NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

ST. PAUL MERCURY INSURANCE

COMPANY,

Plaintiff-Appellant,

 v.

FEDERAL DEPOSIT INSURANCE

CORPORATION, as receiver for Pacific

Coast National Bank,

Defendant-Appellee.

No. 14-56830

D.C. No. 

8:13-cv-00424-AG-RNB

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Andrew J. Guilford, District Judge, Presiding

Argued and Submitted October 6, 2016

Pasadena, California

Before: REINHARDT, OWENS, and FRIEDLAND, Circuit Judges

St. Paul Mercury Insurance Company, a subsidiary of The Travelers

Companies, Inc. (Travelers), appeals from the district court’s decision granting the

Federal Deposit Insurance Corporation (FDIC)’s motion for summary judgment

FILED

OCT 19 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
and denying Travelers’ motion for summary judgment. As the parties are familiar

with the facts, we do not recount them here. We review de novo the district court’s

decision. Avery v. First Resolution Mgmt. Corp., 568 F.3d 1018, 1021 (9th Cir.

2009). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Preliminarily, we note that the precise language of this precise insurance

policy has been held to be ambiguous by the Eleventh Circuit, which concluded

that the FDIC was entitled to relief for the same reasons it advances here. See St.

Paul Mercury Ins. Co. v. FDIC, 774 F.3d 702, 710-11 (11th Cir. 2014). We are

reluctant to afford a different meaning to the provisions of an insurance policy than

it has been given in another circuit in the absence of a clearly erroneous

construction by that circuit. Here, we can by no means so characterize the

Eleventh Circuit’s interpretation of the policy. In fact, we believe it to be correct. 

2. The district court properly held that the insurance policy’s “unrepaid loan

carve-out” does not unambiguously bar coverage for the damages sought by the

FDIC in its action against the directors and officers and that it therefore must be

construed to allow coverage. The FDIC is not seeking repayment of loans but is

instead using charge-offs on loans to calculate the losses caused by the directors’

and officers’ allegedly tortious conduct in operating and managing the lending

function of the now-defunct Pacific Coast National Bank. Had Travelers intended

2
the carve-out to apply unambiguously to these damages, it could have used broader

language, similar to language it used elsewhere in the insurance policy, to bar

coverage for loss that is “based upon, arising out of, or attributable to” any loan. In

the absence of that broader language, the carve-out does not apply unambiguously

to the tort damages the FDIC seeks. Even if one reasonable interpretation of the

carve-out would bar coverage, another reasonable interpretation exists that would

allow coverage, and therefore, the carve-out is ambiguous. Waller v. Truck Ins.

Exch., Inc., 900 P.2d 619, 627 (Cal. 1995) (“A policy provision will be considered

ambiguous when it is capable of two or more constructions, both of which are

reasonable.”).

This ambiguity should be construed against Travelers, the insurer, “to

protect the insured’s reasonable expectation of coverage.” Powerine Oil Co., Inc.

v. Superior Ct., 118 P.3d 589, 598 (Cal. 2005) (quoting Foster-Gardner, Inc. v.

Nat’l Union Fire Ins. Co., 959 P.2d 265, 273 (Cal. 1998)). Here, it was reasonable

for the insureds to expect that the policy would provide coverage for damages

awarded as the result of tortious mismanagement by the bank’s directors and

officers. Accordingly, we affirm the district court’s conclusion that the “unrepaid

loan carve-out” does not bar coverage for the damages sought by the FDIC. 

3
3. The district court also properly held that the insurance policy’s “insured

v. insured” exclusion is ambiguous as applied to the FDIC as receiver and therefore

must be construed in favor of coverage. Contrary to Travelers’ contentions, neither

the Supreme Court’s decision in O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994),

nor our decision in Biltmore Associates, LLC v. Twin City Fire Insurance

Company, 572 F.3d 663 (9th Cir. 2009), compels a contrary result, because neither

addressed the specific issue that this appeal raises. Instead, it is ambiguous

whether the FDIC as receiver is pursuing its claims against the directors and

officers “on behalf of” the defunct bank within the meaning of the “insured v.

insured” exclusion, because the FDIC as receiver represents a number of interests

and does not operate as a normal successor in interest. See FDIC v. O’Melveny &

Myers, 61 F.3d 17, 19 (9th Cir. 1995) (per curiam). Furthermore, the “insured v.

insured” exclusion does not refer to claims brought by the FDIC as receiver, and

the insurance policy does not contain a regulatory exclusion.

As the insurer, Travelers bears the burden to “phrase exceptions and

exclusions in clear and unmistakable language” and of establishing that a “claim is

specifically excluded.” MacKinnon v. Truck Ins. Exch., 73 P.3d 1205, 1213 (Cal.

2003) (citations omitted). Travelers failed to carry that burden, despite having

notice that similar exclusions had been deemed ambiguous by other courts. 

4
Accordingly, we affirm the district court’s determination that the “insured v.

insured” exclusion is ambiguous and does not bar coverage for the FDIC’s action

against the directors and officers. 

AFFIRMED.

5