                              NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 8 2016
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

    IMPAC MORTGAGE HOLDINGS, INC.;               No. 14-55071
    IMPAC FUNDING CORPORATION;
    IMPAC SECURED ASSETS CORP.; IMH              D.C. No. 8:11-cv-01845-JLS-JCG
    ASSETS CORP; RICHARD J. JOHNSON;
    JOSEPH R. TOMKINSON,
                                                 MEMORANDUM *
            Plaintiffs - Appellants,

      v.

    HOUSTON CASUALTY COMPANY,

            Defendant - Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                           Submitted February 4, 2016**
                              Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges and RICE,*** Chief District
Judge.


*
      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).
***
      The Honorable Thomas O. Rice, Chief United States District Judge for the
Eastern District of Washington, sitting by designation.
      In this diversity action, Impac Mortgage Holdings, Inc., its subsidiaries, and

certain of its employees (“Impac”), alleges that two insurance companies, Houston

Casualty Company (“Houston”) and Certain Underwriters at Lloyd’s (“Lloyd’s”),

wrongfully denied coverage for certain losses incurred in connection with three

underlying actions. The district court granted summary judgment for Houston and

against Lloyd’s. Impac appeals the grant of summary judgment to Houston. We

affirm.

      1. Impac bought a directors’ and officers’ (“D&O”) insurance policy from

Houston covering losses “arising out of, based upon or attributable to the purchase

or sale of . . . any securities of [Impac].” The three underlying actions asserted

claims arising out of Impac’s sale of mortgage-backed securities.

      2. Impac argues that, because “of” denotes connection, the phrase “securities

of” in the D&O policy includes any securities to which it has a connection.

However, the phrase “securities of,” like “stock of,” is ordinarily understood as

meaning “shares in.” That is how an adjacent clause in the Houston policy uses the

phrase, expressly covering claims “brought by a security holder of an Organization

with respect to such security holder’s interest in securities of such Organization.”

Impac’s sole contrary examples, from 17 C.F.R. §§ 230.191(a) & 240.3b-19(a),

which are SEC regulations, merely demonstrate that “securities of” can mean




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“securities issued by” if the surrounding language so indicates; but here, the policy

contains no such indication.

      3. Impac’s interpretation flies in the face of the California Supreme Court’s

warning not to elevate possible dictionary meanings over context in interpreting

language in insurance policies. MacKinnon v. Truck Ins. Exch., 73 P.3d 1205, 1214

(Cal. 2003), as modified on denial of reh’g (Sept. 17, 2003); see also Olympic Club

v. Those Interested Underwriters at Lloyd’s London, 991 F.2d 497, 500 (9th Cir.

1993) (“The policy, after all, is a Directors’ and Officers’ liability policy with an

endorsement protecting the Club; it is not an expanded comprehensive liability

policy insuring the Club against liability for everything it does.”). The record does

not support Impac’s claim that it expected its D&O policy to cover professional

errors; indeed, it purchased what otherwise would have been duplicative Errors and

Omissions (“E&O”) coverage from Lloyd’s.

   4. Coverage is also barred by the Houston policy’s E&O Exclusion, which

excludes claims “arising out of, based upon or attributable to any Insured’s or

Organization’s performance of (or failure to perform) any professional services, or

any act, error or omission relating thereto.” Impac urges on appeal (contrary to its

successful argument against Lloyd’s below) that the underlying claims do not arise

out of its performance of professional services, because the claims allege liability

for approving offering documents and SEC filings, which are acts required by


                                             3
statute.   But, drafting such documents, which describe complicated financial

products, plainly requires professional skill, whether or not the duty to file the

documents is imposed by statute.

       AFFIRMED.




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