NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TODD ALBRIGHT, an individual, No. 18-35770
Plaintiff-Appellant, D.C. No. 3:17-cv-05062-RBL
v.
MEMORANDUM*
ALLIANT SPECIALTY INSURANCE
SERVICES, INC., a California Corporation
doing business in Washington; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted August 28, 2019**
Seattle, Washington
Before: HAWKINS, McKEOWN, and BYBEE, Circuit Judges.
In 2016, Alliant Insurance Services, Inc. and its subsidiary, Alliant Specialty
Insurance Services, Inc., (together, “Alliant”) were negotiating contracts, called “co-
broker agreements,” with Arthur J. Gallagher & Co. (“AJG”), under which two
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
brokerages that AJG had recently acquired would sell and service Alliant’s insurance
products. An Alliant employee circulated a draft co-broker agreement containing a
term that excluded one of AJG’s brokers, Todd Albright, from performing any work
under the agreement. Albright sued Alliant, claiming the term defamed him in
several states, tortiously interfered with his business expectancy, and negligently
injured him. The district court granted summary judgment in Alliant’s favor and
denied Albright’s motion for partial summary judgment on choice of law. It also
denied Albright’s motion for reconsideration. Albright appeals these rulings. We
have jurisdiction under 28 U.S.C. § 1291 and affirm.
The district court did not err by applying Washington law to Albright’s
defamation claims and denying Albright’s motion for partial summary judgment on
choice of law. There is no outcome-determinative difference between the law of
Washington and the laws of California, Illinois, and Oklahoma as they relate to the
resolution of Albright’s defamation claims. All four states recognize a conditional
“common interest” privilege for otherwise-defamatory communications that is lost
when the declarant is motivated by malice or otherwise abuses the privilege. See
Moe v. Wise, 989 P.2d 1148, 1154–58 (Wash. Ct. App. 1999); see also Taus v.
Loftus, 151 P.3d 1185, 1209–10 (Cal. 2007); Kuwik v. Starmark Star Marketing and
Amin., Inc., 619 N.E.2d 129, 134–36 (Ill. 1993); Trice v. Burress, 137 P.3d 1253,
1260 n.15 (Okla. Civ. App. 2006); Thornton v. Holdenvill Gen. Hosp., 36 P.3d 456,
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461 (Okla. Civ. App. 2001). Given the absence of a “real” conflict between the
relevant laws, the district court properly applied Washington law and denied
Albright’s motion for partial summary judgment. See Seizer v. Sessions, 940 P.2d
261, 264 (Wash. 1997).
Nor was there error in granting summary judgment in Alliant’s favor on
Albright’s defamation claims. The allegedly defamatory co-broker agreements were
communicated in furtherance of a “legitimate business relationship” between Alliant
and AJG, and thus were covered by the common interest privilege. See Corbin v.
Madison, 529 P.2d 1145, 1151 (Wash. Ct. App. 1974). Albright’s evidence does not
create a genuine issue of material fact as to whether Robert Shearer, the author of
the co-broker agreement, was motivated by malice when he drafted and published
the relevant language.
There was also no error in granting summary judgment in Alliant’s favor on
Albright’s tortious interference claims. Albright presented insufficient evidence that
Alliant “interfered for an improper purpose or used improper means” to exclude him
from a business expectancy. Leingang v. Pierce Cnty. Med. Bureau, Inc., 930 P.2d
288, 300 (Wash. 1997).
There was no abuse of discretion in denying Albright’s motion for
reconsideration. Albright fails to show clear error in the district court’s underlying
ruling on the motions for summary judgment, and the newly discovered evidence he
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presented to the district court did not create an issue of material fact as to the
existence of malice. Carroll v. Nakatani, 342 F.3d 934, 940, 945 (9th Cir. 2003).
AFFIRMED.
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