RLI INSURANCE COMPANY v. Zurich American Insurance Company; The Riverstone Group, Counter-defendants-Appellees. (2019)

United States Court of Appeals, Ninth Circuit.

RLI INSURANCE COMPANY, Plaintiff-counter-defendant-Appellee, v. CITY OF VISALIA, Defendant-counter-claimant-Appellant, Zurich American Insurance Company; The Riverstone Group, Counter-defendants-Appellees.

No. 18-15668

Decided: May 16, 2019

Before: WALLACE and IKUTA, Circuit Judges, and MOLLOY,** District Judge.

Steven M. Crane, Esquire, Attorney, Berkes Crane Robinson & Seal LLP, Los Angeles, CA, for Plaintiff-counter-defendant-Appellee Leonard Charles Herr, Esquire, Herr Pedersen & Berglund LLP, Visalia, CA, for Defendant-counter-claimant-Appellant Randy Mark Marmor, Esquire, Sinnott, Puebla, Campagne & Curet APLC, San Francisco, CA, Randolph P. Sinnott, Sinnott, Puebla, Campagne & Curet APLC, Los Angeles, CA, for Counter-defendant-Appellee Christopher R. Wagner, Esquire, Attorney, Gordon & Rees LLP, Los Angeles, CA, for Counter-defendant-Appellee

MEMORANDUM ***

The City of Visalia appeals from the district court’s judgment on the pleadings for RLI Insurance Company. We have jurisdiction under 28 U.S.C. § 1291.

Subsection (f)(2) of the excess insurance policy between RLI and Visalia excludes coverage “for the cost of removing, nullifying or cleaning up substances described in [ (f) ](1) above.” The substances described in subsection (f)(1) are “smoke, vapors, soot, acids, alkalis, toxic chemicals, solids, liquids or gases, waste materials, or other irritants, contaminants or pollutants.” Unlike subsection (f)(1), subsection (f)(2) does not include an exception to its exclusion for a “discharge, dispersal, release or escape” of such substances that “is sudden and accidental.” Because the complaint in the underlying action sought recovery only for the costs of removing, nullifying, or cleaning up contaminants or pollutants, RLI has no duty to defend or indemnify Visalia in that action. See L.A. Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 805–06 (9th Cir. 2017).¹

AFFIRMED.

FOOTNOTES

1. The district court did not err in rejecting Visalia’s request for judicial notice as irrelevant.

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