                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 22 2013

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



                            FOR THE NINTH CIRCUIT


CENTURY SURETY COMPANY,                          No. 11-56694
an Ohio corporation,
                                                 D.C. No. 3:05-cv-01548-L-BGS
              Plaintiff-counter-
              defendant - Appellee,
                                                 MEMORANDUM*
  v.

350 W.A., LLC, a California limited
liability company,

              Defendant-counter-
              claimant - Appellant,

DAVID A. BLACKBURN,

              Counter-claimant -
              Appellant,

  and

JACQUELINE HELLEIS, individually
and doing business as Flagship Research,

              Defendant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                      for the Southern District of California
                 M. James Lorenz, Senior District Judge, Presiding

                       Argued and Submitted August 9, 2013
                               Pasadena, California

Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.

      Appellants David Blackburn and 350 W.A., LLC, appeal the district court’s

grant of summary judgment. We affirm.

      An insurance policy is properly rescinded when the insured makes material

misrepresentations when applying for insurance. See Cal. Ins. Code §§ 330, 331

(West 2005). Appellants made misrepresentations when applying for insurance

with Century by stating on their application form that they did not contemplate any

demolition exposure or structural additions when, in fact, they did. Contrary to

appellants’ argument, to “contemplate” means to consider the possibility of action;

it does not require firm and final decisions.

      Appellants’ misrepresentations were material. Misrepresentations are

material when the insurer would have evaluated the risk to be insured differently,

such as by denying the policy or charging different premiums, if the true facts had

been known. See Old Line Life Ins. Co. v. Superior Court, 229 Cal. App. 3d 1600,

1606 (1991). Century produced undisputed evidence demonstrating that it would



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have denied the policy, issued a different policy, or charged different premiums if

it had known the truth about the planned construction. Therefore, the district court

properly concluded that the insurance contract was rescinded.

      As the policy has been rescinded, appellants’ counterclaims fail as a matter

of law.

      AFFIRMED.




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