U.s. Specialty Insurance Co. v. Xl Specialty Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
U.S. SPECIALTY INSURANCE CO.,
Plaintiff - counter-defendant -
Appellant,
v.
XL SPECIALTY INSURANCE
COMPANY,
Defendant - counter-claimant
- Appellee.
No. 12-56164
D.C. No. 5:11-cv-00617-RGK-OP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted February 13, 2014
Pasadena, California
Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges.
The district court correctly granted summary judgment to XL Specialty
Insurance Co. because exclusion 2(g) of the XL insurance policy applies to the
aircraft accident here. Exclusion 2(g) excludes from coverage bodily injury or
FILED
FEB 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.

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property damage “arising out of the . . . use . . . of any aircraft . . . operated by . . .
any insured.” Thus, the exclusion applies here if, at the time of the accident, the
aircraft was operated by the insured, Championship Aviation, Inc. (CAI).
U.S. Specialty Insurance Co. obtained a default judgment against CAI based
in part on U.S. Specialty’s allegation that the aircraft was operated by CAI at the
time of the accident. In its underlying action against CAI, U.S. Specialty alleged
that “[a]t all times herein relevant, the Aircraft was . . . operated by defendant[]
CAI.” It then reincorporated that allegation throughout its complaint. Having
obtained the default judgment it seeks to enforce in this action based in part on the
allegation that CAI did operate the aircraft, U.S. Specialty cannot now claim that
CAI did not operate the aircraft in order to avoid the application of exclusion 2(g).
See Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782–83 (9th Cir.
2001). That remains true even though U.S. Specialty took its original position in a
different action. Id.
AFFIRMED.

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