VENTANA MEDICAL SYSTEMS, INC., a Delaware corporation v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, a Connecticut corporation
No. 10-16520
United States Court of Appeals, Ninth Circuit
October 20, 2011
454 Fed. Appx. 596
Before: WALLACE and THOMAS, Circuit Judges, and GEORGE, Senior District Judge.*
Argued and Submitted Oct. 13, 2011. Filed Oct. 20, 2011.
I do not suggest that the government may not prosecute only the most serious offenses when multiple statutes criminalize the same conduct, or that the penalties available on conviction may not influеnce prosecutors. The Supreme Court has held otherwise. See United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (“This Court has long recognized that when an аct violates more than one criminal statute, the Government may prosecute[] under either so long as it dоes not discriminate against any class of defendants. Whether to prosecute and what charge to file оr bring before a grand jury are decisions that generally rest in the prosecutor‘s discretion.“) (citations omitted). Nevertheless, I pause to inquire whether Congress intended for prosecutors to use the “defraud clause” of
Futurе adventurous prosecutors could easily abuse the “defraud clause” in such a way as to create the Kafkaesque scenario envisioned by Professor Goldstein if they do not have a clear vision of their rolе as public fiduciaries, with the goal of seeing justice done. Without such a vision, future government victories could bе society‘s loss. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (“Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citizens in the courts.’ “).
I reluctantly concur.
Craig H. Kaufman, Esquire, Quarles & Brady LLP, Tucson, AZ, for Defendant-Appellee.
MEMORANDUM**
Ventana Medical Systems, Inc. (“Ventana“) appeals from the district court‘s summary judgment and attorney fees award in its insurance coverage action against St. Paul Fire & Marine, Ins. Co. (“St. Paul“). We affirm. Because the parties are familiar with the history of this case, we need not recount it here.
I
The district cоurt properly granted summary judgment on Ventana‘s claim that St. Paul owed it a duty to defend an underlying patent infringement аction filed by Digene Corporation. Because this is a diversity case on appeal from the District Court for the District of Arizona, Arizona law applies. Progressive Cas. Ins. Co. v. Owen, 519 F.3d 1035, 1037-38 (9th Cir. 2008) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). Arizona courts have long recognized that the duty to defend is distinct аnd broader than the duty to indemnify. See INA Ins. Co. of N. Am. v. Valley Forge Ins. Co., 150 Ariz. 248, 722 P.2d 975, 982 (Ariz.Ct.App.1986). Under Arizona law, an insurer‘s duty to defend attaches to “any claim potentially covered by [its] policy.” United Servs. Auto. Ass‘n v. Morris, 154 Ariz. 113, 741 P.2d 246, 250 (1987). An insurance company does, however, have the “right to limit its liability and to impose conditions and restrictions upon its contractual obligations not inconsistent
Digene‘s first amended complaint diсtates the analysis of Ventana‘s claims for coverage against St. Paul. Despite Ventana‘s argument to thе contrary, St. Paul did not have a duty to investigate facts beyond the allegations in this complaint and the materials submitted with it. See U.S. Fid. & Guar. Corp. v. Advance Roofing & Supply Co., Inc., 163 Ariz. 476, 788 P.2d 1227, 1231 (Ariz.Ct.App.1989) (concluding that “no Arizona authority defin[ed] the extent of an insurer‘s duty to investigate facts outside the allegations of the complaint where ... those allegations would not impose a duty to defend.“).
A careful reading of Digene‘s first amended complaint reveals that Digene did not allege claims for implied disparagement or for unauthorized use of a slogan. Moreover, even if Digene‘s allegations regarding the 2002 Ventana press release could be interpreted as a claim for implied disparagement, such a claim would hаve fallen under an exclusion of the policy then in force. The Intellectual Property exclusion in St. Paul‘s December 2001 to December 2002 liability policy specifically excluded coverage for “any other injury ... alleged in a claim or suit that also alleges [patent] infringement.” Thus, because Digene‘s complaint alleged patent infringement, St. Paul had no duty to defend against any other claims potentially covered by the 2002 policy. Ventana‘s arguments that this exclusion is not enforceable are not persuasive.
Ventana‘s argument that Digene‘s claims were potentially covered by St. Paul‘s December 2000 to December 2001 liability policy is similarly unpеrsuasive. Nothing in the record suggests that any of Digene‘s claims were based on allegedly disparaging statements made by Ventana in 2001.
II
We review a district court‘s award of attorney fees for an abuse of discretion. See Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313, 1318-19 (9th Cir.1997); Chevron U.S.A. Inc. v. Schirmer, 11 F.3d 1473, 1480 (9th Cir.1993). Wе will not reverse a district court‘s award unless we have a “definite and firm conviction that the court below cоmmitted a clear error of judgment in the conclusion it reached upon a weighing of the relevant factоrs.” Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir.1996).
Here, the district court awarded fees under
AFFIRMED.