FILED
NOT FOR PUBLICATION
DEC 21 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
QUEENSRIDGE TOWERS LLC, No. 15-15128
Plaintiff-Appellant, D.C. No.
2:13-cv-00197-JCM-PAL
v.
ALLIANZ GLOBAL RISKS US MEMORANDUM*
INSURANCE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted December 12, 2016**
San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Plaintiff-Appellant Queensridge Towers LLC (“Queensridge”) brought this
action against Allianz Global Risks US Insurance Company (“Allianz”) to enforce
an insurance contract. Queensridge was the developer of a condominium project in
*
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).
Las Vegas, Nevada, and Allianz insured the project under a builder’s risk insurance
policy.
On April 29, 2008, Queensridge’s general contractor, Perini Building
Company (“Perini”), gave notice to Allianz of damage to 62 panes of glass at the
project. On March 22, 2011, Queensridge submitted to Allianz a sworn proof of
loss identifying 5,364 damaged glass panes and claiming over $5,000,000 in repair
and replacement costs. On January 9, 2012, more than three and a half years after
the original notice, Allianz denied Queensridge’s claim for the damaged glass.
Three hundred and sixty four days later,1 on January 7, 2013, Queensridge
filed suit against Allianz in Nevada state court, alleging, inter alia, breach of the
insurance contract. Allianz removed the case to federal court on diversity grounds.
The district court entered summary judgement for Allianz. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Queensridge’s insurance policy contains an “Action Against Company”
provision that bars Queensridge from filing any action against Allianz for the
recovery of a claim unless the action was filed within twelve months of discovery
of the loss or damage “which gives rise to the claim.” Nevada law equitably tolls
such insurance limitation clauses during the period between the date the insured
1
2012 was a leap year, so lasted 366 days rather than the typical 365.
2
first gave notice of the loss until the date the insurer formally denies liability. See
Clark v. Truck Ins. Exch., 95 Nev. 544, 546 (1979).
Queensridge notified Allianz of its claim on April 29, 2008, and Allianz
denied the claim on January 9, 2012. The limitation clause was tolled during this
period. See id. Queensridge filed this action against Allianz on January 7, 2013.
The earliest Queensridge could have discovered the glass damage without running
afoul of the limitation clause was April 27, 2008.
The undisputed evidence shows that Queensridge discovered the glass
damage before April 27, 2008. Documents from Perini dated February 27, 2007,
and March 12, 2007, detail damage to 77 and 273 glass panes, respectively.
Several witnesses involved with the project stated that at various times during the
remainder of 2007 they observed scratches to glass at the project, including that the
windows had “been badly scratched and abraded,” and “exhibited excessive
scratching.” On October 11, 2007, Queensridge informed Perini that additional
damage, including “deep horizontal scratches on the exterior,” had been found, and
instructed Perini “to replace windows with scratches.” Because Queensridge
discovered the glass damage more than twelve months before filing this
action—even taking into account equitable tolling—the limitation provision bars
its claim for breach of contract.
3
AFFIRMED.
4