NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PREMIER POOLS MANAGEMENT No. 18-16551
CORP.,
D.C. No. 2:13-cv-02038-JAM-EFB
Plaintiff-Appellant,
v. MEMORANDUM*
COLONY INSURANCE CO.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted July 15, 2020**
San Francisco, California
Before: SILER,*** TALLMAN, and LEE, Circuit Judges.
Premier Pools Management Corporation (“PPMC”) appeals a district court
order granting summary judgment in favor of Colony Insurance Company
*
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).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
(“Colony”), holding that the “law of the case” doctrine did not prevent the court
from determining whether Colony owed a duty to defend PPMC in a trademark
infringement lawsuit; finding that Colony owed PPMC no duty to defend; and
dismissing PPMC’s claims for indemnity, bad faith, and punitive damages. We
have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Street Surfing,
LLC v. Great Am. E & S Ins. Co., 776 F.3d 603, 607 (9th Cir. 2014), we affirm.
The district court properly rejected PPMC’s argument that our prior opinion,
from a prior appeal in the same litigation, precluded the district court from
determining whether Colony owed PPMC a duty to defend. Our prior opinion
makes clear that we previously decided a single, narrow issue: whether PPMC was
an insured party, and therefore had standing to sue for coverage, under the relevant
Colony policies. Because we did not consider and decide the separate, broader
issue of whether Colony owed PPMC a duty to defend, there was no “law of the
case” on that issue, and the district court was free to decide it. See Mortimer v.
Baca, 594 F.3d 714, 720–21 (9th Cir. 2010).
The district court, on the merits, also correctly rejected PPMC’s argument
that the underlying trademark infringement lawsuit triggered Colony’s duty to
defend PPMC for “personal and advertising injury” caused by PPMC’s alleged
disparagement, use of another’s “advertising idea,” and use of another’s “slogan.”
PPMC failed to tender the amended complaint containing the relevant, new
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disparagement allegations, so Colony owed no duty to investigate those allegations
or to defend PPMC against them, as a matter of law. See Travelers Cas. & Sur.
Co. v. Emp’rs Ins. of Wausau, 29 Cal. Rptr. 3d 609, 616 (Cal. Ct. App. 2005).
And the plaintiff in the trademark infringement lawsuit accused PPMC of
infringing the company name “Premier Pools,” which the plaintiff repeatedly
characterized as a trademark—the infringement of which the Colony policies do
not cover—and not an “advertising idea” or a “slogan.” “Premier Pools” is not an
“advertising idea” or a “slogan” as a matter of California law. See, e.g., Hyundai
Motor Am. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 600 F.3d 1092, 1100
(9th Cir. 2010) (applying California law) (“[T]he proper test is whether the patents
at issue involve any process or invention which could reasonably be considered an
advertising idea.” (emphasis added) (internal quotation marks omitted)); Street
Surfing, 776 F.3d at 608–09 (applying California law) (concluding that a “slogan”
is “a brief attention-getting phrase,” and lack of allegations otherwise suggesting
that “Street Surfer” was a slogan foreclosed duty to defend for slogan
infringement). The district court thus correctly granted summary judgment in
favor of Colony.
Because Colony owed PPMC no duty to defend, PPMC’s indemnity and
bad-faith claims fail as a matter of law. See Collin v. Am. Empire Ins. Co., 26 Cal.
Rptr. 2d 391, 399 (Cal. Ct. App. 1994) (“[W]hile an insurer has a duty to defend
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suits which potentially seek covered damages, it has a duty to indemnify only
where a judgment has been entered on a theory which is actually (not potentially)
covered by the policy.”); Waller v. Truck Ins. Exch., Inc., 900 P.2d 619, 639 (Cal.
1995) (“[A] bad faith claim cannot be maintained unless policy benefits are due[.]”
(quoting Love v. Fire Ins. Exch., 271 Cal. Rptr. 246, 256 (Cal. Ct. App. 1990))).
PPMC’s punitive damages claim fails as well: other than alleging bad faith, PPMC
does not explain how Colony acted fraudulently, oppressively, or maliciously. See
Cal. Civ. Code § 3294. The district court correctly dismissed all three claims.
Costs are awarded to Colony Insurance Company.
AFFIRMED.
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