SCREEN ACTORS GUILD-AFTRA V. FEDERAL INSURANCE CO, No. 13-56402 (9th Cir. 2016)
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 15 2016 FOR THE NINTH CIRCUIT SCREEN ACTORS GUILD-AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS No. 13-56402 D.C. No. 2:11-cv-07123-DMGVBK Plaintiff - Appellant, MEMORANDUM* v. FEDERAL INSURANCE COMPANY, Defendant - Appellee. Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding Argued and Submitted October 22, 2015 Pasadena, California Before: RAWLINSON and NGUYEN, Circuit Judges and PONSOR,** Senior District Judge. Screen Actors Guild - American Federation of Radio and Television Artists (SAG) appeals the district court’s decision denying its motion for summary * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Michael A. Ponsor, Senior District Judge for the U.S. District Court for Massachusetts, sitting by designation. judgment and granting defendant-Appellee Federal Insurance Company’s (Federal) motion for summary judgment. Because SAG has not identified a covered Loss for which Federal breached its duty to indemnify, SAG’s claims for breach of contract and for breach of the covenant of good faith and fair dealing fail. See Davis v. Farmers Ins. Grp., 134 Cal. App. 4th 100, 105 (2005) (explaining that “[t]he first step in any insurance coverage dispute is to determine whether the insuring provisions of the policy afforded coverage for the alleged losses”). SAG is not entitled to coverage based solely on a claim for attorney’s fees untethered to any insurable Loss. See Health Net, Inc. v. RLI Ins. Co., 206 Cal. App. 4th 232, 257 (2012) (holding that “the claim for attorney’s fees is covered only to the extent it arises out of the covered wrongful acts.”) Under California law, a pre-existing obligation is not a covered loss. See August Entm’t, Inc. v. Philadelphia Indem. Ins. Co., 146 Cal. App. 4th 565, 578 (2007). As SAG admittedly had a pre-existing obligation to pay the foreign levy funds to the state court plaintiffs, SAG’s failure to honor that obligation is not a covered Loss as a matter of law. See id. Accordingly, SAG is not entitled to coverage for the $330,000.00 in attorney’s fees assessed against SAG in the state court case, because the award was based on the state court plaintiffs’ success in securing payment of the pre-existing obligation. See Health Net, 206 Cal. App. 4th at 257 2 (emphasizing that “[c]overage cannot be bootstrapped based solely on a claim for attorney’s fees”). AFFIRMED. 3
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