Ahmad Hajj, M.d. v. Hiscox Dedicated Corporate Member Ltd., erroneously sued as "Underwriters at…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AHMAD HAJJ, M.D.,
Plaintiff-Appellant,
v.
HISCOX DEDICATED CORPORATE
MEMBER LTD., erroneously sued as
"Underwriters at Lloyd's, London" and
"Hiscox Insurance Agency",
Defendant-Appellee,
and
HISCOX INSURANCE COMPANY, INC.;
et al.,
Defendants.
No. 21-55300
D.C. No.
8:19-cv-02056-JLS-JDE
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted January 14, 2022**
Pasadena, California
* 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).
FILED
JAN 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
Before: M. SMITH and OWENS, Circuit Judges, and S. MURPHY, III,*** District
Judge.
Plaintiff-Appellant Ahmad Hajj appeals from the district court’s order
granting summary judgment for Defendant-Appellee Hiscox Dedicated Corporate
Member Ltd. (“Hiscox”) on Hajj’s claims for breach of contract and breach of the
implied covenant of good faith and fair dealing. As the parties are familiar with
the facts, we do not recount them here. Reviewing the district court’s grant of
summary judgment de novo, Weber v. Allergan, Inc., 940 F.3d 1106, 1110 (9th
Cir. 2019), we affirm.
1. The insurance policies issued by Hiscox cover only claims both “made”
against Hajj and “reported” to Hiscox within the applicable policy period. And
under California insurance law, “a claim is ‘made’ only when the party claimed
against learns of the claim.” Safeco Surplus Lines Co. v. Emp.’s Reinsurance
Corp., 11 Cal. App. 4th 1403, 1408 (1992). Here, as the district court correctly
noted, Hajj’s attorney in the underlying malpractice suit appeared on his behalf in a
case management conference on March 6, 2017. Because Hajj does not allege that
this appearance was unauthorized, there is no genuine dispute that Hajj had learned
of the malpractice claim by March 6, 2017, at the latest. The malpractice claim,
*** The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.

-- 2 of 3 --

3
therefore, was “made” outside the policy period for the 2017-18 Policy (i.e., May
9, 2017 to May 9, 2018), and Hiscox did not breach the insurance agreement by
refusing to provide for Hajj’s legal defense.
Nor did Hiscox breach the 2016-17 Policy, because it is undisputed that Hajj
reported the claim on May 8, 2018, outside the applicable policy period (May 9,
2016 to May 9, 2017). For these reasons, the district court properly granted
Hiscox’s motion for summary judgment as to Hajj’s breach of contract claim.
2. Hajj’s claim for breach of the implied covenant of good faith and fair
dealing fares no better. “[I]f there is no potential for coverage and, hence, no duty
to defend under the terms of the [liability insurance] policy, there can be no action
for breach of the implied covenant of good faith and fair dealing.” Waller v. Truck
Ins. Exch., Inc., 900 P.2d 619, 639 (Cal. 1995), as modified on denial of reh’g
(Oct. 26, 1995). As there was no potential for coverage under either of Hajj’s
insurance policies (for the reasons already discussed), the claim for breach of the
covenant of good faith and fair dealing was properly dismissed.
AFFIRMED.

-- 3 of 3 --