INTRANSIT, INC., an Oregon corporation, DBA UTI Transport Solutions v. Travelers Property and Casualty Company of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTRANSIT, INC., an Oregon
corporation, DBA UTI Transport
Solutions,
Plaintiff - Appellee,
v.
TRAVELERS PROPERTY AND
CASUALTY COMPANY OF AMERICA,
Defendant - Appellant.
No. 13-35002
D.C. No. 1:11-cv-03146-CL
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Mark D. Clarke, Magistrate Judge, Presiding
Argued and Submitted July 8, 2014
Portland, Oregon
Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.
The district court erred in granting Intransit, Inc.’s motion for summary
judgment and denying Travelers Property and Casualty Co.’s cross-motion for
summary judgment. Under Oregon law, ambiguous terms in insurance contracts
FILED
JUL 25 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 3 --

Page 2 of 3
are interpreted to the benefit of the insured. Hoffman Constr. Co. v. Fred S. James
& Co., 836 P.2d 703, 706–07 (Or. 1992) (en banc). The district court properly
concluded that the term “carrier” is ambiguous and must therefore include both
fraudulent and legitimate motor transportation companies. But the district court
erred by not giving the term “carrier” the same meaning when construing the
policy’s exclusion for carrier dishonesty. Nothing in the insurance agreement
“clearly indicat[es]” an intent to define the term “carrier” differently in the
coverage and exclusions provisions. Schweigert v. Beneficial Standard Life Ins.
Co., 282 P.2d 621, 626 (Or. 1955). Absent such a clear indication, Oregon courts
presume that a term has a consistent meaning throughout an insurance contract.
See id. at 625–26. The criminal acts of the fraudulent “carrier” that resulted in the
loss are therefore subject to the exclusion. However, Intransit is entitled to recover
the $50,000 provided by the “‘Carrier’ Dishonesty” endorsement.
In light of our holding, the district court’s award of attorney’s fees must be
reversed. Intransit’s recovery does not exceed the $50,000 tender that Travelers
made prior to the suit. Intransit is therefore not entitled to attorney’s fees. See Or.
Rev. Stat. § 742.061(1).
The judgment is reversed and the case is remanded with instructions to enter
judgment in favor of Intransit in the amount of $50,000.

-- 2 of 3 --

Page 3 of 3
REVERSED AND REMANDED.

-- 3 of 3 --