                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 25 2014

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



                            FOR THE NINTH CIRCUIT

INTRANSIT, INC., an Oregon                       No. 13-35002
corporation, DBA UTI Transport
Solutions,                                       D.C. No. 1:11-cv-03146-CL

              Plaintiff - Appellee,
                                                 MEMORANDUM*
  v.

TRAVELERS PROPERTY AND
CASUALTY COMPANY OF AMERICA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Mark D. Clarke, Magistrate Judge, Presiding

                         Argued and Submitted July 8, 2014
                                 Portland, Oregon

Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.

       The district court erred in granting Intransit, Inc.’s motion for summary

judgment and denying Travelers Property and Casualty Co.’s cross-motion for

summary judgment. Under Oregon law, ambiguous terms in insurance contracts



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                             Page 2 of 3
are interpreted to the benefit of the insured. Hoffman Constr. Co. v. Fred S. James

& Co., 836 P.2d 703, 706–07 (Or. 1992) (en banc). The district court properly

concluded that the term “carrier” is ambiguous and must therefore include both

fraudulent and legitimate motor transportation companies. But the district court

erred by not giving the term “carrier” the same meaning when construing the

policy’s exclusion for carrier dishonesty. Nothing in the insurance agreement

“clearly indicat[es]” an intent to define the term “carrier” differently in the

coverage and exclusions provisions. Schweigert v. Beneficial Standard Life Ins.

Co., 282 P.2d 621, 626 (Or. 1955). Absent such a clear indication, Oregon courts

presume that a term has a consistent meaning throughout an insurance contract.

See id. at 625–26. The criminal acts of the fraudulent “carrier” that resulted in the

loss are therefore subject to the exclusion. However, Intransit is entitled to recover

the $50,000 provided by the “‘Carrier’ Dishonesty” endorsement.

      In light of our holding, the district court’s award of attorney’s fees must be

reversed. Intransit’s recovery does not exceed the $50,000 tender that Travelers

made prior to the suit. Intransit is therefore not entitled to attorney’s fees. See Or.

Rev. Stat. § 742.061(1).

      The judgment is reversed and the case is remanded with instructions to enter

judgment in favor of Intransit in the amount of $50,000.
                         Page 3 of 3
REVERSED AND REMANDED.
