FILED
NOT FOR PUBLICATION MAY 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NEILL W. KOHLHASE; JILL No. 11-55138
KOHLHASE,
D.C. No. 8:10-cv-01470-JST-FFM
Plaintiffs - Appellants,
v. MEMORANDUM *
SAFECO INSURANCE COMPANY OF
AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Josephine Staton Tucker, District Judge, Presiding
Argued and Submitted May 9, 2012
Pasadena, California
Before: NOONAN and FISHER, Circuit Judges, and GRITZNER, Chief District
Judge.**
Appellants Neill Kohlhase and Jill Kohlhase filed this lawsuit under
California Insurance Code section 11580(b)(2), seeking to collect from Appellee
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James E. Gritzner, Chief United States District Judge
for the Southern District of Iowa, sitting by designation.
Safeco Insurance Company of America a judgment obtained against Kristy Pittman
in a state court personal injury lawsuit. The state court action arose when a pit bull
kept at 129 Esplanade Street, in San Clemente, California, property then covered
by a Safeco insurance policy, escaped and mauled Neill Kohlhase. The policy
insuring the Esplanade home provided liability coverage to the named insured,
Judith Thomas, and to family members that were “residents of your household.”
The district court granted summary judgment on behalf of Safeco finding that
“household” unambiguously applied to Thomas’ residence, 179 North Garfield
Place, in Monrovia, California, thereby precluding from liability coverage Pittman,
Thomas’ daughter, who resided at the Esplanade home. The Kohlhases appealed,
contending that “your household” was ambiguous and could reasonably be
interpreted to mean the household at the insured location. We have jurisdiction to
review under 28 U.S.C. § 1291. We hold that Pittman was not covered by the
insurance policy and accordingly affirm the district court.
Because this suit was brought in a California state court and removed to
federal court based on diversity of citizenship jurisdiction, it is subject to
California law. Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1163 (9th Cir. 1995).
Under California law, “[i]nterpretation of an insurance policy is a question of law
and follows the general rules of contract interpretation.” TRB Invs., Inc. v.
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Fireman’s Fund Ins. Co., 145 P.3d 472, 476 (Cal. 2006) (internal quotation marks
and citation omitted). “The California Supreme Court has established a three-step
process for analyzing insurance contracts with the primary aim of giving effect to
the mutual intent of the parties.” K F Dairies, Inc. & Affiliates v. Fireman’s Fund
Ins. Co. (In re K F Dairies, Inc. & Affiliates), 224 F.3d 922, 925 (9th Cir. 2000)
(citing AIU Ins. Co. v. Superior Court, 799 P.2d 1253, 1264-65 (Cal. 1990)). “The
first step is to examine the ‘clear and explicit’ meanings of the terms as used in
their ‘ordinary and popular sense.’” Id. (quoting AIU Ins., 799 P.2d at 1264). “If
contractual language is clear and explicit, it governs.” Minkler v. Safeco Ins. Co.
of Am., 232 P.3d 612, 616 (Cal. 2010) (internal quotation marks and citation
omitted).
The district court properly applied the generally adopted definition of
household found in Jacobs v. Fire Insurance Exchange, 278 Cal. Rptr. 52 (Ct.
App. 1991), which provides that under California law a household “includes family
members and others, whether related or not, who live together under one head,”
and requires that “the persons live together, be it in the same house or under one
roof or at least within one curtilage.” Id. at 57 (internal quotation marks and
citation omitted). Contrary to the Kohlhases’ assertion, the inclusion of the term
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“your,” which the policy explicitly defines to refer to Thomas and her spouse, does
not serve to vary the generally accepted, clear, and explicit meaning of household.
Under California’s definition of household Pittman is plainly not a resident
of Thomas’ household. Thomas crafted the insurance policy to protect her
investment in the Esplanade home by including rental insurance coverage, but
excluded personal property and additional living expense coverage, which refutes
any claim that the policy indicates that Thomas considered the Esplanade home to
be her household. Further, the record demonstrates that the activities of Pittman
and Thomas were not those of one household, as Thomas resided miles away,
maintained no personal room at the Esplanade home, and visited infrequently and
only after giving notice to Pittman of her intended arrival. Thomas herself referred
to the Esplanade home as Pittman’s separate household. See Jacobs, 278 Cal.
Rptr. at 59-60 (holding that the tortfeasor was not part of the insured’s household,
though they lived in separate units of a duplex owned by the insured, when the
insured considered the households at issue to be separate and the tortfeasor and the
insured did not share meals and had limited interaction).
Thomas resided at all relevant times at 179 North Garfield Place, a home in
which Pittman has never lived. Because Pittman was not part of Thomas’
household, she was not covered under the homeowner’s policy. Therefore, the
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Kohlhases were not entitled to collect from Safeco the judgment obtained against
Pittman, and the grant of summary judgment was proper.
AFFIRMED.
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