FILED
NOT FOR PUBLICATION
APR 11 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVANSTON INSURANCE COMPANY, No. 21-16116
Plaintiff-counter- D.C. No. 2:19-cv-04954-MTL
defendant-Appellee,
v. MEMORANDUM*
TRACEE PORTEE MURPHY,
Defendant-counter-claimant-
Appellant.
and
CHERELLE MURPHY; et al.,
Defendants,
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Submitted April 7, 2022**
Pasadena, California
*
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).
Before: MURGUIA, Chief Judge, and GRABER and BEA, Circuit Judges.
In this declaratory judgment action, the parties dispute whether a
commercial general liability (“CGL”) policy’s exclusion for injuries arising out of
assault and battery is enforceable. Defendant Tracey Portee Murphy’s husband
was shot and killed at a fish fry sponsored by Soul Brothers motorcycle club,
which had purchased a CGL policy issued by Plaintiff Evanston Insurance
Company. The district court entered summary judgment for Plaintiff. Reviewing
de novo and construing the facts in the light most favorable to the non-moving
party, King v. County of Los Angeles, 885 F.3d 548, 556 (9th Cir. 2018), we
affirm.
The on-line application that Soul Brothers’ business manager filled out
contained the following condition, to which the business manager agreed: “I/We
confirm that we understand that [six other items] and Assault & Battery are
Excluded From This Policy.” The policy endorsement entitled “Exclusion -
Assault or Battery” provided in part that “[t]his insurance does not apply to:
Assault or Battery.”
Defendant argues that Plaintiff cannot rely on that exclusion because it is
unenforceable under Arizona’s “reasonable expectations” doctrine. In Gordinier v.
Aetna Cas. & Sur. Co., 742 P.2d 277 (Ariz. 1987), the Arizona Supreme Court
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listed four limited situations in which “Arizona courts will not enforce even
unambiguous boilerplate terms in standardized insurance contracts.” Id. at 283–84.
1. Are the terms understandable to a reasonably intelligent consumer who
might check on his or her rights? Gordinier, 742 P.2d at 283–84. On its face, the
exclusion is unambiguous and comprehensible. See Fall v. First Mercury Ins. Co.,
225 F. Supp. 3d 842, 847 (D. Ariz. 2016) (“The words ‘assault,’ ‘battery,’ and
‘arising out of’ are commonly used and widely understood. They are not
ambiguous.”).
2. Did the insured receive “full and adequate notice of the term in question”
and is the provision either “unusual or unexpected,” or one that would eviscerate
apparent coverage? Gordinier, 742 P.2d at 284. We assume, without deciding,
that notice of the exclusion was inadequate due to its wording or placement.
The exclusion is usual, not unusual, in CGL policies. See, e.g., Law & Prac.
of Ins. Coverage Litig. § 6:21 (so stating); Damien J. Arguello, Recent
Developments in Insurance Coverage, 55 Tort Trial & Ins. Prac. L.J. 373, 377
(2020) (including assault and battery among common exclusions).
In addition, the subjective expectation of the insured does not control; rather,
an expectation must be rooted in a promise or assurance by the insurer. Darner
Motor Sales, Inc. v. Universal Underwriters Ins. Co., 682 P.2d 388, 395 (Ariz.
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1984). There is no genuine issue of material fact because there is no evidence of a
promise or assurance by Plaintiff that differs from the exclusion.
Finally, the exclusion does not eviscerate the policy’s coverage. The policy
at issue applied to large categories of injuries. And unlike the insured in Do by
Minker v. Farmers Ins. Co. of Arizona, 828 P.2d 1254, 1258 (Ariz. Ct. App. 1991),
the insured in this case did not communicate expressly to the insurer that it
expected the policy to cover the excluded item.
3. Did the insurer “create an objective impression of coverage in the mind
of a reasonable insured”? Gordinier, 742 P.2d at 284. The $2 million policy limit
does not suggest to a reasonable insured that assault and battery would be included
where the policy covered a large three-day event in downtown Phoenix. Nor does
a website’s advertisement of “superior coverage,” by the broker through which the
insured bought the policy, convey a message about any particular kind of coverage
or exclusion.
4. Did the insurer reasonably induce the insured to believe that there was
coverage for the exclusion? Id. For the reasons given above in Parts 2 and 3, there
is no genuine issue of material fact.
AFFIRMED.
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