                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 02 2011

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



                           FOR THE NINTH CIRCUIT


HARRIS THERMAL TRANSFER                         No. 10-35712
PRODUCTS, INC.,
                                                D.C. No. 3:09-cv-00718-PK
             Plaintiff - Appellant,

  v.                                            MEMORANDUM*

JAMES RIVER INSURANCE
COMPANY,

             Defendant - Appellee.

HARRIS THERMAL TRANSFER                         No. 10-35749
PRODUCTS, INC.,
                                                D.C. No. 3:09-cv-00718-PK
             Plaintiff - Appellee,

  v.

JAMES RIVER INSURANCE
COMPANY,

             Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Oregon
                    Paul Papak, Magistrate Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Argued and Submitted October 13, 2011
                                Portland, Oregon

Before: BERZON and N.R. SMITH, Circuit Judges, and SMITH, District Judge.**

      Harris Thermal Transfer Products, Inc. (Harris Thermal) and James River

Insurance Company (James River) cross-appeal from the district court’s grant of

summary judgment in favor of James River and the district court’s denial of Harris

Thermal’s motion for summary judgment. We review de novo a district court’s

ruling on cross-motions for summary judgment. Redevelopment Agency of City of

Stockton v. BNSF Ry. Co., 643 F.3d 668, 672 (9th Cir. 2011).

      From the allegations in Delta-T’s counterclaims, it is plain that Delta-T’s

claims “directly . . . [arose] out of or result[ed] from the design or manufacture of

any goods or products . . . sold or supplied by [Harris Thermal].” Thus, these

claims fall squarely within the coverage exclusion set forth in Section III(j) of the

policy that Harris Thermal held with James River. Further, Delta-T’s claims are,

as alleged, attributable to “faulty workmanship, construction[,] or work not in

accordance with [design specifications].” Thus, Delta-T’s claims also squarely fall

within the coverage exclusion set forth in Section III(8). Either exclusion is

sufficient to negate James River’s duty to defend. Accordingly, with respect to the

       **
             The Honorable William E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.

                                           2
duty to defend claim, we affirm the district court’s grant of summary judgment in

favor of James River and affirm its denial of Harris Thermal’s cross-motion.

      Moreover, we affirm the district court’s sua sponte dismissal of the

indemnity claim because the underlying action plainly is not covered by the policy

in light of these two coverage exclusions. As we have been informed that the

underlying action has settled, there is no further information to be gleaned that

could give rise to a duty to indemnify under this policy. See Ledford v. Gutoski,

877 P.2d 80, 84 (Or. 1994) (noting that, where an insurer does not have a duty to

defend based on the facts alleged in the complaint, it may still be possible to

demonstrate a duty to indemnify based on the facts proven at trial); see also Weber

v. Chicago Title Ins. Co. of Oregon, 7 P.3d 714, 716 (Or. Ct. App. 2000) (noting

that an insurer’s duty to defend generally is broader than its duty to indemnify).

      Because we affirm the district court on these grounds, we do not reach the

other issues raised by Harris Thermal on appeal, nor those raised by James River in

its cross-appeal.

      AFFIRMED.




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