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Keating v. National Union Fire Insurance Co.

filed: June 3, 1993.

CHARLES H. KEATING, JR.; ANDREW LIGGET; CHARLES A. KEATING, III; ROBERT WURZELBACHER; ROBERT J. HUBBARD; ROBERT J. KIELTY; JAMES GROGAN; JUDY J. WISCHER, PLAINTIFFS-APPELLEES,
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-89-5343-SVW. Stephen V. Wilson, District Judge, Presiding.

Before: Harry Pregerson, William C. Canby, Jr., and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Canby.

Author: Canby

CANBY, Circuit Judge:

The district court granted partial summary judgment to Charles Keating, Andrew Ligget and their fellow plaintiffs (collectively "Keating") on their declaratory judgment claim that two comprehensive general liability insurance policies obligated National Union to defend Keating in several investor lawsuits. We reverse.

Unfair Competition

The comprehensive general liability policies in issue provided coverage to Keating for, among other things, all sums that Keating became legally obligated to pay as "damages" because of "advertising injury." "Advertising injury" was defined as injury arising out of certain named torts, including "unfair competition." It was Keating's position in bringing this action for declaratory relief that the securities fraud and related claims brought by the various investor plaintiffs in the underlying litigation were claims for "unfair competition" within the meaning of National Union's policies. National Union defended on the ground that "unfair competition" was to be narrowly defined as the common-law tort of unfair competition, which gives a cause of action only for competitive injury. Keating, on the other hand, argued that the term was intended to include the broader list of unlawful trade practices defined as unfair competition in California's Unfair Business Practices Act, Cal. Bus. & Prof. Code § 17200 (West 1987 & Supp. 1993) et seq. The district court found both arguments plausible, and concluded that the policy term was ambiguous; it therefore construed the clause against the insurer, National Union. National Union appealed.

We deferred submission of this case pending the California Supreme Court's decision in Bank of the West v. Superior Court, 2 Cal. 4th 1254, 10 Cal. Rptr. 2d 538, 833 P.2d 545 (1992). When that decision was rendered, we ordered supplemental briefing, which has occurred. Despite Keating's arguments, we are convinced that Bank of the West totally undermines the district court's ruling on this issue. Bank of the West held that, when a policy provides coverage (as do National Union's policies here) for "damages" caused by "unfair competition," the latter phrase does not include claims that might be brought under the Unfair Business Practices Act, which provides only for restitution, not damages. Bank of the West, 2 Cal. 4th 1254, 10 Cal. Rptr. 2d 538 at 543-51, 833 P.2d 545. Moreover, the context of the term "unfair competition" in the policy, in light of the reasonable expectations of the insured, makes the term's meaning so clear that the broader definition in the Unfair Business Practices Act does not even create ambiguity. Id. at 550.

Keating points out that the California Supreme Court in Bank of the West did not explicitly confine coverage under the policy term to the tort of common-law unfair competition. This point is of little aid to Keating, however. The Bank of the West opinion rejected expansive dictionary definitions of "unfair competition" that generally encompassed harms to the public in addition to harms to competitors. Id. at 545. The California Court recited that the overwhelming majority of courts have held that the term "unfair competition" as it appears in National Union's policies limits coverage to liability arising from the common-law tort of unfair competition. Id. at 544. Whether the California Court would restrict liability under such policies to the exact confines of the common-law tort of unfair competition is not crucial in this case; the Court's opinion leaves no doubt that investors' claims of the type in issue in this case do not qualify as "damages" from "advertising injury" caused by "unfair competition," as those terms appear in the context of National Union's policies. Some substantial component of competitive injury is required.

It is not possible to characterize the claims of the investors who are suing Keating as ones for common-law unfair competition or any approximation of that tort. They are not claims for redress of competitive injury. Even if, as Keating argues, they include allegations of "palming off" of uninsured bonds as federally insured deposits, the investors' complaints are not based on injury to Keating's competitors. Any liability ensuing from those claims cannot be brought within the policies' coverage.

Keating correctly points out that Bank of the West did not involve a duty to defend. Nevertheless, Bank of the West made clear that there was not even a potential for coverage under National Union's policies in this case. The district court accordingly erred in ruling that National Union had a duty to defend the investors' claims as claims for "advertising injury" caused by "unfair competition."

Bodily Injury

The policies also extended coverage for damages to "bodily injury" arising out of an "occurrence." The district court held that this clause imposed a duty on National Union to defend the Keating insureds against third-party claims. One of the third-party complaints alleged that the plaintiff investors suffered "emotional and physical distress, and impairment of health." We need not address several of the issues that the district court's decision raises, for we conclude that one point is dispositive and requires reversal.

California law requires that an insurer defend its insured against third-party claims which give rise to potential liability under the policy. Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 54 Cal. Rptr. 104, 113, 419 P.2d 168 (1966). Although the duty to defend is broader than the duty to indemnify, it is not absolute. The Keating insureds bear an initial burden of showing that an alleged event gave rise to a claim within the scope of the policy coverage. Allstate v. Interbank Financial Services, 215 Cal. App. 3d 825, 264 Cal. Rptr. 25, 27 (1989).

The Keating insureds have failed to carry that burden. The injuries that the third-party plaintiffs allegedly suffered, including emotional and physical distress, arose from economic loss. Economic loss is not damage or injury to tangible property covered by a comprehensive general liability policy. Giddings v. ...


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