                                                                             FILED
                           NOT FOR PUBLICATION                                FEB 09 2011

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



                           FOR THE NINTH CIRCUIT


BRADLEY D. AUSMUS and                              Nos. 09-55831
ELIZABETH A. AUSMUS,                                    09-56137

       Plaintiffs-Appelants,                       D.C. No. 3:08-cv-2342-L-LSP

  v.                                               MEMORANDUM*

LEXINGTON INSURANCE COMPANY;
AMERICAN INTERNATIONAL GROUP,
INC. DOES 1-100, INCLUSIVE

       Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Southern District of California
                   M. James Lorenz, District Judge, Presiding

                     Argued and Submitted November 3, 2010
                              Pasadena, California

Before: GOODWIN and RAWLINSON, Circuit Judges, and ZOUHARY, District
Judge.**



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
      This is an insurance coverage dispute filed by Bradley and Elizabeth Ausmus

(the “Ausmuses”) against Lexington Insurance Company and American International

Group, Inc. (collectively “Lexington”). (AIG was the parent company of Lexington.)

The Ausmues are seeking insurance coverage for defective work performed by a

contractor, a Lexington insured. The district court dismissed the Complaint pursuant

to Federal Civil Rule 12(b)(6), finding the claims were barred by one of the policy

exclusions. A later Motion to Vacate Judgment was denied.

      The district court concluded the policy exclusion was (a) plain, clear and

conspicuous, and (b) the insurer was not required to provide its insured with advance

notice of the reduction in coverage. The district court also concluded that the

Ausmuses failed to raise their California common law argument in opposition to the

Motion to Dismiss, thereby waiving that argument in their later Motion to Vacate

Judgment.

      This court reviews de novo a district court’s grant of a Rule 12(b)(6) motion to

dismiss, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005), and the denial of a

motion under Rule 59(e) to alter or amend the judgment for an abuse of discretion, Ta

Chong Bank Ltd. v. Hitachi High Techs. Am., Inc., 610 F.3d 1063, 1066 (9th Cir.

2010) (citing McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003)).




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      After carefully reviewing the record, the applicable law, and the parties’ briefs,

we are convinced that the district court did not err in its conclusions. As the district

court’s opinions carefully and correctly set out the law governing the issues raised,

and clearly articulate the reasons underlying its decisions, issuance of a full written

opinion by this Court would serve no useful purpose. Accordingly, for the reasons

stated in the district court’s opinions dated April 22, 2009 and July 15, 2009,

respectively, we AFFIRM.




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