Rli Insurance Company v. City of Visalia

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE 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
D.C. No.
1:17-cv-01205-LJO-EPG
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted May 14, 2019**
San Francisco, California
FILED
MAY 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: WALLACE and IKUTA, Circuit Judges, and MOLLOY,*** District Judge.
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.
*** The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
1 The district court did not err in rejecting Visalia’s request for judicial
notice as irrelevant.
2

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