                                                                            FILED
                           NOT FOR PUBLICATION                              MAY 19 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WINCOR NIXDORF INC.; ALLIANZ                     No. 13-56202
GLOBAL RISKS US INSURANCE
COMPANY,                                         D.C. No. 2:13-cv-02772-GAF-
                                                 FFM
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

DISCOVER PROPERTY & CASUALTY
INSURANCE COMPANY,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                              Submitted May 8, 2015**
                                Pasadena, California

Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.

       This insurance case arises out of a dispute over whether an insured vehicle

was in “use” when the insured’s employee got out of the vehicle, assaulted a

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
pedestrian rendering him unconscious, and then dragged him to the side of the road

before fleeing the scene of the altercation. The district court held it was not and

dismissed the suit with prejudice under Federal Rule of Civil Procedure 12(b)(6).

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

      Discover Property and Casualty Insurance Company (“Discover”) provided

auto insurance coverage for Wincor Nixdorf, Inc. (“Wincor”) and its employees,

including Robert Kane (“Kane”). Allianz Global Risks US Insurance Company

(“Allianz”) provided commercial general liability coverage for Wincor. On May

21, 2009, Kane was driving in the service of his employer when he came to a

controlled intersection in downtown San Francisco. Although the traffic light was

green for Kane, a pedestrian, Cameron Rodriguez (“Rodriguez”), crossed in front

of his car and caused him to stop. Rodriguez and Kane traded verbal insults at

which point Rodriguez gave Kane “the bird.” Kane then got out of his car and

punched Rodriguez, knocking him to the ground. Kane returned to his work

vehicle, but had second thoughts because he “felt bad” and did not want to “just

leave this guy . . . laying in the street.” Kane thus picked up the unconscious

Rodriguez by the armpits and moved him to the side of the road where Kane

dropped him in the gutter, causing him to hit his head. Kane then drove away.

Rodriguez sustained a broken eye socket and a fracture to the back of his head.


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      Kane was criminally convicted of felony assault and battery, and Rodriguez

also settled a civil lawsuit against Kane and Wincor for $1,250,000. Wincor

tendered to Discover defense of the company in the civil lawsuit, but Discover

refused. Allianz defended Wincor under a reservation of rights. Wincor and

Allianz now sue Discover based on the auto-insurer’s refusal to defend Wincor.

      Discover did not owe a duty to defend Wincor against Rodriguez’s civil suit

where the claims arose out of Kane’s assault and subsequent dragging of

Rodriguez to the side of the road, rather than out of the “use” of the vehicle. See

Cal. Ins. Code § 11580.06(g) (defining “use”); Cal. Auto. Ins. Co. v. Hogan, 112

Cal. App. 4th 1292, 1295, 1298-301 (2003); see also State Farm Mut. Auto. Ins.

Co. v. Fernandez, 767 F.2d 1299, 1302 (9th Cir. 1985). The California Supreme

Court in State Farm Mut. Auto. Ins. Co. v. Partridge, 10 Cal. 3d 94, 100-01 (1973),

“left open” the “exact nature of the required causal connection” to show a vehicle

was in “use” for purposes of the insurance code, but since then the majority of

California Courts of Appeal have held that the “predominating cause/substantial

factor test” should apply. Am. Nat’l Prop. & Cas. Co. v. Julie R., 76 Cal. App. 4th

134, 139-40 (1999); see State Farm Mut. Auto. Ins. Co. v. Grisham, 122 Cal. App.

4th 563, 566-67 (2004); Hogan, 112 Cal. App. 4th at 1298. The district court

properly held “there is no causal connection—predominating, substantial, minimal,


                                          3
or otherwise—between the use of the Vehicle and the injuries Rodriguez sustained

when being moved off the street.” At most, the car provided transportation to the

situs of the tort, but remained an innocent bystander thereafter. See, e.g., Hogan,

112 Cal. App. 4th at 1299-300; cf. State Farm Mut. Auto. Ins. Co. v. Davis, 937

F.2d 1415, 1420-21 (9th Cir. 1991) (finding car was in “use” to facilitate a

highway shooting).

      We agree with the district court and fail to see how Kane’s momentary re-

entry into the vehicle before having second thoughts would dictate a different

outcome from the numerous other cases that have held similar road rage incidents

to have no causal link to the vehicle. See, e.g., Fernandez, 767 F.2d at 1302;

Hogan, 112 Cal. App. 4th at 1300-01. Moreover, even if Kane had been

attempting to move Rodriguez out of the vehicle’s path in order to drive away, this

fact alone would not change the outcome. Therefore, we hold there was “no

possibility of coverage, [and thus] no duty to defend.” State Farm Fire & Cas. Co.

v. Super. Ct., 191 Cal. App. 3d 74, 77 (1987). Absent a duty to defend, Discover

did not breach its contract with Wincor, and all of the other claims asserted by

Wincor and Allianz fail as a result.

      Because Discover had no duty to defend Wincor, we need not reach the

collateral estoppel issue.


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AFFIRMED.




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