                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 07 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SCOTT MINKLER,                                   No. 07-56689

              Plaintiff - Appellant,             D.C. No. CV-07-04374-MMM

  v.
                                                 MEMORANDUM *
SAFECO INSURANCE COMPANY,

              Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                             Argued February 13, 2009
                            Resubmitted October 7, 2010
                                Pasadena, California

Before: BEA and IKUTA, Circuit Judges, and FRIEDMAN, Senior Circuit
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Daniel M. Friedman, Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.

                                          1
      Scott Minkler (“Minkler”) appeals the district court’s order that granted

Safeco Insurance Company of America’s (“Safeco”) Rule 12(b)(6) motion to

dismiss Minkler’s claims as an assignee of Betty Schwartz for: (1) breach of

contract; (2) breach of the implied covenant of good faith and fair dealing; (3)

recovery as a judgment creditor; and (4) professional negligence. We have

jurisdiction pursuant to 28 U.S.C. § 1291(a) and we reverse.1

      In the underlying litigation, Minkler sued David Schwartz for sexual

molestation and asserted a negligent supervision claim against David’s mother,

Betty Schwartz. During the relevant period, David resided—and allegedly

molested children—in Betty’s home. David and Betty Schwartz are co-insureds

under a homeowners insurance policy issued by Safeco. The policy contains an

intentional acts exclusion that states the policy does not provide coverage for

injuries resulting from the intentional act of “an insured.” The policy also contains

a severability clause that states “this insurance applies separately to each insured.”

Safeco denied both Schwartzes a defense. Minkler obtained a default judgment

against Betty and an assignment of her rights against Safeco in exchange for a




      1
       Because the parties are familiar with the facts we repeat them here only as
necessary to explain our decision.

                                           2
covenant not to execute the judgment. Minkler then filed the instant action against

Safeco.

      The district court dismissed Minkler’s claims based on its legal conclusion

that the severability clause did not make the intentional acts exclusion ambiguous

as to whether David’s intentional acts barred coverage for Betty’s negligence.

Because the intentional acts exclusion applied, Safeco could not be liable.

      California law on this issue was not clear, so we certified the following

question to the California Supreme Court: “Where a contract of liability insurance

covering multiple insureds contains a severability-of-interests clause in the

‘Conditions’ section of the policy, does an exclusion barring coverage for injuries

arising out of the intentional acts of ‘an insured’ bar coverage for claims that one

insured negligently failed to prevent the intentional acts of another insured?”

Minkler v. Safeco Ins. Co., 561 F.3d 1033, 1035 (9th Cir. 2009).2

      In an opinion filed on June 17, 2010, the California Supreme Court

answered this question “no.” Minkler v. Safeco Ins. Co. of Amer., 232 P.3d 612,

620 (Cal. 2010). The California Supreme Court held “in light of the severability

clause, Betty would reasonably have expected Safeco’s policies . . . to cover her



      2
       We vacated submission pending the California Supreme Court’s decision.
The case is resubmitted as of the date of the filing of this memorandum disposition.

                                           3
separately for her independent acts and omissions causing . . . injury or damage, so

long as her conduct did not fall within the policies’ intentional acts exclusion, even

if the acts of another insured contributing to the same injury or damage were

intentional.” Id. (italics omitted). Thus Betty had “an objectively reasonable

expectation that the policies would cover her so long as her own conduct did not

fall within the intentional acts exclusion.” Id. at 626. Because Betty was only

negligent, her own conduct did not fall within the intentional acts exclusion, and

she was entitled to coverage. As Betty’s assignee, Minkler inherited Betty’s rights

under the insurance policy.

      Therefore, the district court erred when it held that Safeco could not be

liable and granted Safeco’s Rule 12(b)(6) motion to dismiss. We reverse the

district court’s decision and remand for further proceedings.

      REVERSED and REMANDED.




                                           4
