                                                                             FILED
                           NOT FOR PUBLICATION                               APR 06 2012

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



                           FOR THE NINTH CIRCUIT


KNOWLEDGE LEARNING                              No. 11-35160
CORPORATION, a foreign business
corporation; KINDERCARE LEARNING                D.C. No. 3:10-cv-00188-ST
CENTERS, INC., a foreign business
corporation,
                                                MEMORANDUM*
             Plaintiffs - Appellees,

       v.

NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH,
PENNSYLVANIA, a foreign insurance
company,

             Defendant - Appellant,

DISCOVER PROPERTY & CASUALTY
INSURANCE COMPANY, a foreign
insurance company,

             Defendant - Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                     Garr M. King, District Judge, Presiding




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted March 6, 2012
                                Portland, Oregon

Before: W. FLETCHER, FISHER and BYBEE, Circuit Judges.

      Umbrella insurer National Union Fire Insurance Company (National Union)

appeals the district court’s order granting summary judgment to (a) primary insurer

Discover Property & Casualty Insurance Company (Discover) and (b) insured

Knowledge Learning Corporation and KinderCare Learning Centers, Inc.

(collectively “KLC”). National Union argues that the district court erred when it

concluded that six separate lawsuits filed against KLC, each involving allegations

of abuse against a different victim, constitute a single “occurrence” under

Discover’s policy. We have jurisdiction under 28 U.S.C. §§ 1291 and 1294, and

we affirm.

      The disputed policy language reads:

             [1] “Occurrence” means an act or threatened act of abuse or
             molestation. [2] All “bodily injury” and “personal and
             advertising injury” arising out of the acts of abuse or
             molestation by one person or two or more persons acting
             together toward any one person will be deemed a single
             “occurrence.” [3] A series of related acts of abuse or
             molestation will be treated as a single “occurrence.”

(Emphasis added.) National Union contends that the phrase a “series of related

acts of abuse” refers only to related acts involving a single victim, such that the



                                           2
lawsuits at issue here – involving six different victims – constitute separate

occurrences. KLC maintains that a “series of related acts of abuse” can involve

multiple victims, such that the lawsuits at issue here involve a single occurrence.

We agree with KLC.

      1.     Plain Meaning. We begin by looking to the plain meaning of the

phrase. See Holloway v. Republic Indem. Co. of Am., 147 P.3d 329, 333-34 (Or.

2006) (citing Groshong v. Mut. of Enumclaw Ins. Co., 985 P.2d 1284, 1287 (Or.

1999)). A “series of related acts of abuse” could cover this situation where the acts

of abuse took place during a reasonably short time frame, at the same daycare

facility, in the same classroom, by the same two people and involved similarly

improper abusive conduct. We cannot, however, discern from the dictionary

definitions of “series” and “related” alone whether the policy intends to collapse

abuse against multiple victims into a single occurrence.

      2.     Contextual Meaning. We therefore “examine the phrase in light of the

particular context in which that [phrase] is used in the policy and the broader

context of the policy as a whole.” Holloway, 147 P.3d at 334 (alteration in

original) (internal quotation marks and citation omitted). National Union reads the

third sentence as applying only to related acts of abuse against a single victim.

There are two problems with that reading. First, we would have to read language –

                                          3
the words “against a single victim” – into the policy. See Or. Rev. Stat. § 42.230

(the court may not insert words into a contract); see also Holloway, 147 P.3d at

334. Second, National Union’s reading would make the third sentence redundant.

Sentence two already provides that “acts of abuse” against a single victim, whether

related or not, “will be deemed a single ‘occurrence.’” If sentence three does

nothing more than provide that related acts of abuse against a single victim will be

treated as a single occurrence, it is unclear what purpose sentence three serves: a

“series of related acts of abuse” toward any one person in sentence three would

always be encompassed within the broader, unqualified “acts of abuse . . . toward

any one person” in sentence two. See, e.g., Hoffman Constr. Co. of Alaska v. Fred

S. James & Co. of Or., 836 P.2d 703, 707 (Or. 1992) (“We must assume that

parties to an insurance contract do not create meaningless provisions” and interpret

the policy “‘so that no part of it is ignored and effect can be given to every word

and phrase.’”) (quoting New Zealand Ins. v. Griffith Rubber, 526 P.2d 567, 569

(Or. 1974)). National Union has not offered any examples of situations in which




                                          4
its reading of sentence three would apply that would not also be encompassed by

sentence two.1

      By contrast, under KLC’s interpretation we would not have to read words

into the contract. Furthermore, although the second and third sentences may

overlap (for example, two perpetrators jointly engage in a series of related acts of

abuse against the same victim), there are scenarios where the second sentence

would apply and the third would not (one perpetrator abuses one victim in two

very different ways), and where the third sentence would apply and the second

would not (one perpetrator abuses multiple victims in a similar way). We thus

agree with the district court that the phrase a “series of related acts of abuse” refers

to related acts of abuse whether involving one or multiple victims. The district

court therefore properly granted summary judgment in favor of KLC and Discover.

      AFFIRMED.




      1
       Although sentence two is limited to “all ‘bodily injury’ and ‘personal and
advertising injury,’” these are the only types of injury covered by the endorsement.
Accordingly, sentences two and three cannot be distinguished as applying to
different types of injury.

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