08 v. Liberty Insurance Underwriters, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLENE SUE COX, of Charlene Sue
Cox Revocable Trust Dated 10-9-08; ROSE
E. HUTCHINSON; TIMOTHY A.
HUTCHINSON; LESLIE HUTCHINSON;
NICOLAS HUTCHINSON; GEORGE
BURTON REX; MELISSA RAE REX;
EDITH SHELTON, and as custodian for
Amy Shelton; WILDISH STANDARD
PAVING CO.; ROBERT SHELTON,
Plaintiffs-Appellants,
v.
LIBERTY INSURANCE
UNDERWRITERS, INC.,
Defendant-Appellee.
No. 18-35301
D.C. Nos. 3:17-cv-01461-MO
3:17-cv-01462-MO
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted June 3, 2019
Portland, Oregon
Before: MURGUIA and HURWITZ, Circuit Judges, and ZIPPS,** District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
FILED
JUL 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
The plaintiffs are investors in Berjac of Oregon and Berjac of Portland
(collectively “Berjac”). Berjac filed a Chapter 11 reorganization in 2012. On
August 28, 2014, the plaintiffs sued Jones & Roth, P.C. (“JR”), which had provided
accounting services to Berjac. At the time the Chapter 11 petition was filed, Liberty
Insurance Underwriters, Inc. insured JR under a professional liability “claims made
and reported” policy (the “Liberty Policy”). The policy term expired on October 15,
2012.
JR stipulated to judgment in the investors’ suit in return in part for a covenant
by the investors not to execute and assigned its claims under the Liberty Policy to
the investors.1 The investors then filed the underlying garnishment action against
Liberty. After a combined summary judgment hearing and bench trial, the district
court entered judgment in favor of Liberty. This appeal by the investors followed.2
We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. The district court correctly held that JR did not notify Liberty of a potential
claim by the investors during the policy period, a prerequisite for coverage under the
1 JR stipulated to a $3,500,000 judgment that could be only collected from
Liberty. XL Insurance, which had issued a claims-made policy to JR effective
October 15, 2012, agreed to cover a $625,000 settlement to the investors.
2 The Berjac Chapter 11 reorganization had been converted to Chapter 7
proceedings. Thomas Huntsberger, the Chapter 7 trustee, was a party to the
underlying garnishment action, but the appeal was voluntarily dismissed with
prejudice as to him.

-- 2 of 4 --

3
Liberty Policy. A representative of JR telephoned Liberty’s managing general agent
during the policy period and informed the agent of the Berjac Chapter 11 filing, some
Oregon regulatory orders involving Berjac, and JR’s previous provision of
accounting services to Berjac. But, as a prerequisite to coverage of claims not made
during the policy period, the Liberty Policy required JR to explain “why the
Potential Claim may become a Claim.” Even assuming strict compliance with that
provision was not required, see Sutton v. Fire Ins. Exch., 509 P.2d 418, 419–20 (Or.
1973), the district court did not err in concluding that the information supplied by
JR during the policy period did not even substantially comply with the policy
requirement. Indeed, when applying for a subsequent claims-made policy from
another insurer, JR did not list the investors’ claims as “claims or incidents . . .
notified to an insurance company.”
2. The district court also did not err in holding that the so-called “notice-
prejudice rule” does not apply in this case. The rule is typically applied to
occurrence policies, which cover events occurring during the policy period, because
its application “does not materially alter the insurer’s risk.” Or. Sch. Activities Ass’n
v. Nat'l Union Fire Ins. Co. of Pittsburgh, 279 F. App’x 494, 495 (9th Cir. 2008)
(unpublished) (citation omitted). But, for a claims-made policy, “giving notice
within the policy period is what actually creates coverage in the first instance.” Id.;
see also Burns v. Int’l Ins. Co., 929 F.2d 1422, 1424–25 (9th Cir. 1991) (applying

-- 3 of 4 --

4
California law and declining to apply the notice-prejudice rule to a claims-made
policy).
3. Nor is there coverage by estoppel. Although Liberty may have represented
that notice of a Potential Claim through a telephone call would suffice, it did not
represent or engage in conduct suggesting that JR did not need to provide the
information required by the Liberty Policy in that notice. See Kabban v. Mackin,
801 P.2d 883, 886 (Or. Ct. App. 1990).
AFFIRMED.

-- 4 of 4 --