QUATTROCCHI v. ALLSTATE INDEMNITY COMPANY (2019)

MEMORANDUM ***

Deborah Quattrocchi appeals from the district court’s judgment dismissing her amended complaint with prejudice. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Friedman v. AARP, Inc., 855 F.3d 1047, 1051 (9th Cir. 2017), we affirm.

An insurance policy’s interpretation is a legal question that “follows the general rules of contract interpretation.” MacKinnon v. Truck Ins. Exch., 31 Cal.4th 635, 3 Cal.Rptr.3d 228, 73 P.3d 1205, 1212 (2003). Although “[a]ny ambiguous terms are resolved in the insureds’ favor,” E.M.M.I. Inc. v. Zurich Am. Ins. Co., 32 Cal.4th 465, 9 Cal.Rptr.3d 701, 84 P.3d 385, 389 (2004) (quoting Safeco Ins. Co. of Am. v. Robert S., 26 Cal.4th 758, 110 Cal.Rptr.2d 844, 28 P.3d 889, 893 (2001)), a court’s “assessment of the policy language must be made in the context of the nature of [the] policy as an excess insurance policy,” Qualcomm, Inc. v. Certain Underwriters at Lloyd’s, London, 161 Cal.App.4th 184, 73 Cal. Rptr. 3d 770, 777 (2008), and in light of California’s policy “that insureds should not recover the same amount twice, once from their insurance company and again from a third party,” 21st Century Ins. Co. v. Superior Court, 47 Cal.4th 511, 98 Cal.Rptr.3d 516, 213 P.3d 972, 974 (2009).

Quattrocchi argues that her policy language is ambiguous. Relying on out-of-state authority, she asserts that an excess insurer’s exclusion “for medical expenses for bodily injury ․ to the extent [primary plan] benefits are required to be payable” could be construed as inapplicable where the insured has repaid her primary plan out of a recovery from the third party tortfeasor. Rubin v. State Farm Mut. Auto. Ins. Co., 118 Nev. 299, 43 P.3d 1018, 1020 (2002).

Even if California courts were to follow Rubin, however, Quattrocchi’s policy language is materially different. It excluded elements of the loss that “are paid, payable or required to be provided ․ under the terms of any and all primary medical plans.” California courts have held that such language clearly and unambiguously excludes coverage so long as the insured is eligible for benefits under a primary plan, regardless of whether she actually receives them. See Case v. State Farm Mut. Auto. Ins. Co., 30 Cal.App.5th 397, 241 Cal. Rptr. 3d 458, 471–72 (2018); Bailey v. Interinsurance Exch., 49 Cal.App.3d 399, 122 Cal. Rptr. 508, 509–10 (1975). Therefore, Allstate’s alleged statements and conduct in denying Quattrocchi’s claim were neither fraudulent nor unfair within the meaning of California’s Unfair Competition Law, and the district court properly dismissed the suit without leave to amend. See 21st Century, 98 Cal.Rptr.3d 516, 213 P.3d at 975.

AFFIRMED.