NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PITZER COLLEGE, No. 14-56017
Plaintiff-Appellant, D.C. No. 2:13-cv-05863-GW-E
v.
MEMORANDUM*
INDIAN HARBOR INSURANCE
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted October 5, 2016
Submission Withdrawn January 13, 2017
Resubmitted October 10, 2019**
Pasadena, California
Before: GRABER, PAEZ, and HURWITZ, Circuit Judges.
After Pitzer College appealed the district court’s grant of summary judgment
in favor of Indian Harbor Insurance Company in this insurance coverage dispute, we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Judge Graber and Judge Hurwitz were drawn to replace Judge
Pregerson and Judge Noonan. Judge Graber and Judge Hurwitz have read the
briefs and reviewed the record.
certified two questions to the California Supreme Court: (1) “Is California’s
common law notice-prejudice rule a fundamental public policy for the purpose of
choice-of-law analysis?”; and (2) “If the notice-prejudice rule is a fundamental
public policy for the purpose of choice-of-law analysis, can a consent provision in a
first-party claim insurance policy be interpreted as a notice provision such that the
notice-prejudice rule applies?” Pitzer Coll. v. Indian Harbor Ins. Co., 845 F.3d 993,
994 (9th Cir. 2017). The California Supreme Court accepted certification and issued
an opinion concluding that (1) the notice-prejudice rule is a fundamental public
policy of California in the insurance context, and (2) “the rule generally applies to
consent provisions in the context of first party liability policy coverage and not to
consent provisions in third party liability policies.” Pitzer Coll. v. Indian Harbor
Ins. Co., 447 P.3d 669, 671 (Cal. 2019). The California Supreme Court left
undecided “whether the consent provision at issue here contemplates first party or
third party coverage.” Id.
We then received supplemental briefing from the parties addressing the
California Supreme Court’s opinion. Having considered that briefing, we vacate the
judgment of the district court and remand for further proceedings.
1. The district court held that a provision in Indian Harbor’s policy requiring
the application of New York law applied because Pitzer failed to demonstrate that
the California “notice-prejudice” rule was a fundamental state public policy.
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Because the California Supreme Court has now held to the contrary, it remains to be
determined whether California also has a “materially greater interest” than New
York in the resolution of the issue. See Nedlloyd Lines B.V. v. Superior Court, 834
P.2d 1148, 1151 (Cal. 1992) (quoting Restatement (Second) of Conflict of Laws §
187 (1971)). Because the district court never reached that issue, it should do so in
the first instance on remand.
2. If California law governs this dispute, the dispositive choice-of-law
question is the one left open by the California Supreme Court – whether the Indian
Harbor policy “contemplates first or third party coverage.” Indian Harbor Ins. Co.,
447 P.3d at 671. Because the district court never addressed this issue, we remand
for it do so in the first instance if necessary.
3. Finally, if California law governs and the Indian Harbor policy provides
first party coverage, application of the California “notice-prejudice” rule will turn
on whether the insurer suffered any prejudice from delayed notice of Pitzer’s claim.
Again, the district court did not address this issue, and it should do so on remand if
necessary.
VACATED AND REMANDED. Each party will bear its own costs.
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