Scottsdale Insurance Company v. Hudson Specialty Insurance Co.

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                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               JUN 18 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


SCOTTSDALE INSURANCE                             No.   17-15785
COMPANY,
                                                 D.C. No. 4:15-cv-02896-HSG
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

HUDSON SPECIALTY INSURANCE
COMPANY,

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                 Haywood S. Gilliam, Jr., District Judge, Presiding

                       Argued and Submitted June 11, 2018
                            San Francisco, California

Before: SCHROEDER, GOULD, and DIAZ,** Circuit Judges.

      This appeal involves a dispute between two insurance companies concerning

coverage of an underlying lawsuit in which a parking garage patron was severely


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Albert Diaz, United States Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
injured. Defendant-Appellee Hudson Specialty Insurance Company (“Hudson”)

insured the company that leased the parking garage on a primary level, and

Plaintiff-Appellant Scottsdale Insurance Company (“Scottsdale”) insured the same

company on an excess level. This dispute centers upon whether the Hudson Policy

coverage had a $1 million limitation on liability as stated in the policy or whether

the Parking Operations Errors and Omissions Endorsement (“Endorsement”) added

an additional $1 million.

      The District Court held that Coverage A of the Hudson Policy

unambiguously incorporates the Endorsement. The court further held that the

Endorsement is subject to Coverage A’s $1 million limitation on liability for “each

occurrence,” and that Hudson’s total liability for the occurrence involved in the

underlying lawsuit is therefore limited to $1 million.

      Scottsdale on appeal contends that the Endorsement created claims-made

coverage that is separate from Coverage A’s occurrence-based coverage. The

Endorsement, however, explicitly states that it “amend[s]” Coverage A “to

include” the Endorsement. As Coverage A is occurrence-based coverage, the

Endorsement is likewise occurrence-based coverage that is subject to a $1 million

limitation on liability. Moreover, the Hudson Policy, including the endorsements,




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must be read as a whole. Adams v. Explorer Ins. Co., 132 Cal. Rptr. 2d 24, 33 (Ct.

App. 2003).

      Even if the Hudson Policy were ambiguous, however, Scottsdale’s argument

would nevertheless fail. Although the declarations page of the Hudson Policy

states that the Endorsement covers “each claim” and that Coverage A covers “each

occurrence,” when the policy, including the endorsements, conflicts with the

declarations page, the policy language controls. See Hervey v. Mercury Cas. Co.,

110 Cal. Rptr. 3d 890, 898 (Ct. App. 2010) (“[A]ny ambiguity in the [d]eclaration

‘is resolved by’ the terms of the policy.” (quoting United Servs. Auto. Ass’n v.

Baggett, 258 Cal. Rptr. 52, 59 (Ct. App. 1989))). The language of the

Endorsement and Coverage A resolve any ambiguity in the declarations page.

      AFFIRMED.




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