                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 25 2014

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



                            FOR THE NINTH CIRCUIT


U.S. SPECIALTY INSURANCE CO.,                    No. 12-56164

              Plaintiff - counter-defendant -    D.C. No. 5:11-cv-00617-RGK-OP
Appellant,

  v.                                             MEMORANDUM*

XL SPECIALTY INSURANCE
COMPANY,

              Defendant - counter-claimant
- Appellee.


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

                     Argued and Submitted February 13, 2014
                              Pasadena, California

Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges.

       The district court correctly granted summary judgment to XL Specialty

Insurance Co. because exclusion 2(g) of the XL insurance policy applies to the

aircraft accident here. Exclusion 2(g) excludes from coverage bodily injury or


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                 Page 2 of 2
property damage “arising out of the . . . use . . . of any aircraft . . . operated by . . .

any insured.” Thus, the exclusion applies here if, at the time of the accident, the

aircraft was operated by the insured, Championship Aviation, Inc. (CAI).

       U.S. Specialty Insurance Co. obtained a default judgment against CAI based

in part on U.S. Specialty’s allegation that the aircraft was operated by CAI at the

time of the accident. In its underlying action against CAI, U.S. Specialty alleged

that “[a]t all times herein relevant, the Aircraft was . . . operated by defendant[]

CAI.” It then reincorporated that allegation throughout its complaint. Having

obtained the default judgment it seeks to enforce in this action based in part on the

allegation that CAI did operate the aircraft, U.S. Specialty cannot now claim that

CAI did not operate the aircraft in order to avoid the application of exclusion 2(g).

See Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782–83 (9th Cir.

2001). That remains true even though U.S. Specialty took its original position in a

different action. Id.

       AFFIRMED.
