Estate of Martin T. Fornadley v. Safeco Insurance Company of Illinois

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF MARTIN T. FORNADLEY,
Plaintiff-Appellant,
v.
SAFECO INSURANCE COMPANY OF
ILLINOIS,
Defendant-Appellee.
No. 18-55115
D.C. No.
2:17-cv-04202-GW-SK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted May 16, 2019**
Pasadena, California
Before: LIPEZ,*** WARDLAW, and HURWITZ, Circuit Judges.
The Estate of Martin T. Fornadley appeals the district court’s grant of
summary judgment to SafeCo Insurance Company of Illinois in this insurance
* 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).
*** The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
FILED
MAY 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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coverage action. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. The district court correctly interpreted the critical policy exclusion—which
denied coverage for personal injury claims made by those with “proper temporary
custody of the property until appointment and qualification of a legal
representative”—based on its “ordinary and popular” meaning. Ameron Int’l Corp.
v. Ins. Co. of Pa., 242 P.3d 1020, 1024 (Cal. 2010). The relevant phrase
unambiguously includes a person responsible for the property, with the permission
of the Estate, in the period before a legal representative is formally appointed.
2. There is no genuine dispute that Larry Benner was responsible for the
Estate property at the time of his injury. The Estate’s amended complaint alleged
that “[a]t the time of his death Fornadley nominated Larry Benner to act as the
representative of his Estate,” and it is bound by that factual assertion. See Am. Title
Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). Moreover, Benner
stated he was “in charge” of the property after Fornadley’s death, and that he was
asked “to check on the property and lock it up.” Benner’s lack of authority to collect
rent or sell the property did not prevent him from exercising “proper temporary
custody.”
AFFIRMED.1
1 We grant the Estate’s motion to supplement the record on appeal. Dkt. 6.

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