United Capitol Ins. Co. v. Ferma Corp.

Full title: UNITED CAPITOL INSURANCE COMPANY, a Corporation, Plaintiff-Appellee, v…

Court: United States Court of Appeals, Ninth Circuit

Date published: May 29, 1997

114 F.3d 1197 (9th Cir. 1997)

Opinion

114 F.3d 1197 (9th Cir. 1997) UNITED CAPITOL INSURANCE COMPANY, a Corporation, Plaintiff-Appellee, v. FERMA CORPORATION, Defendant-Appellant. No. 95-16670. United States Court of Appeals, Ninth Circuit May 29, 1997

Submitted November 7, 1996. ^*

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4.

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the Northern District of California, No. CV-92-04367-CW (WDB); Claudia Wilken, District Judge, Presiding.

N.D.Cal., 1995 WL 481686.

AFFIRMED.

Before: NORRIS and KOZINSKI, Circuit Judges, and WARDLAW, ^** District Judge.

** The Honorable Kim McLane Wardlaw, United States District Judge for the Central District of California, sitting by designation.

MEMORANDUM ^***

*** 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.

The "Subsidence Exclusion" at issue precludes coverage for damage "directly or indirectly arising out of, caused by, resulting from, contributed to or aggravated by" subsidence caused by appellant's operations. [ER 8, at 193] Although the underlying lawsuit alleged that appellant caused a number of injuries to the adjoining property, all the injuries alleged in the complaint stemmed from the same cause: subsidence.

Citing extrinsic evidence, appellant claims there was a possibility that some injuries were caused directly by vibrations generated by their equipment and thus were not covered by the subsidence exclusion. See Montrose Chemical Corp. v. Superior Court, 861 P.2d 1153, 1157 (Cal.1993) ("Facts extrinsic to the complaint also give rise to a duty to defend when they reveal a possibility that the claim may be covered by the policy."). The district court, however, reviewed the evidence and determined that it doesn't "indicate [ ] in any way that damage was directly caused by vibrations rather than by subsidence resulting from vibrations." Order Granting Plaintiff United Capitol's Motion for Summary Judgment at 20. This finding is not clearly erroneous. See Insurance Co. of Pennsylvania v. Associated Int'l Ins., 922 F.2d 516, 520 (9th Cir.1990).

AFFIRMED.