Filed: Dec. 13, 2019
Latest Update: Mar. 03, 2020
Summary: FILED NOT FOR PUBLICATION DEC 13 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EURAUPAIR INTERNATIONAL, INC., No. 18-55933 Plaintiff-Appellant, D.C. No. 8:17-cv-01661-JVS-DFM v. IRONSHORE SPECIALTY INSURANCE MEMORANDUM* COMPANY, Defendant-Appellee. Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Submitted December 10, 2019** Pasadena, California Before: O'SCANNLAI
Summary: FILED NOT FOR PUBLICATION DEC 13 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EURAUPAIR INTERNATIONAL, INC., No. 18-55933 Plaintiff-Appellant, D.C. No. 8:17-cv-01661-JVS-DFM v. IRONSHORE SPECIALTY INSURANCE MEMORANDUM* COMPANY, Defendant-Appellee. Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Submitted December 10, 2019** Pasadena, California Before: O'SCANNLAIN..
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FILED
NOT FOR PUBLICATION
DEC 13 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EURAUPAIR INTERNATIONAL, INC., No. 18-55933
Plaintiff-Appellant, D.C. No.
8:17-cv-01661-JVS-DFM
v.
IRONSHORE SPECIALTY INSURANCE MEMORANDUM*
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted December 10, 2019**
Pasadena, California
Before: O'SCANNLAIN, PAEZ, and OWENS, Circuit Judges.
EurAuPair International, Inc. appeals the district court’s dismissal with
prejudice of its suit against Ironshore Specialty Insurance Company. The facts are
known to the parties, so we do not repeat them here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
I
EurAuPair contends that California’s notice-prejudice rule applies to its
insurance policy. However, EurAuPair’s policy with Ironshore is claims-made-
and-reported, and the notice-prejudice rule does not apply to claims-made-and-
reported policies. Burns v. Int’l Ins. Co.,
929 F.2d 1422, 1425 (9th Cir. 1991).1
Accordingly, the notice-prejudice rule does not apply to EurAuPair’s policy, and
Ironshore need not demonstrate substantial prejudice to deny coverage.
II
EurAuPair argues that the insurance policy is ambiguous as to whether a
claim may be reported during a renewal policy period, and it urges us to construe
this ambiguity in EurAuPair’s favor. Here, there is no ambiguity. The policy
requires EurAuPair to report claims to Ironshore “as soon as practicable but in no
event later than thirty (30) days after the end of the Policy Period.” “Policy Period”
is defined as “the period from the inception date of this Policy to the expiration
date of this Policy as set forth in Item 2 of the Declarations.” In the first policy,
Item 2 declares that the expiration date is October 1, 2015. Thus, the policy is
unambiguous in its requirement that EurAuPair report all claims that were made
1
The Ninth Circuit used the term “claims-made,” but the policy it described was
claims-made-and-reported.
Burns, 929 F.2d at 1424 (“[T]he insurer is only
responsible for claims made during the term of the policy . . . concerning which the
insurer is notified within the term of the policy plus sixty days.”).
2
between October 1, 2014 and October 1, 2015 to Ironshore no later than October
31, 2015.
III
EurAuPair argues that it is entitled to coverage for reasons of equity.
However, equitable relief is only justified under unique circumstances, such as
when the insured did not have the opportunity to purchase an extended reporting
period and the insured reports the claim immediately upon learning it exists. Root
v. Am. Equity Specialty Ins. Co.,
30 Cal. Rptr. 3d 631, 647 (Ct. App. 2005). Here,
EurAuPair knew of the claim within the policy period and had thirty days after the
policy expired to report it yet waited sixteen months to do so. Accordingly,
equitable relief is not appropriate.
IV
EurAuPair accuses Ironshore of breach of contract relating to the dispute
resolution provision for failure to mediate in good faith. The district court
dismissed this claim because EurAuPair did not allege any cognizable damages.
However, the district court should have counted mediation fees as damages.
EurAuPair paid those fees with the expectation that it would receive something of
value—namely, a mediation process conducted in good faith, offering the
possibility of resolving the dispute outside of court. If Ironshore did not mediate in
good faith, then EurAuPair paid for something that it did not receive.
3
Nevertheless, we may affirm the district court’s decision “on any basis fairly
presented by record that, as a matter of law, sustains the judgment.” United States
v. Burnette,
698 F.2d 1038, 1048 (9th Cir. 1983). Ironshore, represented by its
attorney, agreed to and participated in a mediation session with EurAuPair in
which the parties were unable to resolve their dispute. We cannot reasonably infer
from these facts that Ironshore failed to mediate in good faith. See Ashcroft v.
Iqbal,
556 U.S. 662, 678 (2009). Accordingly, the district court did not err when it
dismissed EurAuPair’s claim for breach of contract relating to the dispute
resolution provision.
V
EurAuPair argues that the district court was wrong to dismiss the request for
declaratory judgment because EurAuPair still has a viable claim against Ironshore
under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200.
However, EurAuPair did not raise this claim in the district court, so we will not
consider it on appeal. See Ferris v. Santa Clara Cty.,
891 F.2d 715, 719 (9th Cir.
1989). Since there are no remaining controversies between the parties, the district
court did not err in dismissing the request for declaratory judgment.
VI
EurAuPair lists as an issue that the district court erred by not allowing it to
amend its complaint, but EurAuPair did not discuss this issue in the body of its
4
opening brief. Consequently, such argument is waived. See Martinez-Serrano v.
INS,
94 F.3d 1256, 1259 (9th Cir. 1996).
AFFIRMED.
5