                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 10 2011

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



                            FOR THE NINTH CIRCUIT


MEHMET YALTER; et al.,                           No. 09-56336

             Plaintiffs - Appellants,            D.C. No. 8:03-cv-00080-DOC-
                                                 MLG
  v.

ENDOCARE, INC., a California                     MEMORANDUM*
corporation; et al.,

             Defendants,

  and

FEDERAL INSURANCE COMPANY,

             Third-party-defendant -
Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                           Submitted December 6, 2010**
                               Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: TROTT and WARDLAW, Circuit Judges, and BREWSTER, Senior
District Judge.***

      Mehmet and Bertha Yalter appeal the district court’s grant of defendant

Federal Insurance Company’s Rule 12(b)(6) motion to dismiss the third party

complaint filed against it. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      Federal Insurance Company (Federal) issued an insurance policy providing

coverage to Endocare, the manufacturer of the prostatic stent used in Mr. Yalter’s

surgery. The policy also provided coverage for distributors of Endocare’s

products, “but only with respect to their [the vendor’s] liability for damages for

bodily injury or property damage resulting from the distribution or sale of your

[Endocare’s] products in the regular course of their [the vendor’s] business and

only if this insurance applies to the products-completed operations hazard.” The

products-completed operations hazard was later defined as including “all bodily

injury and property damage arising out of your [Endocare’s] product.”

      It is undisputed that Mr. Yalter’s injuries were caused by the overheating of

saline solution that was subsequently injected into the stent. It is also undisputed

that a representative of Aymed, a distributor of Endocare’s products, was in the

          ***
             The Honorable Rudi M. Brewster, Senior United States District Judge
for the Southern District of California, sitting by designation.

                                          2
room during the surgery. The Yalters allege that Mr. Ay, the manager and

principal of Aymed, was “actively involved” in the negligent use of the overheated

saline solution. Mr. Ay’s conduct during the surgery, however, is not covered by

the policy because Aymed’s liability did not result from the “distribution or sale”

of the prostatic stent.

       Under California law, insurance policies are interpreted using the ordinary

rules of contract construction. Bank of the West v. Sup. Ct., 10 Cal. Rptr. 2d 538,

544 (1992). Thus, “[i]f contractual language is clear and explicit, it governs.” Id.

at 545. We have previously recognized that “[t]he rules regarding interpretation of

insurance contracts in California are well settled. The words of the policy are to be

interpreted according to their ordinary meaning, ‘i.e., according to the plain

meaning which a layperson would ordinarily attach to them.’” Stanford Ranch, Inc.

v. Maryland Cas. Co., 89 F.3d 618 (9th Cir. 1996) (quoting Chatton v. National

Union Fire Ins. Co., 13 Cal. Rptr. 2d 318, 322 (1992)).

       The ordinary meaning of “distribution or sale” does not include attending

medical procedures, nor does it include providing assistance during those

procedures. Thus, any liability resulting from My. Ay’s attendance at Mr. Yalter’s

surgery is unambiguously not covered by the Federal policy. Although the Yalters

attempt to expand the scope of coverage by alleging that Mr. Ay’s attendance at


                                          3
the procedure was during the normal course of Aymed’s distribution of the stent,

the policy must be construed according to its ordinary meaning. A distributor’s

business would not ordinarily include this type of active participation in medical

procedures. Furthermore, Mr. Ay’s conduct does not fall within the definition of

the products-completed operations hazard since Mr. Yalter’s injuries were not

connected to any defect in Endocare’s product. See Fireboard Corp. v. Hartford

Accident & Indemnity Co., 20 Cal. Rptr. 2d 376 (Cal. Ct. App. 1993).

       Federal does not have the duty to defend Aymed in the present suit if

“undisputed facts show[] that as a matter of law there [is] no potential for liability

to defend because there [is] no potential for coverage.” Reese v. Travelers

Insurance Co., 129 F.3d 1056, 1062 (9th Cir. 1997) (citing Montrose Chemical

Corp. v. Superior Court, 24 Cal. Rptr. 2d 467, 474 (1993) (en banc)). Because we

conclude that Aymed’s liability is not covered by the policy as a matter of law, we

affirm the district court’s conclusion that Federal did not have a duty to provide

Aymed with a defense.

      AFFIRMED.




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