Unpublished Disposition, 883 F.2d 1023 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1023 (9th Cir. 1989)

John K. CHAR, D.D.S., and John K. Char, D.D.S., Inc.,Plaintiff-Appellant,v.CHUBB & SON, INC., Chubb Group of Insurance Companies;Federal Insurance Company; CNA Insurance; JohnDoe 2 through 10, Defendants-Appellees.

No. 88-2782.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 5, 1989.Decided Aug. 23, 1989.

Before GOODWIN, Chief Judge, and HUG and TANG, Circuit Judges.


John K. Char sued his malpractice insurance carriers for damages, alleging that they had wrongfully refused to defend him in proceedings by the State of Hawaii to enjoin him from unauthorized medical practice, and in 16 counts seeking civil penalties for false advertising and abuse of his license to practice dentistry.

The district court terminated this essentially frivolous lawsuit with appropriate summary judgments and declaratory relief. Char appealed the judgment against him on all claims, as well as the award of sanctions and attorneys fees.

The district court held as a matter of law that the insurance carriers had not undertaken to defend the dentist in state disciplinary proceedings but had only contracted to defend him in actions for damages brought by users of his professional services. Char failed to raise a material question of fact in support of his claim that the state disciplinary proceeding was an action for damages resulting from the provision of professional services.

Char's other claims were so utterly bereft of legal merit as to deserve no further consideration.

Char argues that the district court should have allowed him to amend his complaint so that he could claim tortious non-renewal of his malpractice insurance. Yet he never properly moved to amend the complaint under Fed. R. Civ. P. 15.

Char attacks the award of defendants' attorneys fees pursuant to Haw.Rev.Stat. Sec. 607-14. Attorneys fees were properly awarded on all the claims. See Healy-Tibbetts Constr. Co. v. Hawaiian Indep. Refinery, Inc., 673 F.2d 284 (9th Cir. 1982).

Char also complains that he was improperly sanctioned under Fed. R. Civ. P. 11 for filing a motion to reconsider the district court's order granting summary judgment. Char's motion to reconsider can be fairly characterized as frivolous, and in any event, Rule 11 sanctions were proper because of Char's reliance on a case that had been depublished by the Hawaii Supreme Court and lacked any precedential value.

We AFFIRM the judgment of the district court as well as the awards of sanctions and attorneys fees.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3