NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
IN

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- OUT BURGERS, a California corporation, Plaintiff

- Appellant,

v. ZURICH AMERICAN INSURANCE COMPANY, Defendant

- Appellee. No. 22

- 55266 D.C. No. 8:20

- cv - 01000

- JLS

- ADS

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding Submitted March 7, 2023 * * Pasadena, California Before: CALLAHAN, FORREST, and H.A. THOMAS, Circuit Judges. Plaintiff In

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- Out Bur gers (In

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- Out) seeks coverage from its property insurer, Zurich American Insurance Co. (Zurich) , for losses it argues were sustained as a result of t he COVID

- 19 virus

. The district court dismissed In

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-

* 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

MAR 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Out’s consolidated amended complaint for failure to state a claim

. W e have jurisdiction under 28 U.S.C. § 1291 and we affirm. We review de novo the district court’s dismiss al under Federal Rule of Civil Procedure 12(b)(6) and can affirm on any ground supported by the record. ASARCO, LLC v. Union Pac. R. Co. , 765 F.3d 999, 1004 (9th Cir. 2014 ) . Under California law, interpretation of an insurance policy is a question of law. Waller v. Truck Ins. Exch. , Inc. , 11 Cal. 4th 1, 18 (1995)

. In

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- Out has alleged losses due to the presence of the COVID

- 19 virus on its properties

. All of the coverage provisions invoked by In

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- Out in the operative complaint apply only i n situations where there is “direct physical loss of or damage to” property. In

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- Out argues this requirement is met by the presence of the COVID

- 19 virus at its premises. Assuming arguendo that the presence of the COVID

- 19 virus could constitute “direct physical loss of or damage to” property, the policy’s contamination exclusion precludes coverage here. 1 The contamination exclusion bars recovery due to contamination, defined to

1 In

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- Out filed multiple reque sts to stay this case pending resolution of proceedings concerning the certified question in Another Planet Ent ertainment , LLC v. Vigilant Ins urance Co. , 56 F.4th 730, 734 (9th Cir. 2022). See Dkt. No s . 30 , 39

. Because the contamination exclusion controls the outcome of this case, we decline to stay proceedings and make no holding as to whether the presence of COVID

- 19 can constitute “direct physical loss of or damage to” property

. We also decline In

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- Out’s request to certify a question to the Supreme Court of California that is duplicative of what is contemplated in Another Planet.3

include “any condition of property due to the actual presence of any foreign substance, impurit y, pollutant, hazardous material, poison, toxin, pathogen or pathogenic organism, bacteria, virus, disease causing or illness causing agent, Fungus, mold or mildew.” To the extent In

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- Out relies on the presence of the COVID

- 19 virus on its property , its own theory of recovery bars coverage. In

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- Out’s contentions that the contamination exclusion was modified by the “Lo uisiana Endorsement” are not convincing for the reasons given in American International Specialty Lines Insurance Co. v. Continental Casualty Ins urance Co. , 49 Cal. Rptr. 3d 1, 14

– 15 (Ct. App. 2006). The Louisiana Endorsement , as the name suggests, does not apply to properties in California, Arizona, Nevada, Utah, Oregon, Texas, or Colorado. In

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- Out’s argu ment that the policy’s title provision in section 6.20 distinguish es it from the policy in American International is not reasonable

. Read ing th e policy as argued by In

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- Out would require applying multiple state

- specific endorsements with mutually contradictory terms, leading to absurd results. See Eith v. Ketelhut , 242 Cal. Rptr. 3d 566 , 580 (Ct. App. 2018) (noting courts should avoid an interp retation of a contract which will cause absurd results). Considering the Louisiana Endorsement in the context of the whole document, including its placement in a list of thirty

- one state
- specific endorsements, no reasonable reader of the policy would expe ct the Louisiana Endorsement or any other state

- specific endorsement to apply out side of the4

particular state at issue. See Waller , 11 Cal. 4th at 18

– 19 ( “[L]anguage in a contract must be interpreted as a whole . . . [c]ourts will not strain to create an ambiguity where none exists.” (citations omitted)); Union Oil Co. v. Int’l Ins. Co. , 44 Cal. Rptr. 2d 4, 7 (Ct. App. 1995) (“ L anguage in a contract must be construed in the context of th at instrument as a whole

. . . . ” (cleaned up) )

. The fact that Zurich later amended its Loui siana Endorsement to explicitly reference its state

- specific application is irrelevant. See Tzung v. State Farm Fire & Cas. Co. , 873 F.2d 1338 , 1341 (9th Cir. 1989) ( rejecting the plaintiff ’s arguments related to subsequently revised policy languag e ); McKee v. State Farm Fire & Cas. Co. , 193 Cal. Rptr. 745, 748 (Ct. App. 1983) ( finding evidence of subsequent revisions of an exclusionary clause was irrelevant ). Because In

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- Out is barred from recovery by the contamination exclusion, the dismissal by the district court is AFFIRMED.