Secard Pools Inc. v. Kinsale Ins. Co.

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                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 26 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SECARD POOLS INC, a California                   No.   17-55534
Corporation; JOE SECARD; EDMOND
SECARD,                                          D.C. No.
                                                 5:16-cv-02404-JFW-SP
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

KINSALE INSURANCE COMPANY, an
Arkansas Corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                        Argued and Submitted July 9, 2018
                              Pasadena, California

Before: PAEZ, FISHER,** and CHRISTEN, Circuit Judges.

      Plaintiffs appeal an order entering summary judgment in favor of defendant

Kinsale Insurance Company. We have jurisdiction under 28 U.S.C. § 1291, and

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
we affirm.

      1. Kinsale did not breach its insurance contract with Plaintiffs because the

insurance policy’s IP Exclusion unambiguously excludes all the claims in the SSR

action from any potential for coverage.

      With respect to SSR’s allegations of misleading advertising, those

allegations did not trigger Kinsale’s duty to defend under the circumstances. Prong

three of the IP Exclusion expressly excludes from coverage any claim “arising out

of any . . . products or goods manufactured, sold, handled or distributed or work

completed by the Insured . . . in violation of any law . . . including violations of the

Lanham Act or other unfair competition statutes.” SSR did not allege any

misleading advertising by Plaintiffs separate and apart from representations that

appeared on the Secard Pools products themselves, and at oral argument in this

case Plaintiffs could not identify any such allegations in the underlying action. On

these facts, the IP Exclusion removed any potential for coverage.

      2. Because Kinsale did not breach the insurance agreement, plaintiffs’ claim

for breach of the implied covenant of good faith and fair dealing also fails as a

matter of law. See Waller v. Truck Ins. Exch., Inc., 900 P.2d 619, 639 (Cal. 1995)

(concluding that in the absence of an “obligation to defend or indemnify . . . [the

insurer] did not breach the implied covenant of good faith and fair dealing”).


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AFFIRMED.




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