                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 18 2013

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



                            FOR THE NINTH CIRCUIT


UMPQUA BANK, an Oregon chartered                 No. 11-17660
bank,
                                                 D.C. No. 2:09-cv-03208-WBS-
              Plaintiff - Appellant,             EFB

  v.
                                                 MEMORANDUM*
FIRST AMERICAN TITLE INSURANCE
COMPANY, a California corporation,

              Defendant - Appellee.


                  Appeal from the United States District Court
                       for the Eastern District of California
                William B. Shubb, Senior District Judge, Presiding

                     Argued and Submitted October 11, 2013
                            San Francisco, California

Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.

       “We review the district court’s grant of summary judgment de novo.”

Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). “We

will only affirm if, viewing that evidence in the light most favorable to the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
nonmoving party, there are no genuine issues of material fact and the district court

correctly applied the relevant substantive law.” Id. We affirm the district court’s

grant of summary judgment in favor of First American Title Insurance Company.

      1. Umpqua Bank’s claim that First American breached its agreement to

provide title insurance to Umpqua must fail. The undisputed evidence shows that

First American is not liable for Umpqua’s loss or damage, because Umpqua

voluntarily settled a claim without prior written consent from First American. The

no voluntary payments (NVP) provision of the insurance contract (paragraph 8(c)),

specifically provides that First American “shall not be liable for loss or damage to

[Umpqua] for liability voluntarily assumed by [Umpqua] in settling any claim or

suit without [First American’s] prior written consent.” California law outlines that

an NVP provision means that “insureds cannot unilaterally settle a claim before the

establishment of the claim against them and the insurer’s refusal to defend in a

lawsuit to establish liability.” Low v. Golden Eagle Ins. Co., 2 Cal. Rptr. 3d 761,

770 (Cal. Ct. App. 2003) (citing Jamestown Builders, Inc. v. Gen. Star Indemnity

Co., 91 Cal. Rptr. 2d 514, 517 (Cal. Ct. App. 1999)). For fourteen months before

tendering the defense to First American, Umpqua litigated the claim (brought

against it by Teichert) that it now alleges should be covered by the insurance




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agreement. Only fourteen days after tendering the defense, Umpqua settled the

claim without First American’s consent.

      2. No valid exception to enforcing the NVP provision applies. The fact that

Umpqua litigated with Teichert for fourteen months before notifying First

American of the claim demonstrates that the ensuing settlement was not rendered

involuntary by circumstances outside of Umpqua’s control. Jamestown Builders,

91 Cal. Rptr. 2d at 516. Umpqua also does not dispute that it knew the subject

coverage applied to the Teichert dispute at its outset. Faust v. The Travelers, 55

F.3d 471, 473 (9th Cir. 1995). And First American did not abandon Umpqua,

because Umpqua did not give First American time to decide whether First

American was going to assume or reject the defense before Umpqua settled with

Teichert. Gribaldo, Jacobs, Jones & Assocs. v. Agrippina Versicherunges A.G.,

476 P.2d 406, 415 (Cal. 1970).

      3. Finally, this court need not consider Umpqua’s fact-intensive estoppel and

waiver arguments, because they were not made before the district court. Great Sw.

Life Ins. Co. v. Frazier, 860 F.2d 896, 903 (9th Cir. 1988). Similarly, Umpqua’s

argument contesting First American’s other grounds for denying insurance

coverage are outside the bounds of this appeal, as the district court granted

summary judgment only with respect to the applicability of the NVP provision.


                                          3
Int’l Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.

1985).

      AFFIRMED.




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