FILED
NOT FOR PUBLICATION FEB 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GENESIS INSURANCE COMPANY, No. 11-15800
Plaintiff-Counterclaim Defendant - D.C. No. 5:06-cv-05526-JW
Appellee,
v.
MEMORANDUM *
MAGMA DESIGN AUTOMATION,
INC.,
Defendant-Counterclaim/Third-
party Plaintiff - Appellee,
v.
NATIONAL UNION FIRE INSURANCE
COMPANY, of Pittsburgh, PA,
Third-party Defendant - Appellant,
and
EXECUTIVE RISK INDEMNITY, INC.,
Third-party Defendant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted December 7, 2012
San Francisco, California
Before: TROTT and RAWLINSON, Circuit Judges, and BLOCK, District Judge.**
The district court held that Genesis Insurance Company (“Genesis”) was
entitled to coverage under a policy issued by National Union Fire Insurance
Company (“National Union”) as the equitable subrogee of Magma Design
Automation, Inc. (“Magma”). National Union timely appealed the resulting partial
judgment in favor of Genesis. Because the district court certified its judgment
under Federal Rule of Civil Procedure 54(b), we have jurisdiction. We hold as
follows:
1. National Union’s policy excluded coverage for any claim “based
upon, arising from, or in consequence of any fact, circumstance, situation,
transaction, event or Wrongful Act” that had been “the subject of any notice given
under any policy” for which National Union’s policy was “a direct or indirect
renewal or replacement.” In context, it is reasonable to interpret “under” to mean
“according to.” See Black’s Law Dictionary 1525 (6th ed. 1990); see also ACS
**
The Honorable Frederic Block, Senior United States District Judge for the
Eastern District of New York, sitting by designation.
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Sys., Inc. v. St. Paul Fire and Marine Ins. Co., 147 Cal. App. 4th 137, 146 (2007)
(explaining that policy terms are generally to be interpreted in “their ordinary and
popular sense”) (internal quotation marks omitted).
We previously held that Magma’s notice to Genesis did not comply with the
notice provision of Genesis’s policy. See Genesis Ins. Co. v. Magma Design
Automation, Inc., 386 F. App’x 728, 730 (9th Cir. 2010). It follows that notice was
not given “under” that policy. Therefore, the exclusion does not apply.
2. Coverage under National Union’s policy was contingent on
exhaustion of the primary coverage provided by Executive Risk Indemnity, Inc.
(“ERII”), for the 2004-06 policy period. ERII, however, treated the 2005 lawsuits
as claims under Magma’s 2003-04 policy. ERII’s statement that it would “adjust
its records” to reflect exhaustion of the 2004-06 policy was explicitly contingent
on a judicial determination that its decision was incorrect.
There has been no such determination. Our prior decision dealt only with
notice to Genesis. ERII, by contrast, accepted Magma’s notice as adequate.
Because Genesis failed to establish that ERII’s 2004-06 policy had, as a matter of
law, been exhausted, we reverse the district court’s partial summary judgment.
3. Our disposition revives National Union’s motion to dismiss on other
grounds, which the district court denied as moot. We leave it to the district court to
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address the merits of that motion on remand. Should it deny the motion, it must
then determine whether ERII correctly treated the patent-infringement complaint as
notice of circumstances that could give rise to a covered claim under its policy.
REVERSED and REMANDED with instructions.
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