Unpublished Disposition, 899 F.2d 18 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 18 (9th Cir. 1990)

EVANSTON INSURANCE COMPANY, an Illinois corporation,Plaintiff-Appellee,v.Matthew EBERT, Defendant-Appellant.

No. 88-4196.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 1989.Decided March 21, 1990.

Before TANG, CYNTHIA HOLCOMB HALL and BRUNETTI, Circuit Judges.


MEMORANDUM* 

Matthew Ebert appeals from summary judgment for Evanston Insurance Company. The district court held that Ebert cannot benefit from a malpractice claims-made insurance policy Evanston issued to Fred A. Tucker & Co. ("FATCO"), Ebert's marine insurance broker. We review the district court's summary judgment de novo and the record in a light most favorable to the nonmoving party. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). We affirm.

The parties' dispute arises from the use of the term "claim" in the Evanston policy's "multiple claims clause." Ebert contends that the multiple claims clause permits relation back of his lawsuit against FATCO filed after the policy period to "claims" Ebert made to FATCO during the policy period. Ebert thus argues that FATCO's Evanston policy covers his lawsuit against FATCO for failure to procure Ebert marine insurance. We disagree.

In this diversity of citizenship action, Washington State insurance contract law controls our analysis. See Evanston Ins. Co. v. Fred A. Tucker & Co., 872 F.2d 278, 279 (9th Cir. 1989) (relying on Washington state law for analysis of same policy). Accordingly, we first determine that neither the Evanston policy definition of "claim" nor the multiple claims clause is ambiguous. See Washington Pub. Util. Dist.'s Util. Sys. v. Public Util. Dist. No. 1 of Clallam County, 112 Wash. 2d 1, 10, 771 P.2d 701, 706-7 (Wash.1989) (en banc). We therefore need not resort to extrinsic evidence to interpret the policy, and need only enforce the clear and unambiguous language of the policy. Id.

1. Ebert's "Claims" During the Policy Period

Ebert contends that because the Evanston policy definition of "claim" is broad, it encompasses telephone calls his lawyer Mark Quigley made during the policy period to FATCO concerning the loss of Ebert's boat. Ebert further contends that the multiple claims clause relates his otherwise untimely lawsuit against FATCO back to Quigley's calls. Construction of the Evanston policy as a whole, however, does not support Ebert's contentions.

Under Washington law, we must construe the entire policy "together in order to give force and effect to each clause." Washington Pub. Util. Dist.'s Util. Sys., 112 Wash. 2d at 10, 771 P.2d at 706. Construing the policy in its entirety, we find that the policy applies only to claims made against the insured for some type of malpractice. (See e.g., the "Notice of Claim or Suit" clause.) While Quigley's telephone calls to FATCO forewarned of the consequences should FATCO commit malpractice in processing the loss of Ebert's boat, Quigley did not make a malpractice claim to which the Evanston policy applies. See Hoyt v. St. Paul Fire & Marine Ins., 607 F.2d 864, 866 (9th Cir. 1979) (attorney's letter of inquiry did not constitute a malpractice claim).

2. Requirements of the Multiple Claims Clause.

Even if we accepted Ebert's construction of "claim" in the policy as encompassing Quigley's calls, we could still not find the multiple claims clause applicable to Ebert's case. The multiple claims clause relates a claim made outside of the policy period back to a claim made within the policy period only if the two claims "aris [e] out of a single act, error or omission or a series of related acts, errors or omissions." Ebert has failed to raise a triable issue of fact sufficient to withstand summary judgment that his lawsuit against FATCO, filed after the policy period, arose out of or was related to the purpose of Quigley's calls made during the policy period. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) ("trial judge shall ... grant summary judgment if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law").

Ebert asserts a relation between Quigley's calls to encourage FATCO's expeditious processing of the loss of Ebert's boat and Ebert's lawsuit against FATCO for failure to procure insurance.1  Quigley's declaration belies any relation between the two "claims," however. As Quigley stated, FATCO had not failed to expedite processing Ebert's loss when Quigley called. FATCO's alleged delay in processing Ebert's loss because it had failed to procure him marine insurance therefore amounts to mere speculation. Ebert thus failed to produce "sufficient evidence favoring [him] ... for a jury to return a verdict" for him, and summary judgment was appropriate. Anderson at 249.

Given the record before us and the absence of a genuine issue of material fact, we must affirm the district court's holding that Evanston was entitled to judgment as a matter of law. Ebert made no claim during the policy period which could extend FATCO's Evanston malpractice insurance coverage to Ebert's suit against FATCO through the multiple claims clause.

AFFIRMED.

 *

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

 1

Evanston moved to strike the portion of Ebert's reply brief asserting this relation as not raised in his opening brief or before the district court. The record shows, however, that Ebert made this assertion in the pretrial order and elsewhere sufficiently for our consideration, and that his reply brief was responsive to Evanston's brief. See E.E.O.C. v. Union Bank, 408 F.2d 867, 868-69 (9th Cir. 1969)