Mark Biegler v. G.M.I. N.A. INC., DBA GMI Insurance;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK BIEGLER,
Plaintiff-Appellant,
v.
G.M.I. N.A. INC., DBA GMI Insurance; et
al.,
Defendants-Appellees.
No. 21-35012
D.C. No. 6:20-cv-00032-CCL
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted January 18, 2022
Honolulu, Hawaii
Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.
Concurrence by Judge O’SCANNLAIN
Mark Biegler, an insurance agent, appeals from the district court’s dismissal
of his claims against an insurance broker, GMI. We review the district court’s order
granting the motion to dismiss for failure to state a claim de novo. See L.A. Lakers,
Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017). We have jurisdiction under
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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28 U.S.C. § 1291, and we affirm.
This lawsuit arises out of an insurance policy that Biegler obtained for his
client, Fleetlogix, from United Specialty Insurance Company and Underwriting
Service Management Company, LLC (collectively, the “Carrier”). Biegler worked
with Amy Phillips, an employee at GMI and the insurance broker who dealt directly
with the Carrier on Biegler’s behalf. After Fleetlogix filed the first claim under the
policy, the Carrier initially declined coverage on the mistaken belief that the policy
was an excess one. In a conversation with Biegler, the Carrier ultimately conceded
that the policy was primary, but claimed that Phillips from GMI misled the Carrier
by saying that “there was other coverage.” Nonetheless, the Carrier agreed to
continue the coverage under the policy as written. But with more claims
accumulating, the Carrier canceled the policy and cited the absence of an underlying
policy as the reason for cancellation. Upset over the cancellation, Fleetlogix
terminated its relationship with Biegler. In his complaint, Biegler asserted that
GMI’s negligence, breach of various duties, and negligent misrepresentation caused
him the loss of a valuable customer.
The district court concluded that all of Biegler’s claims against GMI fail for
the simple reason that GMI did exactly what it said it would do: procure a primary
coverage policy for Fleetlogix. Biegler argues that his claims are more nuanced, and
that the procurement of a primary policy does not undermine his claims because

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GMI allegedly misled the Carrier about the nature of the policy, thus rendering the
Carrier an “unwilling” insurer.
We need not opine on the precise contours of an insurance broker’s duty under
Montana law because the complaint’s theory of an “unwilling” insurer is simply
implausible. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001) (courts are not required to accept as true allegations that are “unwarranted
deductions of fact, or unreasonable inferences”). Here, the written policy issued by
the Carrier plainly provided primary coverage, undercutting any inference that the
Carrier was unaware that it was a primary policy or that the Carrier was an
“unwilling” insurer. See Steckman v. Hart Brewing, 143 F.3d 1293, 1295-96 (9th
Cir. 1998) (“[W]e are not required to accept as true conclusory allegations which are
contradicted by documents referred to in the complaint.”). Further, there is no
dispute that the Carrier received premiums commensurate to a primary, not excess,
insurance policy. And the Carrier was apparently willing to pay some claims under
the policy at first (until they began accumulating), suggesting that the Carrier was
not an unwilling one.
In sum, Biegler did not plead any facts that would explain how or why the
Carrier would issue a policy without knowing what coverage it provided. His theory
of an “unwilling” insurer is thus implausible.
AFFIRMED.

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Biegler v. G.M.I. N.A. Inc., No. 21-35012
O’SCANNLAIN, Circuit Judge, concurring:
I agree with the panel’s conclusion: “Biegler did not plead any facts that
would explain how or why the Carrier would issue a policy without knowing what
coverage it provided.” Nowhere in his Complaint, for example, does Biegler hint
at why or how Phillips would have misunderstood or misrepresented what
Fleetlogix wanted, such that she would or could have misled the Carrier. Nor does
he allege the Carrier was unsophisticated or otherwise unable to understand the
terms of the agreement, which Biegler claims the Carrier “conceded . . . did
provide primary coverage.” Without any “unwarranted deductions of fact[] or
unreasonable inferences,” see Sprewell v. Golden State Warriors, 266 F.3d 979,
988 (9th Cir. 2001), Biegler’s complaint fails to state a claim against GMI.
FILED
FEB 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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