Summary
In Century Surety Co. v. Helleis, 367 Fed.Appx. 765, 766 (9th Cir.2010), the Ninth Circuit rejected an insurance company's reliance on Mirpad because, in Century Surety, the person who was evicted was not a corporation, but instead was an individual doing business under another name and thus Mirpad was inapplicable.
Summary of this case from Alco Iron & Metal Co. v. American International Specialty Lines Insurance Co.Opinion
Nos. 07-56615, 09-55205.
Argued and Submitted February 3, 2010.
Filed February 23, 2010.
Douglas J. Collodel, Esquire, Maria Louise Cousineau, Sedgwick, Detert, Moran Arnold LLP, Los Angeles, CA, for Plaintiff-counter-defendant-Appellee.
Jerome R. Moe, Esquire, Law Office of Jerome R. Moe, Rancho Santa Fe, CA, Tanya M. Schierling, Solomon Ward Seidenwarm and Smith, San Diego, CA, for Defendant.
Michael W. Vivoli, Esquire, Matthew Joseph Yarling, Esquire, Vivoli and Associates, San Diego, CA, for Defendant-counter-claimant-Appellant.
Appeal from the United States District Court for the Southern District of California, M. James Lorenz, Senior District Judge, Presiding. D.C. Nos. CV-05-01548-MJL, 3:05-cv-01548-L-LSP.
Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
This is an appeal by 350 W.A., LLC ("350") from the entry of summary judgment in favor of Century Surety Company ("Century") in Century's action for a declaratory judgment that a commercial insurance policy it issued to 350 as owner of a commercial office building did not provide coverage for the wrongful eviction of one of the tenants. The tenant, Jacqueline Helleis d.b.a. Flagship Research, had obtained a sizable judgement against 350 for the wrongful eviction. California law applies.
We reverse the summary judgment on coverage and hold that under the relevant provision of the policy, where coverage was provided for wrongful eviction of "premises that a person occupies," there was coverage for the wrongful eviction of this tenant, who was a person occupying the premises. Century attempts to rely on Mirpad, LLC v. California Insurance Guarantee Association, 132 Cal.App.4th 1058, 34 Cal.Rptr.3d 136 (2005), to suggest that a business is not a "person" within the meaning of the policy provision, even though the entity evicted in this case was an individual doing business in the commercial building insured under the policy. See Pinkerton's, Inc. v. Superior Court, 49 Cal.App.4th 1342, 57 Cal.Rptr.2d 356, 358 (1996); Providence Washington Ins. Co. v. Valley Forge Ins. Co., 42 Cal.App.4th 1194, 50 Cal.Rptr.2d 192, 194 (1996). Mirpad involved an eviction of a corporation and did not cover the situation presented in this case. See Mirpad, 34 Cal.Rptr.3d at 144.
We also reject Century's alternative contention that the general exclusion of breach of contract injury swallows the specific coverage for wrongful eviction injury. See Medill v. Westport Ins. Corp., 143 Cal.App.4th 819, 49 Cal.Rptr.3d 570, 579-80 (2006). Additionally, we reject Century's argument that 350's late tender substantially prejudiced Century. See Northwestern Title Sec. Co. v. Flack, 6 Cal. App.3d 134, 85 Cal.Rptr. 693, 696 (1970).
Appellant 350 also appeals from the entry of the stipulated judgment enforcing the terms of the bond agreement requiring 350 to provide collateral for the appeal bond in the wrongful eviction appeal in state court. The judgment was in accordance with the parties' agreement that contemplated entry of the judgment if 350 was not able to substitute collateral for the bond. 350 failed to demonstrate why the agreement should not be enforced. The district court's entry of the stipulated judgment is affirmed.
AFFIRMED in part and REVERSED in part and REMANDED. Costs will be awarded to 350 W.A., LLC.