                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 16 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RYAN NELSON, a single man,                       No. 13-17237

              Plaintiff-counter-defendant -      D.C. No. 2:12-cv-01620-SMM
              Appellant,

  v.                                             MEMORANDUM*

NAVIGATOR INSURANCE
COMPANY, a foreign corporation;
NIC INSURANCE COMPANY,
a foreign corporation,

              Defendants-counter-claimants
              - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
              Stephen M. McNamee, Senior District Judge, Presiding

                    Argued and Submitted December 10, 2015
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: CLIFTON and OWENS, Circuit Judges and MOSKOWITZ,** Chief
District Judge.

      Plaintiff Ryan Nelson appeals the district court’s grant of summary

judgment in favor of Defendants Navigators Insurance Company and NIC

Insurance Company. We affirm.

      Ikon’s commercial general liability policy limited coverage to claims arising

out of damage to tangible property. On appeal, Nelson has not challenged the

district court’s holding that Ikon’s insurers had no duty to defend Ikon under the

text of the policy.

      Nelson argues that even if Ikon was not entitled to coverage under the policy

terms, Arizona’s reasonable expectations doctrine entitled Ikon to coverage. In

order for the reasonable expectations doctrine to apply, the facts of the case must

be sufficiently similar to one of four narrow situations listed in Gordinier v. Aetna

Casualty & Surety Co., 742 P.2d 277, 283-84 (Ariz. 1987). Nelson argues that

each situation is applicable here.

      The first Gordinier situation arises when a reasonably intelligent consumer

would not be able to understand the contract term even if he or she were to check

on his or her rights. Id. at 283. Ikon was not entitled to coverage under this

        **
              The Honorable Barry Ted Moskowitz, Chief District Judge for the
U.S. District Court for the Southern District of California, sitting by designation.

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situation because Defendants’ denial of coverage was predicated on the distinction

between tangible and intangible property, a distinction that should be clear and

unambiguous to a reasonably intelligent consumer. See Travelers Indem. Co. v.

State, 680 P.2d 1255, 1258 (Ariz. Ct. App. 1984) (“[T]he term ‘tangible property’

is not ambiguous and clearly excludes choses in action[.]”).

      The second Gordinier situation arises when the insured lacks full and

adequate notice of the term in question, and the term is either unusual or

unexpected, or one that emasculates coverage. Gordinier, 742 P.2d at 284. Nelson

failed to show that the term defining property as tangible property was unusual or

unexpected, or one that emasculated apparent coverage. Id.

      The third and fourth Gordinier situations arise when some activity

“reasonably attributable to the insurer” created either an “objective impression of

coverage” on the part of the insured or would have created such an impression on

the part of a reasonable insured. Id. Nelson failed to produce evidence of any

specific conduct on the part of Defendants that led or should have led Ikon or its

agents to believe that the insurance policies covered claims arising out of damage

to intangible property. Moreover, Kara Poole’s deposition testimony supported the

district court’s finding that Defendants took no action to induce Poole to believe

that the policies provided coverage for spoliation claims. The third and fourth


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Gordinier situations therefore did not entitle Ikon to coverage in the underlying

state court action.

      AFFIRMED.




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