FILED
NOT FOR PUBLICATION JUN 12 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESPARZA ENTERPRISES, INC. and No. 11-17110
LUIS ESPARZA,
D.C. No. 1:10-cv-1079-LJO-JLT
Plaintiffs - Appellants,
v. MEMORANDUM*
BURLINGTON INSURANCE CO.,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted May 17, 2013
San Francisco, California
Before: CLIFTON and BEA, Circuit Judges, and KORMAN, Senior District
Judge.**
Esparza Enterprises, a farm labor contractor, and its owner Luis Esparza
(collectively “Esparza”) assert that Burlington Insurance Company (“Burlington”),
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior United States District Judge for the
Eastern District of New York, sitting by designation.
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Esparza Enterprises’s general liability insurance carrier, wrongfully refused to defend
and to indemnify Esparza for liability arising from the death of an Esparza employee.
The district court granted summary judgment to Burlington on Esparza’s claims for
breach of contract and breach of the implied covenant of good faith and fair dealing,
finding that three separate provisions in the Burlington policy at issue excluded the
underlying claim from coverage. We agree with the district court that the Burlington
policy’s employer’s liability exclusion and contractual liability exclusion preclude
coverage for the underlying action. We do not reach the question whether the
automobile exception applies under the circumstances of this case.
Tellingly, Esparza does not argue that the plain meaning of the employer’s
liability exclusion and the contractual liability exclusion are ineffective to deny
coverage for defense and indemnity. Instead, Esparza, who purchased the policy with
the assistance of a broker, argues that the relevant policy provisions and amendments
incorporating the pertinent exclusions were inconspicuous and inconsistent with the
expectations of a reasonable insured. However, under California law, the expectations
of the parties to an insurance contract are relevant only when the contract language
itself is ambiguous. See In re K F Dairies, Inc. & Affiliates v. Fireman’s Fund Ins.,
224 F.3d 922, 925-26 (9th Cir. 2000). Moreover, the relevant provisions, which were
listed at the beginning of the policy, accurately titled, and identified in large type, do
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not qualify as “inconspicuous” under California precedent. See Merrill & Seeley, Inc.
v. Admiral Ins. Co., 225 Cal. App. 3d 624, 630-31 (1990) (“Courts have invalidated
exclusions under the conspicuous requirement where (1) they are not included under
the exclusion section and are placed on an overcrowded page; (2) they are included
in a ‘General Limitations’ section but in a dense pack format; or (3) they are hidden
in fine print in a policy section bearing no clear relationship to the insuring clause.”).
“An insurance company has the right to limit the coverage of a policy issued by it and
when it has done so, the plain language of the limitation must be respected.” Nat’l
Ins. Underwriters v. Carter, 17 Cal. 3d 380, 384 (1976) (internal quotation marks
omitted).
AFFIRMED.
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