                                                                           FILED
                               NOT FOR PUBLICATION                           NOV 17 2010

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




                           FOR THE NINTH CIRCUIT


WESTPORT INSURANCE                     )      No. 10-35075
CORPORATION,                           )
                                       )      D.C. No. 2:08-CV-00221-RHW
      Plaintiff – Appellant,           )
                                       )      MEMORANDUM *
      v.                               )
                                       )
MARKHAM GROUP INC. PS;                 )
MARK KAMITOMO; RACHEL                  )
NAIDU, individually and as             )
personal representative of the         )
Estate of James L. Overcash,           )
                                       )
      Defendants – Appellees.          )
                                       )

                  Appeal from the United States District Court
                      for the Eastern District of Washington
                Robert H. Whaley, Senior District Judge, Presiding

                     Argued and Submitted November 3, 2010
                              Seattle, Washington

Before:      B. FLETCHER, FERNANDEZ, and BYBEE, Circuit Judges.

      Westport Insurance Corporation appeals the district court’s grant of

summary judgment and attorney’s fees against it and in favor of the Markham


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Group, Inc., P.S. law firm and one of its members, Mark Kamitomo (collectively

“insureds”) and one of their former clients, Rachel Naidu. We have jurisdiction 1

and we reverse and remand.

      (1)      Insureds had a claims made and reported policy (hereafter “claims

made policy”) with Westport effective July 1, 2007, which, inter alia, provided an

exclusion for “any act, error, omission, circumstance or PERSONAL INJURY

occurring prior to the effective date of this POLICY if any INSURED at the

effective date knew or could have reasonably foreseen that such act, error,

omission, circumstance or PERSONAL INJURY might be the basis of a CLAIM.”

Prior to that date, the insureds knew that, due to errors on their part, a client’s case

had been dismissed and could not be refiled.2 Indeed, they had been sanctioned at

that time for filing a baseless claim without proper investigation. They assert that

the exclusion does not apply because its language regarding reporting if their

actions “might be the basis” of a claim was ambiguous. We disagree. Under the

law of Washington, clear and unambiguous policy language is enforced as written,

and a court “may not modify it or create ambiguity where none exists.” Am. Nat’l.


      1
          28 U.S.C. § 1291.
      2
        That is, it could not be refiled unless the trial court’s judgment was
overturned on appeal. It was not; in fact, the insureds were sanctioned for bringing
a frivolous appeal.

                                            2
Fire Ins. Co. v. B & L Trucking & Constr. Co., Inc., 951 P.2d 250, 256 (Wash.

1998); see also Assurance Co. of Am. v. Wall & Assocs. LLC of Olympia, 379

F.3d 557, 560 (9th Cir. 2004); Greenfield v. W. Heritage Ins. Co., 226 P.3d 199,

202 (Wash. Ct. App. 2010). Here, any reasonable insured would have recognized

that the errors in question “might” result in a claim. See Tewell, Thorpe &

Findlay, Inc., P.S. v. Cont’l Cas. Co., 825 P.2d 724, 726–28 (Wash. Ct. App.

1992); see also Allstate Ins. Co. v. Peasley, 932 P.2d 1244, 1249 (Wash. 1997). In

short, the district court erred when it declared that the policy was ambiguous and,

in effect, amended it to create coverage.

      (2)    The insureds then assert that an earlier claims made policy, with an

effective date of July 1, 2006, should provide coverage even though they violated

its terms by not giving notice at the proper time. They argue that the notice-

prejudice rule should apply. However, while that rule is applied to occurrence

policies, claims made policies are fundamentally different in character. See Am.

Cont’l Ins. Co. v. Steen, 91 P.3d 864, 867 (Wash. 2004). They, by their very

nature, require reporting “during the policy period.” Schwindt v. Commonwealth

Ins. Co., 997 P.2d 353, 356 n.3 (Wash. 2000). As the Washington Court of

Appeals has stated in rejecting application of the notice-prejudice rule to a claims

made policy, its application “would . . . provide coverage the insurer did not intend


                                            3
to provide and the insured did not contract to receive.” Safeco Title Ins. Co. v.

Gannon, 774 P.2d 30, 35 (Wash. Ct. App. 1989). In fact, it “‘[would negate] the

inherent difference between’” occurrence and claims made policies, and would

rewrite the insurance contract. Id.; see also Manufactured Hous. Cmtys. of Wash.

v. St. Paul Mercury Ins. Co., 660 F. Supp. 2d 1208, 1214–15 (W.D. Wash. 2009).

We are satisfied that the Washington Supreme Court would agree with that

reasoning. Thus, again, we must disagree with the district court.3

      In short, judgment should have been and should now be entered in favor of

Westport.

      REVERSED and REMANDED.




      3
      Because of our resolution of the merits, the attorney’s fee award against
Westport must also fall. Cf. Smith v. Ohio Cas. Ins. Co., 678 P.2d 829, 831
(Wash. Ct. App. 1984).

                                          4
