Elwyn Patoc, Eric Patoc, Elvy Patoc, Edward Patoc v. Lexington Insurance Company

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Kevin Thomas Duffy, United States District Judge for **
the Southern District of New York, sitting by designation.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELWYN PATOC, ERIC PATOC, ELVY
PATOC, EDWARD PATOC,
Plaintiffs-Appellants,
v.
LEXINGTON INSURANCE COMPANY,
Defendant-Appellee.
No. 08-17002
D.C. No. 08-CV-01893-RMW
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted November 4, 2009
San Francisco, California
Before: NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, District Judge.**
Appellants Elwyn Patoc, Eric Patoc, Elvy Patoc, and Edward Patoc
(“Appellants” or the “Patocs”) appeal the district court’s judgment granting Lexington
FILED
FEB 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Insurance Company’s (“Lexington”) motion to dismiss without leave to amend
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. This appeal arises
out of a wrongful death claim by Appellants against Lexington’s insured for the loss
of their mother, which resulted in a settlement for $1,000,000.00. In the instant case,
Appellants alleged claims for breach of contract and bad faith against Lexington,
among other insurance carriers, for their refusal to defend and indemnify the insured
in the wrongful death lawsuit. The district court dismissed Plaintiffs’ complaint with
respect to all claims and all defendants. The Patocs appealed the dismissal only as to
Lexington. We affirm.
We review an order granting a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure de novo, accepting
all allegations of material fact in the complaint as true and construing the facts in the
light most favorable to the non-moving party. Madison v. Graham, 316 F.3d 867, 869
(9th Cir. 2002).
When alleging the terms of the Lexington automobile policy in their complaint,
the Patocs stated that Lexington’s
automobile liability coverage had no “per accident” limits.
Moreover, this automobile liability coverage did not
contain any “per person” limits limiting the maximum
liability for all damages for bodily injury sustained by any
one person in any one automobile accident. The

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automobile liability coverage part also had no aggregate
limit of liability for automobile liability.
Based on this language, the Patocs argued to the district court that their wrongful
death claim was covered under Lexington’s policy and that it was a breach of contract
and a breach of contract in bad faith for Lexington to deny coverage.
On appeal, the Patocs argue for the first time that since Lexington’s policy had
no “per accident” limits, and since their “per person” limits did not aggregate all
damages on account of any one bodily injury to a single “per person” limit, then even
though Lexington paid its policy limits on Patoc’s personal injury claim, a second “per
person” limit is available for the Patocs’ non-derivative wrongful death claim. This
argument was not discernible from the allegations raised in Appellants’ complaint and
was not made at all in their opposition to the defendants’ Rule 12(b)(6) motion in the
district court. Consequently, we decline Appellants’ invitation to consider it anew.
See A-1 Ambulance Serv., Inc., v. County of Monterey, 90 F.3d 333, 338–39 (9th Cir.
1996).
To the extent that they are properly raised, Appellants’ other arguments lack
merit, and we reject them without further discussion. We also deny Appellants’
request for judicial notice of two General Orders of the Public Utilities Commission
of the State of California, General Order 100-M and General Order 101-E. See Ctr.

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for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 455 F.3d 910, 919 n.3
(9th Cir. 2006) (expressing reluctance to grant judicial notice of “documents [that]
were not before the district court and their significance, if any, is not factored into the
record on appeal”).
AFFIRMED.

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