Nationwide Mutual Ins. Co. v. Zurich American Ins. Co.

[6] 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA [9] 10 NATIONWIDE MUTUAL INSURANCE No. 1:21-cv-00944-TLN-CSK COMPANY and AMCO INSURANCE 11 COMPANY, 12 Plaintiffs, ORDER 13 v. 14 ZURICH AMERICAN INSURANCE COMPANY and AMERICAN 15 GUARANTEE & LIABILITY INSURANCE COMPANY, [16] Defendants. [18] This matter is before the Court on Plaintiffs Nationwide Mutual Insurance Company and [19] AMCO Insurance Company’s (collectively, “Plaintiffs”) Motion for Summary Judgement (ECF [20] No. 81) and Defendants Zurich American Insurance Company and American Guarantee and [21] Liability Insurance Company’s (collectively, “Defendants”) Cross Motion for Summary [22] Judgment (ECF No. 82). All motions have been fully briefed. For the reasons set forth below, [23] the Court DENIES Plaintiffs’ motion and GRANTS Defendants’ motion. [24] /// [25] /// [26] /// [27] /// [28] 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This action arises out of an insurance coverage dispute between Plaintiffs and Defendants. 3 Plaintiffs are liability insurers for Motor Parts Distributors, Inc. (“Motor Parts”), a distribution 4 company that specializes in car parts and tools. (ECF No. 55 at 2.) Defendants are liability 5 insurers for Express Services, Inc. (“Express”), a staffing agency who provided employee staffing 6 services to Motor Parts. (Id.) Plaintiffs allege Defendants had a duty to defend and indemnify 7 Motor Parts in an underlying personal injury action (“Underlying Action”) because Motor Parts is 8 an additional insured under Express’s insurance policies (“Subject Policies”) with Defendants. 9 (Id. at 2–3.) 10 A. The Underlying Action 11 On May 10, 2019, Edward Laverone filed a personal injury action against Plaintiffs’ 12 insured, Motor Parts, and Defendants’ insured, Express, in Stanislaus County Superior Court for 13 injuries sustained in an accident caused by Edward Gonzales Jr. (ECF No. 55 at 20.) At the time 14 of the accident, Gonzalez was a delivery driver who was staffed by Express to work for Motor 15 Parts. (Id. at 5.) 16 The accident took place in the early afternoon of January 3, 2018. (Id. at 22.) On that 17 day, Gonzalez used his car to pick up auto parts for delivery at Motor Parts’ Modesto, California 18 warehouse and then completed his deliveries for Motor Parts in Sonora, California. (ECF No. 8919 1 at 3.) After completing these deliveries, Gonzalez informed his supervisor at Motor Parts that 20 he was clocking out for the day due to mechanical problems with his car. (Id.) On his way home, 21 Gonzalez crashed into Laverone’s car, killing Gonzales and injuring Laverone. (Id. at 5.) 22 In October 2022, the parties to the Underlying Action entered into a settlement agreement 23 and release under which Laverone received $8.85 million. (ECF No. 55 at 5.) Of this amount, 24 Plaintiffs paid $6 million on behalf of Motor Parts and Defendants paid the remaining $2.85 25 million on behalf of Express. (Id.) 26 /// 27 /// 28 /// 1 B. The Subject Policies 2 Defendant Zurich American Insurance Company (“Zurich”) issued Commercial Insurance 3 Policy No. PRA 5854213-05 (“Zurich Policy”) to Express for the policy period of October 1, 4 2017, to October 1, 2018. (ECF No. 55 at 4.) Express is a named insured on the Zurich Policy, 5 but Motor Parts is not. (Id.) 6 The Zurich Policy includes Hired And/Or Non-Owned Auto Coverage, with limits of 7 liability in the amount of $1 million per accident and provides coverage for “damages awarded 8 against an insured because of bodily injury caused by an accident and resulting from the 9 ownership, maintenance, or use of a covered auto, subject to various policy terms, conditions, and 10 exclusions.” (Id. (internal quotation marks omitted).) The Zurich Policy also requires Zurich to 11 defend insureds against suits seeking covered damages. (Id.) 12 Defendant American Guarantee & Liability Insurance Company (“American”) issued 13 Commercial Liability Umbrella Liability Insurance Policy No. UMB 5498877-05 (“American 14 Policy”) to Express for the policy period of October 1, 2017, to October 1, 2018. (Id.) Express is 15 a named insured on the American Policy, but Motor Parts is not. (Id.) The American Policy 16 provides “excess follow-form type liability to an insured for liabilities covered by the underlying 17 Zurich Policy in excess of the limits of the Zurich Policy, and subject to various policy terms, 18 conditions, and exclusions.” (Id.) 19 C. Procedural History 20 Plaintiffs initiated this action on June 16, 2021. (ECF No. 1.) On November 11, 2022, 21 Plaintiffs filed a First Amended Complaint seeking declaratory relief, regarding Defendants’ duty 22 to defend and indemnify Motor Parts in the Underlying Action, equitable contribution regarding 23 defense costs associated with the Underlying Action, and equitable subrogation against 24 Defendants. (ECF No. 55.) On November 6, 2023, Plaintiffs filed the instant motion for 25 summary judgment. (ECF No. 81.) Defendants filed a cross motion for summary judgement on 26 November 7, 2023. (ECF No. 82.) 27 /// 28 /// 1 II. STANDARD OF LAW 2 Summary judgment is appropriate when the moving party demonstrates no genuine issue 3 of any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. 4 R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary 5 judgment practice, the moving party always bears the initial responsibility of informing the 6 district court of the basis of its motion, and identifying those portions of “the pleadings, 7 depositions, answers to interrogatories, and admissions on file together with affidavits, if any,” 8 which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. 9 Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof 10 at trial on a dispositive issue, a summary judgment motion may properly be made in reliance 11 solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at 12 324 (internal quotation marks omitted). Indeed, summary judgment should be entered against a 13 party who does not make a showing sufficient to establish the existence of an element essential to 14 that party's case, and on which that party will bear the burden of proof at trial. 15 If the moving party meets its initial responsibility, the burden then shifts to the opposing 16 party to establish that a genuine issue as to any material fact does exist. Matsushita Elec. Indus. 17 Co. v. Zenith Radio Corp., 475 U.S. 574 , 585–87 (1986); First Nat’l Bank of Ariz. v. Cities Serv. 18 Co., 391 U.S. 253 , 288–89 (1968). In attempting to establish the existence of this factual dispute, 19 the opposing party may not rely upon the denials of its pleadings but is required to tender 20 evidence of specific facts in the form of affidavits, and/or admissible discovery material, in 21 support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must 22 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the 23 suit under the governing law, Anderson v. Defendant Lobby, Inc., 477 U.S. 242, 248 (1986), and 24 that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict 25 for the nonmoving party. Id. at 251–52. 26 In the endeavor to establish the existence o f a factual dispute, the opposing party need not 27 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 28 dispute be shown to require a jury or judge to reso lve the parties’ differing versions of the truth at 1 trial.” First Nat’l Bank of Ariz., 391 U.S. at 288–89. Thus, the “purpose of summary judgment is 2 to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 3 trial.’” Matsushita Elec. Indus. Co., 475 U.S. at 587 (quoting Rule 56(e) advisory committee's 4 note on 1963 amendments). 5 In resolving the motion, the Court examines the pleadings, depositions, answers to 6 interrogatories, and admissions on file, together with any applicable affidavits. Fed. R. Civ. P. 7 56(c); SEC v. Seaboard Corp., 677 F.2d 1301 , 1305–06 (9th Cir. 1982). The opposing party’s 8 evidence is to be believed and all reasonable inferences that may be drawn from the facts pleaded 9 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255 . 10 Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to 11 produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight 12 Lines, 602 F. Supp. 1224 , 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir. 1987). Finally, 13 to demonstrate a genuine issue that necessitates a jury trial, the opposing party “must do more 14 than simply show that there is some metaphysical doubt as to the material facts.” Matsushita 15 Elec. Indus. Co., 475 U.S. at 586 . “Where the record taken as a whole could not lead a rational 16 trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587 . 17 III. ANALYSIS 18 In moving for summary judgment, Plaintiffs seek a declaration from the Court that 19 “Zurich had a duty to defend Motor Parts for the [Underlying Action] and failed to do so.” (ECF 20 No. 81-1 at 6.) In its cross motion for summary judgment, Defendants argue they did not have a 21 duty to defend Motor Parts in the Underlying Action because Motor Parts is not their insured, and 22 Plaintiffs are thus not entitled to equitable contribution or subrogation. (ECF No. 82 at 16.) 23 Under California law, “[a]n insurer that has paid defense and settlement expenses may 24 pursue reimbursement from other insurers on various equitable grounds, including subrogation 25 and contribution.” Hartford Cas. Ins. Co., 123 Cal. App. 4th 278 , 286–87 (2004). Thus, in an 26 action by an insurer to obtain contribution from a c o-insurer, the burden is on the insurer who 27 paid the loss to show that a potential coverage obli gation arose or existed under the co-insurer’s 28 policy. See Safeco Ins. Co. of Am. v. Super. Ct., 14 0 Cal. App. 4th 874 , 879 (2006). A plaintiff 1 meets its burden of proof when it makes a prima facie showing of a potential for coverage under 2 the co-insurer’s liability insurance policy. Id. at 881 . The burden then shifts to the defendant to 3 prove the absence of coverage. Id. Similarly, “[e]quitable subrogation puts the insurer into the 4 position of the insured ‘to pursue recovery from third parties legally responsible to the insured for 5 a loss which the insurer has both insured and paid.” Westport Ins. Corp. v. California Cas. Mgt. 6 Co., 916 F.3d 769, 781 (9th Cir. 2019) (quoting Fireman's Fund Insurance Co. v. Maryland 7 Casualty Co., 65 Cal. App. 4th 1279, 1282 (1998)). 8 A. The Insurance Coverage Dispute 9 In the instant case, both Plaintiffs and Defendants agree that for Plaintiffs to make a prima 10 facie showing of a potential for coverage for Motor Parts under the Zurich Policy, Plaintiffs must 11 first show that Gonzalez qualifies as an additional insured under the Zurich Policy. (ECF No. 87 12 at 7, No. 82 at 18.) Plaintiffs argue they have made a prima facie showing that Gonzales qualifies 13 as an additional insured under the Zurich Policy’s Coverage Extension Endorsement (“CEE”). 14 (ECF No. 81-1 at 12.) The pertinent language of the CEE is described below: 15 1. The following is added to the Who Is An Insured 16 Provision in Section II — Covered Autos Liability 17 Coverage: 18 The following are also “insureds”: 19 a. Any “employee of [Express] is an “insured” while 20 using a covered “auto” you don’t own, hire, or 21 borrow for acts performed within the scope of 22 employment by “Express” … 23 b. … 24 c. … 25 d. … . 26 (ECF No. 82-2 at 223.) It is undisputed that the fir st category of insureds added through the CEE 27 are Express employees who use a covered “auto” t o perform acts within the scope of their 28 employment for Express (the “Employee Category ”). (ECF Nos. 82 at 18, 87 at 7.) Plaintiffs 1 argue Gonzalez qualifies as an insured under the CEE’s Employe Category because, at the time of 2 the accident, he was an Express employee using a covered “auto” to perform acts within the scope 3 of his employment with Express. (ECF No. 81-1 at 13.) 4 Plaintiffs then argue Motor Parts qualifies as an additional inured under the Zurich Policy 5 because the CEE adds four additional categories of insureds to the Zurich Policy’s Who Is An 6 Insured provision. (Id.) The pertinent language from the Who Is An Insured provision is 7 described below: 8 1. Who Is an Insured 9 The following are insureds: 10 a. You [Express] for any covered “auto.” 11 b. Anyone else while using with your permission a 12 covered “auto” you own, hire or borrow except … 13 c. Anyone liable for the conduct of an “insured” 14 described above but only to the extent of that 15 liability. 16 (ECF No. 82-2 at 182–83 (emphasis added).) Plaintiffs argue that “[b]y amending the Who Is An 17 Insured Provision to add more insureds, the insureds ‘described above’ [in subparagraph (c.)] 18 were enlarged to include the insureds added by the Coverage Extension Endorsement.” (Id.) Put 19 differently, Plaintiffs argue that because Motor Parts was liable for the conduct of Gonzales, 20 subparagraph c. of the Who Is An Insured provision confers insured status on Motor Parts. (Id.) 21 Defendants disagree with Plaintiffs’ interpretations of the Zurich Policy and argue, 22 “[e]ven assuming arguendo that Gonzalez qualifies as an insured under the CEE, Motor Parts still 23 does not qualify as an insured.” (ECF No. 82 at 20.) Specifically, Defendants argue 24 “subparagraph c. of the Who Is An Insured provision in the main form applies solely to the 25 specific ‘insureds described above.’” (ECF No. 82 at 21.) “Gonzales, even if considered an 26 insured under the CEE is not an ‘insured described above’ subparagraph c. of the Who Is An 27 Insured provision in the main form.” (Id.) The on ly insureds ‘described above’ subparagraph c. 28 are those described in subparagraphs a. and b.” (Id .) 1 Thus, Plaintiffs’ and Defendants’ cross motions for summary judgement turn on the 2 Court’s interpretation of the CEE and subparagraph c. of the “Who Is An Insured” provision and 3 whether Motor Parts qualifies as an insured under that interpretation. 4 B. Insurance Contract Interpretation 5 California law controls this insurance dispute, and California appellate court decisions 6 bind federal courts in California where they apply. See Ryman v. Sears, Roebuck & Co., 505 F.3d 7 993, 994 (9th Cir. 2007). 8 Under California law, where the underlying facts are undisputed, interpretation of an 9 insurance policy is a question of law. Merced Mut. Ins. Co. v. Mendez, 213 Cal. App. 3d 41 , 45 10 (1989); see also Legacy Vulcan Corp. v. Super. Ct., 185 C.al. App. 4th 667, 688 (2010) 11 (“Contract interpretation, including the resolution of any ambiguity, is solely a judicial function, 12 unless interpretation turns on credibility of extrinsic evidence.”). California Courts interpret 13 insurance policies using the same rules of interpretation applicable to other contracts. Legacy 14 Vulcan Corp., 185 C.al. App. 4th at 688. 15 “The fundamental rules of contract interpretation are based on the premise that the 16 interpretation of a contract must give effect to the ‘mutual intention’ of the parties” which should 17 be inferred solely from the written provisions of the contract if possible. MacKinnon v. Truck Ins. 18 Exch., 31 Cal. 4th 635, 647 (2003). “If contractual language is clear and explicit, it governs.” 19 ACL Techs., Inc. v. Northbrook Prop. & Cas. Ins. Co., 17 Cal. App. 4th 1773, 1784 (1993) 20 (quoting Bank of the West v. Superior Court, 2 Cal. 4th 1254, 1264 , (1992)); see also Cal. Civ. 21 Code § 1638. “The ‘clear and explicit’ meaning of these provisions, interpreted in their ‘ordinary 22 and popular sense,’ unless ‘used by the parties in a technical sense or a special meaning is given 23 to them by usage,’ controls judicial interpretation.” TRB Invs., Inc. v. Fireman's Fund Ins. Co., [24] 40 Cal. 4th 19, 27 (2006). 25 “On the other hand, when policy language is ambiguous, rules applicable to resolving 26 ambiguity control.” St. Paul Mercury Ins. Co. v. F rontier Pacific Ins. Co., 111 Cal.App.4th 1234 , 27 1243 (2003) (citing Bank of the West v. Superior C ourt, 2 Cal. 4th 1254 , 1264–65 (1992)). 28 “A contract term will be considered ambiguous wh en it is capable of two or more constructions, eee I I I INE IRIE EI I IDOE EE 1 | both of which are reasonable. But ‘courts will not strain to create an ambiguity where none 2 | exists.’” Westport Ins. Corp., 76 F. Supp. 3d at 879 (quoting Waller v. Truck Ins. Exch., Inc., 11 3 | Cal. 4th 1, 18-19 (1995)). 4 C. Whether Motor Parts Qualifies as an Insured Under the Zurich Policy 5 To summarize again, Plaintiffs argue Motor Parts qualifies as an insured under the Zurich 6 | Policy because the insureds added through the CEE should be added to the Who Is An Insured 7 | Provision above subparagraph c., so that subparagraph c. applies to all insureds added to the 8 | Zurich Policy through the CEE. (ECF No. 81-1 at 14.) By contrast, Defendants argue Motor 9 | Parts does not qualify as an insured under the Zurich Policy because the added insureds from the 10 | CEE should be added to the Who Is An Insured provision after subparagraph c., so that 11 | subparagraph c. only applies to those insureds described in subparagraphs a. and b. (ECF No. 84 12 | at 14-15.) Below are helpful illustrations provided by Defendants which visually depict the 13 | parties’ interpretations of how the CEE and the Who Is an Insured provision work together: 14 Plaintiffs’ Interpretation: PLAINTIFFS SEEK TO HAVE THE COURT ADOPT Business Auto Coverage Form Business Auto Coverage Form 16 SECTION LIABILITY COVERAGE SECTION II — LIABILITY COVERAGE A. Coverage A. Coverage 17 Ll. Who Is An Insured L. Whe Is An Insured The following are “insureds”: The following are “insureds”: 18 a. You [ite. Express] for any covered a. You (ie. Express) for any covered “auto”. “Sanur 19 b. Anyone else while using with your b. Anyone else while using with your permission a covered “auto” you own, permission a covered “auto” you own, hire or borrow except... hire or borrow except. 20 : . □□□ anyone liable for the conduct of i anyone liable for the conduct of an "insured" deseribed abave but only “Tisured” decribed above but onky to 21 the extent of that liability. (ita the extent of that liability. (italics added). added). 22 (Coverage Extension Endorsement A. Amended Who Is An Insured The following is added to the V a 23 Insured Provision in Section IF The failowrrg are also insureds: 24 a Any “employee” of yours [1-2 Express] is an “insured” while using 25 acovered “auto” you dont own, hire or borrow far ack perfonned within the seape of emploverent fy ve [te Express ]....7talics added) 26 buss □□ [28] em I I IE IIE III IIE IEE IE IED EE 1 Defendants’ Interpretation: POLICY TERMS ADDING THE COVERAGE EXTENSION TO THE 2 WHO 1S AN INSURED PROVISION Business Auto Coverage Form Business Auto Coverage Form 3 SECTION II —- LIABILITY COVERAGE SECTION It —- LIABILITY COVERAGE A. Coverage A. Coverage 4 1. Who Is An Insured 1. Who Is An Insured The following are "insureds": The following are "insureds": 5 a. You f[i.e. Express] for any cowered a. You [i.e. Express] for any covered “auto”. “auto”. 6 b. Anyone else while using with your b. Anyone else while using with your permission a covered “auto” you own, permission a covered “auto” you own, hire or borrow except... hire or borrow except.... 7 ce. anyone liable for the conduct of an ce. anyone liable for the conduct of an "insured" described above but only to "insured" described above but only to 8 the extent of that liability. (italics the extent of that liability. (italics added). added). 9 Coverage Extension Endorsement The following are also insureds: A. Amended Who Is An Insured a. Any “employee” of yours [i.e. The following is added to the Who Is An Express] is an “insured” while using 10 Insured Provision in Section IT...: covered “auto” you don’t own, hire or borrow for acts performed within The following are also insureds: the scape of employment by vou [i.e. 1 1 Express]....(italics added) a. Any “employee” of yours [ie. b. Express] is an “insured” while using Gis 12 acovered “auto” you don’t own, hire d. .... or borrow for acts performed within the scape af employment by you [i.e. 13 Express]....(italics added) b. d. [15] 16 | (ECF No. 84 at 14-15.) 17 Plaintiffs argue the Court should adopt their interpretation of the CEE and Who Is An 18 | Insured provision because it is the “straightforward and logical reading of these provisions 19 | together.” (ECF No. 87 at 15.) Defendants argue the Court cannot adopt Plaintiffs’ 20 | interpretations of these two provisions because “Plaintiffs are not only attempting to rewrite the 21 | Zurich Policy, but rewrite it in a way that does not make sense.” (ECF No. 84 at 15.) The Court 22 || agrees with Defendants. 23 “Ordinarily, an insurer is free to limit the risks it will assume and will be liable only for a 24 | loss within the terms of the policy, and a court will not rewrite the terms of a policy ....” 25 || Underwriters of Interest Subscribing to Policy No. A15274001 v. ProBuilders Specialty Ins. Co., 26 | 193 Cal. Rptr. 3d 898, 905 (2015) (internal citations omitted), as modified on denial of reh’g 27 | (Nov. 13, 2015). Moreover, an insurance policy should be interpretated according to its plain, 28 | ordinary, and accepted sense. Jd. Thus, the Court must respect the plain language of any [10] 1 limitation of coverage within a policy. Id. (“It is the ordinary rule that an insurance company has 2 the right to limit the coverage of a policy issued by it and when it does so, the plain language of 3 the limitation must be respected.”) 4 In the instant case, the text of subparagraph c. limits coverage to “anyone liable for the 5 conduct of an ‘insured’ described above.” (ECF No. 82-2 at 182–83 (emphasis added).) Having 6 reviewed this text in the context of the entire Zurich Policy, the Court finds a plain reading of 7 subparagraph c. of the Who Is An Insured provision is only susceptible to one reasonable 8 interpretation which is that subparagraph c. of the Who Is An Insured provision applies only to 9 those insureds described above in subparagraphs a. and b. (See id.) 10 Additionally, it is unclear to the Court how the CEE could be interpreted to expand the list 11 of insureds “described above” subparagraph c. Specifically, the CEE states that it is adding four 12 additional categories of insureds to the Who Is An Insured provision but states nothing about 13 where the additional categories of insureds should go within the list of insureds of the Who Is An 14 Insured provision. (ECF No. 82-2 at 223.) While the drafters of the CEE could have been more 15 precise in describing where the additional insureds were to be included in the Who Is An Insured 16 provision, contrary to Plaintiffs’ arguments (ECF No. 87 at 16–17), the fact that policy language 17 could be more explicit does not render it ambiguous under California law. City of Carlsbad v. 18 Ins. Co. of State of Pennsylvania, 180 Cal. App. 4th 176, 186 (2009) (“[J]ust because language 19 could be more precise or explicit does not mean it is ambiguous.”); Thus, in view of the plain 20 language of the CEE, the Court finds the CEE is not ambiguous and a layperson would logically 21 interpret CEE to add the new insured to the end of the list of insureds in the Who Is An Insured 22 provision, not to shoehorn them between subparagraphs b. and c. See AIU Ins. Co. v. Super. Ct., [23] 51 Cal. 3d 807, 822 (1990) (“If the meaning a layperson would ascribe to contract language is not 24 ambiguous,” then the court applies that meaning.). 25 Plaintiffs also argue the CEE’s failure to exempt or except the added insureds from 26 subparagraph c. of the Who Is An Insured Provisio n means subparagraph c. “was expanded to 27 apply to added insureds, making the parties potent ially liable for the conduct of the added 28 insureds.” (ECF No. 87 at 15 (“That is the straigh tforward and logical reading of these provisions 1 together.”).) However, the Court finds Plaintiffs’ argument is unsupported and contrary to the 2 plain text of the Zurich Policy. 3 Within the insurance industry, subparagraph c. of the Who Is An Insured provision is 4 known as an omnibus clause. “Liability insurance policies for commercial motor vehicles 5 typically include an omnibus clause.” Am. States Ins. Co. v. Progressive Cas. Ins. Co., 180 Cal. 6 App. 4th 18, 22 (2009) (internal quotation marks omitted). In the instant case, like most other 7 omnibus clauses, subparagraph c. defines an “insured” as one who is vicariously liable for 8 conduct of another named insured. Id.; (ECF No. 82-2 at 182–83.) However, there is nothing in 9 the language of the Zurich Policy which suggests Zurich intended for the omnibus clause in 10 subparagraph c. to be a general, collective, or catchall provision of the policy that applies to all 11 insureds. (See ECF No. 82-2 at 182–83.) Indeed, the language used by Zurich in subparagraph c. 12 suggests the insureds described in subparagraph c. are a distinct and independent group of 13 insureds defined by the Who Is An Insured provision. (See id.) Specifically, this is a district 14 group of insureds who is liable for the conduct of insureds as defined in the above subparagraphs 15 a. and b. (See id.) Even if Gonzales qualifies as an insured by virtue of the Employee Clause 16 within the CEE,1 it is undisputed Gonzales does not qualify as an insured under either 17 subparagraphs a. or b.2 (ECF Nos. 82 at 21, No. 87 at 7–14.) 18 Finally, Plaintiffs argue a separate endorsement, titled the Newly Acquired or Formed 19 Organization Amendment (“Newly Acquired Endorsement”), contradicts Defendants’ 20 interpretation and “clearly demonstrates that there was never any intent to list the added insureds 21 in the Coverage Extension Endorsement … below the omnibus clause as Zurich insists.” (ECF [22] 23 1 Given the Court finds Motor Parts does not qualify as insured under the Zurich Policy regardless of whether Gonzales qualifies as an insured under the CEE, the Court need not and 24 does not address whether Gonzales qualifies as an insured under the CEE. 25 2 Specifically, Plaintiffs and Defendants agree that subparagraph a. confers insured status o n Express “for any covered ‘auto’” and subparagr aph b. confers insured status on “anyone else 26 while using with [Express’s] permission a covered ‘auto’ [Express] own[s], hire[s], or borrow[s]” 27 subject to certain conditions. (ECF Nos. 82 at 21, No. 87 at 7–14.) It is undisputed Gonzalez is not Express, the company, and it is undisputed Go nzales was using his own car, not a car owned 28 by Express, at the time of the accident. (Id.) 1 No. 87 at 17.) The Newly Acquired Endorsement expressly adds an additional insured to the 2 Who Is An Insured Provision as subparagraph d., below subparagraph c. (ECF No. 82-2 at 230.) 3 The pertinent portions of the Newly Enquired Endorsement are described below: 4 Changes to Section II – Liability Coverage 5 The following is added to Paragraph A.1. Who Is An Insured: 6 d. Any organization you newly acquire or form, . . . 7 . . . 8 No person or organization is an insured with respect to the 9 conduct of any current or past partnership, joint venture or 10 Limited liability company that is not shown as a Named Insured in 11 the Declarations. 12 (Id.) 13 Plaintiffs argue “[i]f Zurich intended that insured categories A.1.a., b., c., and d., added by 14 the Coverage Extension Endorsement be listed below or under the omnibus clause then it could 15 have easily done so by using language similar to that used in the New Organization Endorsement 16 … [,] supporting the inescapable conclusion that the insureds added to the Who Is an Insured 17 provision by the Coverage Extension Endorsement were never intended to be listed below the 18 omnibus clause ….” (ECF No. 87 at 18–19.) Defendants disagree with Plaintiffs and argue 19 Plaintiffs’ reliance on the Newly Acquired Endorsement is “misguided,” and if anything, the 20 “Newly Acquired Endorsement supports the notion that insureds added by the CEE should not be 21 crammed between subparagraphs ….” (ECF No. 89 at 10.) Once again, the Court agrees with 22 Defendants. 23 Having reviewed the Newly Acquired Endorsement and the CEE, the Court finds there is 24 a clear distinction between the two endorsements. Specifically, the Newly Acquired Insured 25 Endorsement changes the text of paragraph A.1. of the Who Is An Insured provision by adding a 26 new subparagraph and a new category of insured t o the Zurich Policy. (See ECF No. 82-2 at 27 230.) On the other hand, the CEE states that it is a dding four additional categories of insureds to 28 the Who Is An Insured provision, with no languag e indicating where in the provision these 1 additional insureds should be included. (Id. at 223.) As raised by Plaintiffs, if the intent of the 2 policy drafters was for the new CEE insureds to be inserted above subparagraph c., then the 3 policy drafters could have added the appropriate subparagraph designations for the CEE insureds 4 just as they did in the Newly Acquired Endorsement. Indeed, the Court finds the policy drafters’ 5 failure to include subparagraph designations for the CEE insureds further suggests to the Court 6 that the policy drafters intended for the CEE insureds to be added to the Who Is An Insured 7 provision as a distinct group of insureds separate from those listed in paragraph A, not 8 shoehorned between subparagraphs b. and c. 9 Thus, the Court finds that the plain text of the Zurich Policy reveals that, even if Gonzales 10 qualifies as an additional insured under the CEE, Motor Parts still does not qualify as an 11 additional insured under the Zurich Policy’s omnibus clause in subparagraph c. of the Who Is An 12 Insured provision. This is because a plain reading of the CEE makes clear that the CEE only 13 confers insured status on those who meet the terms and conditions of the CEE and adds those 14 insureds to the Who Is An Insured provision. (See ECF No. 82-2 at 223.) However, there is 15 nothing in the text of the Zurich Policy which indicates that the CEE expands the list of insureds 16 “described above” subparagraph c. in the Who Is An Insured provision. (See id.) Furthermore, 17 under the plain meaning rule, the only reasonable interpretation of subparagraph c. of the Who Is 18 An Insured provision is that it confers insured status on those who are “liable for the conduct of 19 an ‘insured’ described above” in subparagraphs a. and b. (See id. at 182–83.) While Motor Parts 20 may be liable for Gonzales’ conduct, Gonzales does not qualify as an insured under 21 subparagraphs a. or b. of the Who Is An Insured provision. 22 Accordingly, the Court finds Plaintiffs have not made a prima facie showing that Motor 23 Parts qualifies as an additional insured under the Zurich Policy or that a potential coverage 24 obligation arose or existed under the Zurich Policy for Defendants. Additionally, because Motor 25 Parts does not qualify as an additional insured under the Zurich Policy, the Court finds 26 Defendants did not have a duty to defend Motor Pa rts in the Underlying Action and Plaintiffs 27 have no right to reimbursement. 28 /// 1 IV. CONCLUSION 2 For the foregoing reasons, the Court hereby DENIES Plaintiffs’ Motion for Summary 3 | Judgement (ECF No. 81) and GRANTS Defendants’ Motion for Summary Judgement (ECF No. 4 | 82.) The Clerk of Court is directed to enter judgement in Defendants’ favor and close this case. 5 IT IS SO ORDERED. 6 Date: September 05, 2024 ry /) ’ “ bu 9 United States District Judge