Emcasco Insurance Company, an Iowa corporation; v. James Cartwright, an individual and, as the appointed guardian ad litem for Matthew…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMCASCO INSURANCE COMPANY, an
Iowa corporation; et al.,
Plaintiff-Appellees,
v.
JAMES CARTWRIGHT, an individual and,
as the appointed guardian ad litem for
Matthew Barbee; et al.,
Defendant-Appellants,
and
NATIONWIDE INSURANCE COMPANY,
an Ohio corporation,
Defendant.
No. 21-36021
D.C. No. 3:20-cv-00953-AC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Submitted December 7, 2022**
Seattle, Washington
* 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).
FILED
DEC 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: O’SCANNLAIN, McKEOWN, and MILLER, Circuit Judges.
Defendant-Appellants jointly appeal the district court’s grant of summary
judgment in favor of Plaintiff-Appellee insurers in this coverage dispute. Because
the facts are known to the parties, we repeat them only as necessary to explain our
decision.
I
The parties agree that under Oregon law the controlling precedent on
construing ambiguous insurance policies is Hoffman Construction Co. of Alaska v.
Fred S. James & Co. of Oregon, 313 Or. 464 (1992). Hoffman sets out a multi-step
framework for deciphering a disputed insurance provision’s meaning.
First, the Oregon courts consider the plain meaning of the provision to
determine whether it is susceptible to more than one “plausible” interpretation. Id.
at 470. If more than one “plausible” interpretation of the provision exists, the court
proceeds to the second step. This step instructs the court to examine the disputed
provision in both the immediate and broader context of the policy, in order to see if
it remains open to more than one “reasonable” interpretation. Id. If the policy
remains unclear, it is ambiguous. Id. at 470–471. Oregon courts will construe such
ambiguous policies against the drafter, typically the insurer. Id.

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II
The district court did not err in finding, based on the broad context of the
policy, that “in” does not mean “in connection with,” as the Defendant-Appellants
claim. The parties agree that Hoffman instructs the Court to review the disputed
terms in the broad context of the policy. However, the Defendant-Appellants fail to
offer any analysis of why their claimed interpretation of the disputed term is
“reasonable” when viewed in this broad context of the policy. Furthermore,
Defendant-Appellants fail to respond to Plaintiff-Appellees’ argument that it is
unreasonable to interpret “in” as “in connection with” based on the broad context of
the policy. Defendant-Appellants do argue that the Plaintiff-Appellees’
interpretation of “in” is unreasonable, but their argument is foreclosed by Hoffman’s
assumption that parties to an insurance contract do not create meaningless
provisions. See Hoffman, 313 Or. at 472.
In sum, Defendant-Appellants fail to offer any analysis of whether their
interpretation is “reasonable” in the broad context of the policy. Instead, Defendant-
Appellants’ argument focuses on showing that their interpretation is “plausible.”
This argument does not satisfy Hoffman’s requirements for establishing that a policy
is ambiguous in the sense that justifies construing the policy against the insurer. See
Hoffman, 313 Or. at 470.

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III
The judgment of the district court is AFFIRMED.

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