NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UMPQUA BANK, an Oregon chartered bank, Plaintiff - Appellant,
v. FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, Defendant - Appellee. No. 11-17660D.C. No. 2:09-cv-03208-WBSEFB
MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California William B. Shubb, Senior District Judge, Presiding Argued and Subm itted October 11, 2013 San Francisco, California Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges. “We review the district court’s grant of sum m ary judgm ent de novo .” Hamilton v. State Farm Fire & Cas. Co. , 270 F.3d 778, 782 (9th Cir. 2001). “We will only affirm if, viewing that evidence in the light m ost favorable to the 

# FILED
OCT 18 2013 M OLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.nonm oving party, there are no genuine issues of m aterial fact and the district court

correctly applied the relevant substantive law.” Id. We affirmthe district court’s grant of sum m ary judgm ent in favor of First Am erican Title Insurance Com pany. 1. Um pqua Bank’s claim that First Am erican breached its agreem ent to provide title insurance to Um pqua m ust fail. The undisputed evidence shows that First Am erican is not liable for Um pqua’s loss or dam age, because Um pqua voluntarily settled a claim without prior written consent from First Am erican. The no voluntary paym ents (NVP) provision of the insurance contract (paragraph 8(c)), specifically provides that First Am erican “shall not be liable for loss or dam age to [Um pqua] for liability voluntarily assum ed by [Um pqua] in settling any claim or suit without [First Am erican’s] prior written consent.” California law outlines that an NVP provision m eans that “insureds cannot unilaterally settle a claim before the establishm ent of the claim against them and the insurer’s refusal to defend in a lawsuit to establish liability.” Low v. Golden Eagle Ins. Co. , 2 Cal. Rptr. 3d 761, 770 (Cal. Ct. App. 2003) (citing Jamestown Builders, Inc. v. Gen. Star Indemnity Co. , 91 Cal. Rptr. 2d 514, 517 (Cal. Ct. App. 1999)). For fourteen m onths before tendering the defense to First Am erican, Um pqua litigated the claim (brought against it by Teichert) that it now alleges should be covered by the insurance

2agreem ent. Only fourteen days after tendering the defense, Um pqua settled the

claim without First Am e rican’s consent. 2. No valid exception to enforcing the NVP provision applies. The fact that Um pqua litigated with Teichert for fourteen m onths before notifying First Am erican of the claim

dem onstrates that the ensuing settlem ent was not rendered involuntary by circum stances outside of Um pqua’s control. Jamestown Builders , 91 Cal. Rptr. 2d at 516. Um pqua also does not dispute that it knew the subject coverage applied to the Teichert dispute at its outset. Faust v. The Travelers , 55 F.3d 471, 473 (9th Cir. 1995). And First Am erican did not abandon Um pqua, because Um

pqua did not give First Am erican tim e to decide whether First Am erican was going to assum e or reject the defense before Um pqua settled with Teichert. Gribaldo, Jacobs, Jones & Assocs. v. Agrippina Versicherunges A.G. , 476 P.2d 406, 415 (Cal. 1970)

. 3. Finally, this court need not consider Um pqua’s fact-intensive estoppel and waiver argum ents, because they were not m a de before the district court. G reat Sw. Life Ins. Co. v. Frazier , 860 F.2d 896, 903 (9th Cir. 1988). Sim ilarly, Um pqua’s argum ent contesting First Am e rican’s other grounds for denying insurance coverage are outside the bounds of this appeal, as the district court granted
sum m ary judgm ent only with respect to the applicability of the NVP provision. 3Int’l Union of Bricklayers v. Martin Jaska, Inc. , 752 F.2d 1401, 1404 (9th Cir.

1985). AFFIRMED
.

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