Ruth Ann Wunderman Cooper, as assignees v. CERTAIN UNDERWRITERS AT LLOYD'S, LONDON, Subscribing to Syndicate Nos. 623

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUTH ANN WUNDERMAN COOPER, as
assignees, and on behalf of the members of
the class of investor/member investors of
QHL Holdings Fund Ten LLC, a California
Limited Liability Company, and Golden
State TD Investments, LLC a California
Limited Liability Company and MARC
SOBEL, as assignees, and on behalf of the
members of the class of investor/member
investors of QHL Holdings Fund Ten LLC,
a California Limited Liability Company, and
Golden State TD Investments, LLC a
California Limited Liability Company,
Plaintiffs-Appellants,
v.
CERTAIN UNDERWRITERS AT
LLOYD'S, LONDON, Subscribing to
Syndicate Nos. 623 and 2623 Under
Contract No. W15HUJ07PNDM,
Defendant-Appellee.
No. 15-56671
D.C. No.
2:14-cv-07475-FMO-MAN
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Argued and Submitted February 15, 2018
Pasadena, California
* This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
FILED
MAR 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: McKEOWN and WARDLAW, Circuit Judges, and DONATO,** District
Judge.
Ruth Ann Wunderman Cooper and Marc Sobel appeal from the district
court’s dismissal of their first amended complaint with prejudice. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
Plaintiffs are assignees to rights in an excess insurance policy issued by
defendants, Certain Underwriters at Lloyd’s, London (“Underwriters”). Plaintiffs
sought to recover on the excess policy and sued Underwriters for breach of
contract and breach of the implied covenant of good faith and fair dealing.
Plaintiffs also sought a declaratory judgment that California law applied to their
claims despite a New York choice of law provision in the excess policy.
Underwriters moved to dismiss the first amended complaint. The district
court found that the choice of law provision was enforceable, the excess policy
unambiguously required exhaustion of underlying limits through payment by the
insurers rather than payment by the insured, and settlement agreements attached to
plaintiffs’ complaint clearly stated that an underlying insurer had not paid the full
limits of its policy. The district court concluded that Underwriters could not be
found liable on any of plaintiffs’ theories because excess coverage had never been
triggered under the terms of the policy, and dismissed with prejudice.
** The Honorable James Donato, United States District Judge for the Northern
District of California, sitting by designation.

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The district court correctly enforced the New York choice of law provision
in the policy. California choice of law considers an international defendant’s
geographic proximity to the chosen state. 1-800-Got Junk? LLC v. Superior Court,
189 Cal. App. 4th 500, 515 (Cal. Ct. App. 2010), as modified (Nov. 19, 2010).
New York is relatively close to London (headquarters of Underwriters) and is next
to Connecticut (headquarters of Underwriters’ United States agent). In addition,
international defendants have an interest in contracting under the laws of a state --
even one not substantially related to the contract -- for reasons of uniformity and
predictability. Restatement (Second) of Conflict of Laws § 187 (1971).
Plaintiffs have not shown that New York law is contrary to a fundamental
California policy. Plaintiffs do not identify any material differences between New
York and California in interpreting the disputed insurance policy, and the result is
the same under the laws of both states. The excess policy unambiguously requires
exhaustion of underlying policy limits “by reason of the payment . . . by the
insurers of the Underlying Policies.” This forecloses the possibility of exhaustion
through payment by parties other than the underlying insurers. Qualcomm, Inc. v.
Certain Underwriters At Lloyd’s, London, 161 Cal. App. 4th 184, 194-95 (Cal. Ct.
App. 2008); Forest Labs., Inc. v. Arch Ins. Co., 953 N.Y.S.2d 460, 463-65 (N.Y.
Sup. Ct. 2012), aff’d, 984 N.Y.S.2d 361 (N.Y. App. Div. 2014). A settlement
agreement attached to the first amended complaint expressly states that an

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underlying insurer paid only $3.47 million out of a $5 million policy limit.
Plaintiffs’ allegations of exhaustion contradict the settlement agreement and are
properly disregarded. Johnson v. Fed. Home Loan Mortg. Corp., 793 F.3d 1005,
1008 (9th Cir. 2015).
Contrary to plaintiffs’ argument, Diamond Heights Homeowners Ass’n. v.
National American Insurance Co., 227 Cal. App. 3d 563, 580 (Cal. Ct. App. 1991),
does not override the exhaustion requirements stated in a policy. Rather, it
addresses the entirely different question of “whether excess insurers have an
absolute right to veto a settlement under a policy’s ‘no action’ and ‘no voluntary
payments’ clauses.” Teleflex Med. Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh,
PA, 851 F.3d 976, 982 (9th Cir. 2017).
Under either New York or California law, excess coverage has not been
triggered and Underwriters are not subject to liability. Because this conclusion is
based on undisputed facts in the record before the district court, amendment would
have been futile and dismissal with prejudice was proper.
AFFIRMED.

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