Gentile v. Anesthesiologists' Professional Assur. Co., No. 94-15213

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 62 F.3d 1424
• Docket Number: No. 94-15213
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. M. MELVIN GENTILE, D.O., LTD., an Arizona corporation; M. Melvin Gentile, D.O.; Anesthesia Associates of Arizona, an Arizona partnership; Russell Jorgensen, D.O.; Community Anesthesiologists, P.C., an Arizona corporation; Lawrence Lee, D.O.; Billie Douglas Hunt, Individually and as Guardian for and on behalf of Ivan Hunt, and for and on behalf of Pawneace Hunt, a minor, Miracles Hunt, Hosanna Hunt, a minor, Helaman Hunt, a minor, Beauty Hunt, a minor, Manti Hunt, a minor, Dickie Jo Hunt, Individually, Michalene Ray Hunt, Individually, Lane Hunt, Individually, and Shenandoah Hunt, Individually, Plaintiffs-Appellants, v. ANESTHESIOLOGISTS' PROFESSIONAL ASSURANCE COMPANY, a Tennessee corporation, Defendant-Appellee.
• Decision Date: 02 August 1995

Page 1424

62 F.3d 1424 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. M. MELVIN GENTILE, D.O., LTD., an Arizona corporation; M.
Melvin Gentile, D.O.; Anesthesia Associates of Arizona, an
Arizona partnership; Russell Jorgensen, D.O.; Community
Anesthesiologists, P.C., an Arizona corporation; Lawrence
Lee, D.O.; Billie Douglas Hunt, Individually and as
Guardian for and on behalf of Ivan Hunt, and for and on
behalf of Pawneace Hunt, a minor, Miracles Hunt, Hosanna
Hunt, a minor, Helaman Hunt, a minor, Beauty Hunt, a minor,
Manti Hunt, a minor, Dickie Jo Hunt, Individually, Michalene
Ray Hunt, Individually, Lane Hunt, Individually, and
Shenandoah Hunt, Individually, Plaintiffs-Appellants,
v.
ANESTHESIOLOGISTS' PROFESSIONAL ASSURANCE COMPANY, a
Tennessee corporation, Defendant-Appellee. No. 94-15213. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 14, 1995.
Decided Aug. 2, 1995.

Before: SNEED, CANBY, and FERNANDEZ, Circuit Judges.

MEMORANDUM ^*

Melvin Gentile, D.O., Ltd., Melvin Gentile, D.O., Russell Jorgensen, D.O., Anesthesia Association of Arizona (AAA), and members of the family of Ivan Hunt appeal the district court's summary judgment in favor of Anesthesiologists' Professional Assurance Company (APAC). Appellants brought a diversity action against APAC, which alleged that APAC wrongfully denied coverage under professional liability insurance policies. Appellants claimed breach of contract, bad faith, false advertising, and misrepresentation. We affirm.

1. Gentile asserts that the district court erred when it granted APAC summary judgment on the ground that Gentile's claim lay outside of the coverage period. We agree with the district court that the claim clearly was outside of the coverage period. Gentile directed that the APAC policy be cancelled as of July 14, 1988, and that his tail coverage commence as of that day. The incident in question occurred August 12, 1988 when Ivan Hunt was injured. That was clearly outside of the coverage period. Gentile now claims that he made a mistake and really meant to have coverage for all incidents through August 12, 1988. Perhaps he did. If so, it was a unilateral mistake, and that cannot change the clear language of the insurance contract itself. See Taylor v. State Farm Mutual Auto Ins. Co., 175 Ariz. 148, 153, 854 P.2d 1134, 1139 (1993); Nationwide Resources Corp. v. Massabni, 134 Ariz. 557, 564-65, 658 P.2d 210, 217-18 (Ct.App.1982).

2. Gentile then says that the insurance contract is, somehow, ambiguous and avers that the ambiguity must be construed against the insurance company. In the first place, the theory that ambiguities are automatically construed against insurance companies is not the law of Arizona. See Transamerica Ins. Group v. Meere, 143 Ariz. 351, 355, 694 P.2d 181, 185 (1984); Arizona Property & Casualty Ins. Guar. Fund v. Helme, 153 Ariz. 129, 134, 735 P.2d 451, 456 (1987); Smith v. Hughes Aircraft Co., 783 F.Supp. 1222, 1226 (D.Ariz.1991), aff'd in part and rev'd in part, 10 F.3d 1448, amended, 22 F.3d 1432 (9th Cir.1993). In the second place, there is no ambiguity whatever--the policy simply and clearly does not cover the date of the incidents. Gentile says that he finds an ambiguity because he meant to have coverage through his retirement date and meant to have the tail cover all incidents through that date. Perhaps he did, but if we were to treat the deviation from that intended date as an ambiguity, it was an ambiguity caused by Gentile or someone in his employ. That would tend to point toward resolving the ambiguity against him. See Equitable Life & Casualty Ins. Co. v. Rutledge, 9 Ariz.App. 551, 554, 454 P.2d 869, 872 (1969); see also Showcase Realty, Inc. v. Whittaker, 559 F.2d 1165, 1168 (9th Cir.1977) (ambiguity construed against drafter--Washington law). More to the point, however, we do not perceive that Gentile's mistake created any ambiguity in the contract itself.

3. Gentile then asserts that APAC has violated Arizona law, which prohibits misrepresentations in the sale of insurance. See Ariz.Rev.Stat. Secs. 20-443--20-440.01. He says that is so because a claims made policy is somehow illusory if it allows the insured to set a...