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NOT FOR PUBLICATION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.
3