                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 24 2012

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




                            FOR THE NINTH CIRCUIT



CATLIN UNDERWRITING AGENCIES                     No. 10-56342
LIMITED,
                                                 D.C. No. 3:08-cv-00173-WQH-
              Plaintiff - Appellee,              JMA

  v.
                                                 MEMORANDUM *
SAN DIEGO REFRIGERATED
SERVICES, INC., DBA Harborside, DBA
San Diego Terminals; PLA-ART
INTERNATIONAL, DBA San Diego Cold
Storage,

              Defendants - Appellants,

  and

MIGUEL CUEVA, AKA Miguel Tamayo;
MARCUS FOODS, INC.; SERGIO
HERNANDEZ; DOES 1 THROUGH 100,
INCLUSIVE,

              Defendants.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, 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 February 14, 2012
                              Pasadena, California


Before:        FARRIS and W. FLETCHER, Circuit Judges, and HELLERSTEIN,
               Senior District Judge.**

      This appeal is an insurance coverage dispute between Plaintiff Catlin

Underwriting Agencies Limited (“Catlin”) and Defendants San Diego Refrigerated

Services, Inc., and Pla-Art International (“Pla-Art”). Catlin, a commercial

insurance company in London, insured Pla-Art’s cold storage warehouse facilities

in San Diego and National City, California. At issue is whether Catlin had a duty

to defend an underlying state court lawsuit filed against Pla-Art by one of its

customers. The district court granted summary judgment in Catlin’s favor,

dismissed Pla-Art’s counterclaims with prejudice, and denied Pla-Art’s Rule 59(e)

motion to alter or amend. We affirm.

      We review de novo a district court’s grant of summary judgment on

cross-motions for summary judgment, Travelers Prop. Cas. Co. of Am. v.

ConocoPhillips Co., 546 F.3d 1142, 1145 (9th Cir. 2008), and dismissal of

counterclaims based on questions of law, see Qwest Corp v. City of Surprise, 434

F.3d 1176, 1180 (9th Cir. 2006). The denial of a Rule 59(e) motion to alter or


          **
             The Honorable Alvin K. Hellerstein, Senior United States District
Judge for the Southern District of New York, sitting by designation.

                                          2
amend the judgment is reviewed for abuse of discretion. Ta Chong Bank Ltd. v.

Hitachi High Technologies America, Inc., 610 F.3d 1063, 1066 (9th Cir. 2010).

      California law governs this insurance policy dispute brought in a diversity

action. Hyundai Motor America v. National Union Fire Ins. Co., 600 F.3d 1092,

1097 (9th Cir. 2010). “Determination of the duty to defend depends, in the first

instance, on a comparison between the allegations of the complaint and the terms

of the policy.” Scottsdale Ins. Co. v. MV Transp., 36 Cal. 4th 643, 654 (2005).

The insurer’s duty to defend turns on the facts alleged in the underlying complaint

or otherwise known at the time of tender, rather than “the technical legal cause[s]

of action” pled in the suit. Swain v. Cal. Cas. Ins. Co., 99 Cal. App. 4th 1, 8

(2002).

      Here, the underlying complaint alleged that Pla-Art “agreed, conspired,

planned and engaged” in the ongoing, unauthorized release and sale of goods to

third parties, and that this conduct constituted a breach of contract and conversion.

The insurance policy imposed on Catlin a duty to defend and indemnify Pla-Art

against lawsuits alleging property damage resulting from an “occurrence” or

“accident.” The district court concluded that Catlin had no duty to defend because

the underlying complaint alleged only deliberate and intentional wrongdoing with




                                           3
foreseeable consequences, rather than an “occurrence” or “accident” within the

meaning of the policy. We agree.

      Because the district court granted summary judgment in Catlin’s favor, it

properly dismissed with prejudice Pla-Art’s counterclaims that were logically

foreclosed on their merits. Nor did the district court abuse its discretion in denying

Pla-Art’s motion to alter or amend.

      AFFIRMED.




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