                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 14 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

ST. PAUL MERCURY INSURANCE                       No. 14-56723
COMPANY, a Minnesota corporation,
                                                 D.C. No.
              Plaintiff-Appellant,               8:13-cv-00802-JVS-AJW

 v.
                                                 MEMORANDUM*
NAVIGATORS SPECIALTY
INSURANCE COMPANY, fka NIC
Insurance Company, a New York
corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                          Submitted February 10, 2017**
                              Pasadena, California

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

      Plaintiff St. Paul Mercury Insurance Company and Defendant Navigators

Specialty Insurance Company both insured a subcontractor that was sued for

      *
             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. Fed. R. App. P. 34(a)(2).
performing faulty construction work on a retaining wall. Defendant denied that it

had a duty to defend the subcontractor. The subcontractor settled the underlying

case. Plaintiff paid the entire amount of the settlement and then initiated this

action, seeking declaratory relief, equitable subrogation, equitable contribution,

and equitable indemnity. The district court granted summary judgment to

Defendant, and Plaintiff timely appeals. On de novo review, Reese v. Travelers

Ins. Co., 129 F.3d 1056, 1059–60 (9th Cir. 1997), we affirm.

      Defendant’s policy did not cover the loss. The underlying case against the

subcontractor alleged only damage caused by "subsidence," as defined in the

policy. The policy excluded "subsidence" from coverage, including the duty to

defend.

      Even if the initial complaint in the underlying case could be read to allege

property damage other than that caused by subsidence, Defendant’s investigation

clarified that the only damage Plaintiff claimed was damage caused by subsidence.

See Waller v. Truck Ins. Exch., Inc., 900 P.2d 619, 628 (Cal. 1995) (holding that,

when extrinsic facts eliminate the potential for coverage, an insurer may decline to

defend even if the complaint had suggested potential liability). That is, the

investigation eliminated any possibility of coverage.

      AFFIRMED.


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