RIVKA OFIR, Ph. D. v. Transamerica Premier Life Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIVKA OFIR, Ph. D.,
Plaintiff-Appellant,
v.
TRANSAMERICA PREMIER LIFE
INSURANCE COMPANY,
Defendant-Appellee.
No. 18-55393
D.C. No.
3:17-cv-01544-MMA-JMA
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted October 17, 2019**
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and VITALIANO,*** District
Judge.
* 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 Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
FILED
OCT 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Rivka Ofir appeals from the district court’s judgment dismissing her
amended complaint with prejudice for failure to state a claim. We have
jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Biltmore Assocs.,
LLC v. Twin City Fire Ins. Co., 572 F.3d 663, 668 (9th Cir. 2009), we affirm.
1. The district court properly dismissed Ofir’s claim for breach of contract.
Although “an insurance company is bound by a greater coverage in an earlier
policy when a renewal policy is issued but the insured is not notified of the specific
reduction in coverage,” Davis v. United Servs. Auto. Ass’n, 273 Cal. Rptr. 224, 230
(Ct. App. 1990), here there was no reduction in coverage. Transamerica’s
representation of “similar” coverage was thus irrelevant. The aviation exclusion
provision was “conspicuous, plain and clear” and therefore enforceable. Haynes v.
Farmers Ins. Exch., 89 P.3d 381, 385 (Cal. 2004) (quoting Steven v. Fid. & Cas.
Co. of N.Y., 377 P.2d 284, 294 (Cal. 1962)). Assuming Ofir adequately pled
procedural unconscionability, she alleged nothing about the aviation exclusion that
was “so harsh or oppressive that it should not be enforced,” as is required to avoid
its enforcement. Mission Viejo Emergency Med. Assocs. v. Beta Healthcare Grp.,
128 Cal. Rptr. 3d 330, 340 (Ct. App. 2011).
2. Because Ofir failed to allege a claim for breach of contract, her claim for
bad faith insurance denial necessarily fails as well. See Behnke v. State Farm Gen.
Ins. Co., 127 Cal. Rptr. 3d 372, 393 (Ct. App. 2011).

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3. The district court properly dismissed Ofir’s claim for breach of fiduciary
duty. Transamerica, as Affinion’s and ultimately Hartford’s agent, was not Ofir’s
fiduciary and owed her no duty beyond the contractual duty of good faith. See Vill.
Northridge Homeowners Ass’n v. State Farm Fire & Cas. Co., 237 P.3d 598, 607–
08 (Cal. 2010). To the extent Ofir argues that Transamerica had a fiduciary duty
because it was also serving as her credit union’s agent, a credit union is the
insurer’s agent in facilitating an insurance transaction. See McCormick v. Sentinel
Life Ins. Co., 200 Cal. Rptr. 732, 737 (Ct. App. 1984); cf. Bass v. John Hancock
Mut. Life Ins. Co., 518 P.2d 1147, 1150 (Cal. 1974) (holding that “the employer is
the agent of the insurer in performing the duties of administering group insurance
policies” rather than vice versa).
4. The district court also properly dismissed Ofir’s fraud claim.
Transamerica’s promise of “similar” coverage was not materially false, and Ofir’s
reliance on that statement was unreasonable. See Hadland v. NN Inv’rs Life Ins.
Co., 30 Cal. Rptr. 2d 88, 89, 93 (Ct. App. 1994) (holding that insureds who failed
to read an insurance certificate could not have justifiably relied on the insurance
agent’s representation that “coverage under the [prospective] policy was ‘as good
if not better’ than coverage under [their existing] policy”).
5. The district court did not abuse its discretion by denying leave to amend.
Amendment to add further factual allegations would have been futile given the

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legal deficiencies in Ofir’s theories of relief. See Hoang v. Bank of Am., N.A., 910
F.3d 1096, 1103 (9th Cir. 2018).
AFFIRMED.

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