Aetna Casualty & Surety Company, Plaintiff-counterdefendant, v. Carl Lindner; Keith Lindner, Defendants-counterclaimants-appellants, v. the Harbor Insurance Company; the Continental Insurancecompanies, Counter-defendants-appellees, 92 F.3d 1191 (9th Cir. 1996)

MEMORANDUM^** 

In 1984, Harbor Insurance Company ("Harbor") issued a "claims made" director-officer liability insurance policy ("Policy") to Carl and Keith Lindner ("Lindners"). In 1986, Donald Albrecht filed an action in state court against the Lindners, but did not serve them until 1988. The Lindners did not notify Harbor of Albrecht's law suit until 1989, years after the Policy had expired and only shortly before Albrecht amended his complaint to name the Lindners in their capacities as directors.

Harbor declined to defend and indemnify the Lindners, arguing that no "claim" had been "made" during the time the Policy was in force. The district court entered summary judgment in favor of Harbor, and the Lindners have timely appealed. We review de novo, see Simply Fresh Fruit, Inc. v. The Continental Ins. Co., 84 F.3d 1105, 1107 (9th Cir. 1996); St. Paul Fire & Marine Ins. Co. v. American Bank, 33 F.3d 1159, 1161, 1163 (9th Cir. 1994), and we affirm.

Unlike a so-called "occurrence-based" policy, which provides coverage for injuries that take place during the policy period regardless of whether the losses are reported during that period, a "claims made" policy covers injuries only if claims therefor are asserted during the policy period, including any "tail", where applicable. The requirement that claims must be timely asserted means, inter alia, that the insurer must receive timely notice thereof, whether real or potential. California Union Ins. Co. v. American Diversified Savs. Bank, 914 F.2d 1271, 1278 (9th Cir. 1990), cert. denied sub nom. Sahni v. Harbor Ins. Co., 498 U.S. 1088 (1991); Homestead Ins. Co. v. American Empire Surplus Lines Ins. Co., 44 Cal. App. 4th 1297, 1304, 52 Cal. Rptr. 2d 268, 272 (1996); Thoracic Cardiovascular Assocs., Ltd. v. St. Paul Fire & Marine Ins. Co., 181 Ariz. 449, 453, 891 P.2d 916, 920 (1994), review denied (1995).

Because Harbor had no notice of the law suit against the Lindners until long after the Policy had expired, no "claims" were "made" against the Policy. As we find no merit to any of the Lindners' remaining arguments, the decision appealed from is

AFFIRMED.