Combined Communications Corp. v. Seaboard Sur. Co.
| Citation | 641 F.2d 743 |
| Decision Date | 06 April 1981 |
| Docket Number | 79-3120,Nos. 79-3114,s. 79-3114 |
| Parties | 7 Media L. Rep. 1333 COMBINED COMMUNICATIONS CORPORATION, an Arizona Corporation, Appellee, Cross- Appellant, v. SEABOARD SURETY COMPANY, a New York Corporation, Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donald E. Dyekman, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, Ariz., for Seaboard Surety.
W. Charles Thomson, Craig, Greenfield & Irwin, Phoenix, Ariz., for Combined Comm. Corp.
Appeal from the United States District Court for the District of Arizona.
Before GOODWIN and SNEED, Circuit Judges, and MURPHY *, District Judge.
Seaboard Surety Company appeals from a summary judgment entered in favor of combined Communications Corporation. Combined Communications cross appeals from the district court's failure to use its suggested form of judgment and from a denial of attorneys' fees.
Seaboard, an insurance underwriter, issued a Broadcasters Liability Policy to Combined Communications to cover damages caused by the insured's radio and television broadcasts. The policy stated that "$5,000 for each claim shall be deducted from the total amount of all sums which the Company agrees to pay...." Multiple plaintiffs sued Combined Communications in three separate actions. Seaboard argues that the $5,000 deductible amount applies to each claim filed by a plaintiff against Combined Communications. Combined Communications contends that only one $5,000 sum is deductible in connection with each liability-producing broadcast. The district court, agreeing with Combined Communications, granted it summary judgment. 1 We reverse.
The dispute is over the meaning of Endorsement 4 2 of the insurance policy. Arizona law requires that unclear or ambiguous insurance contracts be construed most favorably to the insured. Parks v. American Cas. Co. of Reading, Pa., 117 Ariz. 339, 341, 572 P.2d 801, 803 (1977). Non-ambiguous contracts are construed according to their plain and ordinary meaning. Id.
The courts may not create ambiguities where none exists, even to avoid "harsh" results. State Farm Mutual Automobile Ins. Co. v. O'Brien, 24 Ariz.App. 18, 535 P.2d 46, 48 (Ct.App.1975); Harbor Ins. Co. v. United Services Auto Ass'n, 114 Ariz. 58, 559 P. 178, 198 (Ct.App.1976). As several Arizona cases have stated, the "ambiguity" rule of construction becomes applicable only if, after considering all of the provisions of the policy, it is not possible for the court to ascertain the meaning of the language used when applied to the facts before the court. See, e. g., Stephan v. Allstate Insurance Company, 26 Ariz.App. 367, 548 P.2d 1179, 1182 (Ct.App.1976); Maryland Casualty Company v. Clements, 15 Ariz.App. 216, 487 P.2d 437, 445 (Ct.App.1971). The language of the policy is examined from the viewpoint of one trained neither in law nor in insurance. State Farm Mutual Auto. Ins. Co. v. O'Brien, supra, 535 P.2d at 48.
The district court held that the maximum deductible was $5,000 for liability claims arising from any single occurrence, broadcast or series of broadcasts notwithstanding the number of persons seeking recovery in an action or series of actions against Combined Communications as a result of the broadcast. Such policies no doubt can be purchased. But this does not appear to be one of that type.
We do not find the word "claim" to be ambiguous. Endorsement 4 is a short, three paragraph statement about the deductible. "Claim" is used four times in the three paragraphs. Two of those references are to "claim or suit." The juxtaposition of the words "claim" and "suit" makes it clear that in those two instances "claim" means a claim against Combined Communications, the insured, by an injured third party. It is true that the other two "claims," if read in isolation, might mean either a claim by the insured against the insurer, or a claim against the insured by an injured third party. This is the way the district court must have read the word, and thus found ambiguity. It strains the contract, however, to characterize the latter two references to "claim" as ambiguous. In such a short paragraph, one would not expect the same word to have two different meanings. This is particularly true given that "claim" is not used anywhere in the policy as a claim by the insured against the insurer.
Combined Communications argued that "claim" in paragraph one of Endorsement 4 was ambiguous because "sums" referred to "claims by third parties against the insured." Therefore, Combined Communications reasons, "clai...
To continue reading
Request your trial
-
Hunter v. United Van Lines
... ... Cf. Champion International Corp. v. Brown, 731 F.2d 1406, 1407 (9th Cir.1984) (finding ... What is required in such cases is that the combined amount of the claims meets the federal jurisdictional ... 177, 180-81, 78 L.Ed. 254 (1933); Combined Communications Corp. v. Seaboard Surety Co., 641 F.2d 743 (9th Cir.1981); ... ...
-
Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co.
...increase the amount of the insured's deductible and thereby decrease the amount owed by the insurer. (Combined Communications Corp. v. Seabord Sur. Co. (9th Cir.1981) 641 F.2d 743, 744.) Such result is obviously not favorable to the insured. It also works to the disadvantage of the insured'......
-
CLARENDON America Ins. Co. v. North American CAPACITY Ins. Co.
...$10,000 deductible therefore applied to the separate demands or claims of each workman. Similarly, in Combined Communications Corp. v. Seaboard Surety Co. (9th Cir.1981) 641 F.2d 743, 745, Kent Ins. Co. v. Capitol Maint., Inc. (Fla.Dist.Ct.App.1983) 433 So.2d 1295, 1297, Pennsylvania Home I......
-
Budget Rent-A-Car, Inc. v. Higashiguchi
...reach the jurisdictional amount by aggregating its multiple claims against a single defendant. See Combined Communications Corp. v. Seaboard Sur. Co., 641 F.2d 743, 744 n. 1 (9th Cir.1981) (in declaratory action against its insurer, broadcaster was permitted to aggregate claims for coverage......