coverage for prejudgment interest. The policy
language on which Scottsdale relies excluded from coverage “amounts owed under
any employment contract.” However, the employment contract at issue is silent on
prejudgment interest, and it therefore cannot be said that prejudgment interest is
owed under that contract. Scottsdale next argues that California law treats
prejudgment interest as a component of the underlying contract damages, which
the policy indisputably excludes from coverage because it is an “amount[] owed
under any employment contract.” But the relevant question is how the contract
damages and prejudgment interest were treated not under California law, but under
the policy. The policy expressly referred to “damages” and “prejudgment …
interest” separately in its promise of coverage. Id. If the policy treated
prejudgment interest as part and parcel of damages, there would have been no need
to mention prejudgment interest in the promise of coverage. Therefore, because
prejudgment interest is expressly included in the policy’s coverage, and there is no
“plain and clear” language excluding that coverage, Scottsdale must indemnify
Feiz for amount of the prejudgment interest award.
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2. As to the award of attorney fees and costs, we affirm the district court
only to the extent that it held Scottsdale is not required to indemnify Feiz for
attorney fees and costs attributable to the breach of contract claim, but we vacate
and remand for further proceedings on the indemnification of attorney fees and
costs attributable to the California Labor Code claims.
The arbitrator awarded attorney fees and costs under the employment
contract, which expressly provided for the payment of such costs and fees required
to enforce the terms of the contract. Although attorney fees and costs are generally
included in the policy’s coverage, the policy expressly excludes from coverage
“amounts owed under any employment contract.” Because the attorney fees and
costs spent on the breach of contract claim are “amounts owed under [the]
employment contract,” the district court correctly held those amounts are excluded
from coverage, and Scottsdale is not required to indemnify Feiz for those amounts.
However, by pegging the fees and costs award solely to the contract claim,
the arbitrator neglected to determine what amount of fees and costs was spent on
the Labor Code claims.1 Under California law, Feiz is entitled to attorney fees and
1 The happenstance that the arbitrator lumped all the fees and costs together and
deemed them awarded only under the contract does not relieve Scottsdale of its
duty to indemnify; rather, the court must look past the labels used to describe a
judgment to the nature of the obligation that underlies it. See Vandenberg v.
Superior Court, 982 P.2d 229, 245 (Cal. 1999) (“[C]ourts must focus on the nature
of the risk and the injury, in light of the policy provisions, to [determine
coverage].”).
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costs spent on the Labor Code claims. See California Labor Code section 218.5
(an employee who prevails in an action for the nonpayment of wages is entitled to
attorney fees and costs); Kirby v. Immoos Fire Prot., Inc., 274 P.3d 1160, 1167
(Cal. 2012). Those fees and costs fall within the policy’s coverage for “reasonable
and necessary legal costs, charges, fees, and expenses,” and there are no applicable
exclusions that remove these costs and fees from coverage. Therefore, Scottsdale
must indemnify Feiz for these amounts.
On remand, the district court should apportion the attorney fees and costs
attributable to arbitrating the Labor Code claims and those attributable to
arbitrating the breach of contract claims, and require Scottsdale to indemnify Feiz
only for those fees and costs apportioned to the Labor Code violations.
REVERSED in part as to prejudgment interest, AFFIRMED in part
and VACATED in part as to attorney fees and costs, and REMANDED.
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