Umpqua Bank, an Oregon chartered bank v. First American Title Insurance Company, a California corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UMPQUA BANK, an Oregon chartered
bank,
Plaintiff - Appellant,
v.
FIRST AMERICAN TITLE INSURANCE
COMPANY, a California corporation,
Defendant - Appellee.
No. 11-17660
D.C. No. 2:09-cv-03208-WBS-
EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted October 11, 2013
San Francisco, California
Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.
“We review the district court’s grant of summary judgment de novo.”
Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). “We
will only affirm if, viewing that evidence in the light most favorable to the
FILED
OCT 18 2013
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 4 --

nonmoving party, there are no genuine issues of material fact and the district court
correctly applied the relevant substantive law.” Id. We affirm the district court’s
grant of summary judgment in favor of First American Title Insurance Company.
1. Umpqua Bank’s claim that First American breached its agreement to
provide title insurance to Umpqua must fail. The undisputed evidence shows that
First American is not liable for Umpqua’s loss or damage, because Umpqua
voluntarily settled a claim without prior written consent from First American. The
no voluntary payments (NVP) provision of the insurance contract (paragraph 8(c)),
specifically provides that First American “shall not be liable for loss or damage to
[Umpqua] for liability voluntarily assumed by [Umpqua] in settling any claim or
suit without [First American’s] prior written consent.” California law outlines that
an NVP provision means that “insureds cannot unilaterally settle a claim before the
establishment of the claim against them and the insurer’s refusal to defend in a
lawsuit to establish liability.” Low v. Golden Eagle Ins. Co., 2 Cal. Rptr. 3d 761,
770 (Cal. Ct. App. 2003) (citing Jamestown Builders, Inc. v. Gen. Star Indemnity
Co., 91 Cal. Rptr. 2d 514, 517 (Cal. Ct. App. 1999)). For fourteen months before
tendering the defense to First American, Umpqua litigated the claim (brought
against it by Teichert) that it now alleges should be covered by the insurance
2

-- 2 of 4 --

agreement. Only fourteen days after tendering the defense, Umpqua settled the
claim without First American’s consent.
2. No valid exception to enforcing the NVP provision applies. The fact that
Umpqua litigated with Teichert for fourteen months before notifying First
American of the claim demonstrates that the ensuing settlement was not rendered
involuntary by circumstances outside of Umpqua’s control. Jamestown Builders,
91 Cal. Rptr. 2d at 516. Umpqua also does not dispute that it knew the subject
coverage applied to the Teichert dispute at its outset. Faust v. The Travelers, 55
F.3d 471, 473 (9th Cir. 1995). And First American did not abandon Umpqua,
because Umpqua did not give First American time to decide whether First
American was going to assume or reject the defense before Umpqua settled with
Teichert. Gribaldo, Jacobs, Jones & Assocs. v. Agrippina Versicherunges A.G.,
476 P.2d 406, 415 (Cal. 1970).
3. Finally, this court need not consider Umpqua’s fact-intensive estoppel and
waiver arguments, because they were not made before the district court. Great Sw.
Life Ins. Co. v. Frazier, 860 F.2d 896, 903 (9th Cir. 1988). Similarly, Umpqua’s
argument contesting First American’s other grounds for denying insurance
coverage are outside the bounds of this appeal, as the district court granted
summary judgment only with respect to the applicability of the NVP provision.
3

-- 3 of 4 --

Int’l Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.
1985).
AFFIRMED.
4

-- 4 of 4 --