NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AQUA STAR (USA) CORP., a subsidiary of Admiralty Island Fisheries, Inc.,

Plaintiff

- Appellant,

v.

TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA,

Defendant

- Appellee. No. 16

- 35614

D.C. No. 2:14

- cv

- 01368

- RSL

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

Argued and Submitted March 12, 2018

San Francisco, California

Before: McKEOWN and BEA, Circuit Judges, and BENITEZ, ** District Judge.

Aqua Star (USA) Corp. (“Aqua Star”) appeals the district court’s grant of

summary judgment to Travelers Casualty and Surety Company of America

(“Travelers”) i n an insurance dispute over whether a Travelers “Computer Fraud”

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Roger T. Benitez, United States District Judge for t he Southern District of California, sitting by designation. 

# FILED

APR 17 2018

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2

policy covers Aqua Star’s losses from a fraudulent email scheme. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

The parties agree that Washington law governs the interpretation of the

contract. In Washington, “[a]n insurance policy is construed as a whole, with the

policy being given a fair, reasonable, and sensible construction as would be given

to the contract by the avera ge person purchasing insurance. ” Weyerhaeuser Co. v.

Commercial Union Ins. Co. , 142 Wash. 2d 654, 666 (2000), as amended (Jan. 16,

2001) (internal quotation marks omitted) . We “must” enforce “clear and

unambiguous” policy language “as written.” Id. Applying these principles, e ven

assuming without deciding that the policy generally covers “Computer Fraud” of

the kind that duped Aqua Star, the policy’s exclusions foreclose coverage.

Exclusion G unambiguously provides that the policy “ will not apply to loss

or damages resulting directly or indirectly from t he input of Electronic Data by a

natural person having the authority to ente r the Insured’s Computer System

. . . .”

Aqua Star’s losses resulted from employees authorized to enter its computer

system changing wiring information and sending four payments t o a fraudster’s

account. These employees “ha[d] the authority to enter” Aqua Star’s system when

they “input” Electronic Data, on Aqua Star computers, to change the wiring

information and authorize the four wires. Th eir conduct fits squarely within the3

Exclusion. While other contractual exclusions may also bar coverage in this case,

we need not go any further.

Washington’s rule of efficient proximate cause does not help Aqua Star

because that rule “ applies only when two or more perils combine in seque nce to

cause a loss and a covered peril is the predominant or efficient cause of the loss .”

Vision One, LLC v. Philadelphia Indem. Ins. Co. , 174 Wash. 2d 501, 519 (2012)

(first emphasis added). Where, as here, there is only one “peril”

— Computer

Fraud

— “[a ]n insured may not avoid a contractual exclusion merely by affixing an

additional label or separate characterization to the act or event causing the loss.”

Kish v. Ins. Co. of N. Am. , 125 Wash. 2d 164, 170 (1994).

AFFIRMED.