United States v. 2011-02-09 | 09-55831 | Bradley Ausmus 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 Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRADLEY D. AUSMUS and
ELIZABETH A. AUSMUS,
Plaintiffs-Appelants,
v.
LEXINGTON INSURANCE COMPANY;
AMERICAN INTERNATIONAL GROUP,
INC. DOES 1-100, INCLUSIVE
Defendants-Appellees.
Nos. 09-55831
09-56137
D.C. No. 3:08-cv-2342-L-LSP
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted November 3, 2010
Pasadena, California
Before: GOODWIN and RAWLINSON, Circuit Judges, and ZOUHARY, District
Judge.**
FILED
FEB 09 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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This is an insurance coverage dispute filed by Bradley and Elizabeth Ausmus
(the “Ausmuses”) against Lexington Insurance Company and American International
Group, Inc. (collectively “Lexington”). (AIG was the parent company of Lexington.)
The Ausmues are seeking insurance coverage for defective work performed by a
contractor, a Lexington insured. The district court dismissed the Complaint pursuant
to Federal Civil Rule 12(b)(6), finding the claims were barred by one of the policy
exclusions. A later Motion to Vacate Judgment was denied.
The district court concluded the policy exclusion was (a) plain, clear and
conspicuous, and (b) the insurer was not required to provide its insured with advance
notice of the reduction in coverage. The district court also concluded that the
Ausmuses failed to raise their California common law argument in opposition to the
Motion to Dismiss, thereby waiving that argument in their later Motion to Vacate
Judgment.
This court reviews de novo a district court’s grant of a Rule 12(b)(6) motion to
dismiss, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005), and the denial of a
motion under Rule 59(e) to alter or amend the judgment for an abuse of discretion, Ta
Chong Bank Ltd. v. Hitachi High Techs. Am., Inc., 610 F.3d 1063, 1066 (9th Cir.
2010) (citing McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003)).

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After carefully reviewing the record, the applicable law, and the parties’ briefs,
we are convinced that the district court did not err in its conclusions. As the district
court’s opinions carefully and correctly set out the law governing the issues raised,
and clearly articulate the reasons underlying its decisions, issuance of a full written
opinion by this Court would serve no useful purpose. Accordingly, for the reasons
stated in the district court’s opinions dated April 22, 2009 and July 15, 2009,
respectively, we AFFIRM.

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