Healy Tibbitts Constr. Co., a Corp. v. Ins. Co. of North Am., a Corp., 679 F.2d 803 (9th Cir. 1982). · Go Syfert
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Healy Tibbitts Constr. Co., a Corp. v. Ins. Co. of North Am., a Corp., 679 F.2d 803 (9th Cir. 1982). Cases Citing This Book View Copy Cite
52 citation events (24 in the last 25 years) across 21 distinct courts.
Strongest positive: U.S. Equal Employment Opportunity Commission v. Mariscos El Puerto, Inc. (nvd, 2025-08-27)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 33 distinct citers. How cited ↗
cited Cited as authority (rule) U.S. Equal Employment Opportunity Commission v. Mariscos El Puerto, Inc.
D. Nev. · 2025 · confidence medium
However, the Ninth Circuit in Healy Tibbitts Construction Co. v. Insurance Co. of 9 North America liberalized this pleading requirement. 679 F.2d 803, 804 (9th Cir. 1982).
cited Cited as authority (rule) U.S. Equal Employment Opportunity Commission v. Mariscos El Puerto, Inc.
D. Nev. · 2025 · confidence medium
However, the Ninth Circuit in Healy Tibbitts Construction Co. v. Insurance Co. of 9 North America liberalized this pleading requirement. 679 F.2d 803, 804 (9th Cir. 1982).
cited Cited as authority (rule) ProDox, LLC v. Professional Document Services, Inc.
D. Nev. · 2024 · confidence medium
Co. of N.A., 679 F.2d 803, 804 (9th Cir. 1982). 31 Fed.
discussed Cited as authority (rule) Architectural Design Contract v. Builder Services Group, Inc.
9th Cir. · 2023 · confidence medium
Co. of N. Am., 679 F.2d 803, 804 (9th Cir. 1982) (per curiam) (“While state law defines the nature of the defenses, the Federal Rules of Civil Procedure provide the manner and time in 3 which defenses are raised and when waiver occurs.”).
discussed Cited as authority (rule) Pacesetter Consulting LLC v. Kapreilian (2×)
D. Ariz. · 2021 · confidence medium
Co. of N. Am., 679 F.2d 803, 804 (9th Cir. 1982). 12 b.
cited Cited as authority (rule) Bajwa v. United States Life Insurance Company
E.D. Cal. · 2021 · confidence medium
Co. of N. Am., 679 F.2d 803, 804 (9th Cir. 1982).
discussed Cited as authority (rule) Gomez v. J. Jacobo Farm Labor Contractor, Inc.
E.D. Cal. · 2019 · confidence medium
Co. of N. Am., 679 F.2d 803, 804 (9th Cir.1982) 16 (“While state law defines the nature of the defenses, the Federal Rules of Civil Procedure provide 17 the manner and time in which defenses are raised and when waiver occurs.”). 18 Based on the information before it, the Court has doubts that Plaintiffs complied with 19 PAGA’s administrative requirements.
cited Cited as authority (rule) Tug Construction LLC v. Harley Marine Financing LLC
W.D. Wash. · 2019 · confidence medium
Co. of North America, 16 679 F.2d 803, 804 (9th Cir.1982) (similar language).
cited Cited as authority (rule) Poe v. Cook
D. Or. · 2019 · confidence medium
Co. of N. Am., 679 F.2d 803, 804 (9th Cir. 1982).
cited Cited as authority (rule) Moofly Productions, LLC v. Sandra Favila
9th Cir. · 2017 · confidence medium
Co. of N. Am, 679 F.2d 803, 804 (9th Cir. 1982).
discussed Cited as authority (rule) Rosen v. Masterpiece Marketing Group, LLC
C.D. Cal. · 2016 · confidence medium
See e.g., Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1023 (9th Cir. 2010) ("Although Rule 8 requires affirmative defenses to be included in responsive pleadings, absent prejudice to the plaintiff, the district court has discretion to allow a defendant to plead an affirmative defense in a subsequent motion.”); Healy Tibbitts Const. Co. v. Insurance Co. of North America, 679 F.2d 803, 804 (9th Cir. 1982) ("The defendant should be permitted to raise its policy exclusions defense in a motion for summary judgment, whether or not it was specifically pleaded as an affirmative defense, at least w…
cited Cited as authority (rule) Hernandez v. Creative Concepts, Inc.
D. Nev. · 2013 · confidence medium
Co. of N. Am., 679 F.2d 803, 804 (9th Cir.1982) (per curiam).
cited Cited as authority (rule) Mullaney v. Hilton Hotels Corp.
D. Haw. · 2009 · confidence medium
Co. of N. Am., 679 F.2d 803, 804 (9th Cir.1982).
discussed Cited as authority (rule) Intamin, Ltd. v. Magnetar Technologies Corp.
C.D. Cal. · 2009 · confidence medium
Co. of N. Am., 679 F.2d 803, 804 (9th Cir.1982) (finding no prejudice when the plaintiff first raised an affirmative defense of insurance policy exclusion in a motion for summary judgment because both parties were aware of the exclusion).
cited Cited as authority (rule) Christopher Owens Cynthia Hutchins,plaintiffs-Appellants v. Kaiser Foundation Health Plan,inc., a California Corporation,defendant-Appellee
9th Cir. · 2001 · confidence medium
Co. of North America, 679 F.2d 803, 804 (9th Cir.1982) (similar language).
cited Cited as authority (rule) American Simmental Ass'n v. Coregis Insurance
D. Neb. · 2000 · confidence medium
Co. v. Insurance Co. of North America, 679 F.2d 803, 804 (9th Cir.1982).
discussed Cited as authority (rule) MONT BELVIEU SQUARE v. City of Mont Belvieu, Tex.
S.D. Tex. · 1998 · confidence medium
Co. of N. Am., 679 F.2d 803, 804 (9th Cir.1982) (allowing defendant insurance company to plead a policy exclusion defense in a motion for summary judgment “whether or not it was specifically pleaded as an affirmative defense, at least where no prejudice results to the plaintiff’).
cited Cited as authority (rule) Van Pier v. Long Island Savings Bank, FSB
S.D.N.Y. · 1998 · confidence medium
Co. v. Insurance Co. of N. Am., 679 F.2d 803, 804 (9th Cir.1982); Devito v. Pension Plan of Local 819 I.B.T.
cited Cited as authority (rule) DeVito Ex Rel. Estate of DeVito v. Pension Plan of Local 819 I.B.T. Pension Fund
S.D.N.Y. · 1997 · confidence medium
Co. of N. Am., 679 F.2d 803, 804 (9th Cir.1982); United States v. Krieger, 773 F.Supp. 580, 583 (S.D.N.Y.1991); MCI Telecommunications Corp. v. Ameri-Tel.
discussed Cited as authority (rule) Richard K. Ehrlich v. State Farm Fire and Casualty Company Travelers Insurance Companies
9th Cir. · 1996 · confidence medium
Co. v. Insurance Co. of N. Am., 679 F.2d 803, 804 (9th Cir.1982), this court held that insurance policy exclusions need not be pled as affirmative defenses 2 Ehrlich raises this issue for the first time on appeal.
cited Cited as authority (rule) Connie K. HAN, Plaintiff-Appellant, v. MOBIL OIL CORPORATION, a New York Corporation, Defendant-Appellee
9th Cir. · 1995 · confidence medium
Healy Tibbitts Construction Co. v. Insurance Co. of North America, 679 F.2d 803, 804 (9th Cir.1982); see also Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir.1984).
cited Cited as authority (rule) Gamble v. Northstore Partnership
Alaska · 1995 · confidence medium
Co. v. Insurance Co. of N. Am., 679 F.2d 803, 804 (9th Cir.1982).
cited Cited as authority (rule) Allstate Insurance v. Salahutdin
N.D. Cal. · 1992 · confidence medium
Co. of North America, 679 F.2d 803, 808 (9th Cir.1982).
cited Cited as authority (rule) Allstate Ins. Co. v. Salahutdin
N.D. Cal. · 1992 · confidence medium
Co. of North America, 679 F.2d 803, 808 (9th Cir.1982).
cited Cited as authority (rule) Hydro Systems, Inc. v. Continental Insurance Company, a New Jersey Corporation
9th Cir. · 1991 · confidence medium
Co. of North America, 679 F.2d 803, 804-805 (9th Cir.1982) (“There is no merit to the [insured’s] allegations of bad faith.
cited Cited as authority (rule) Equal Employment Opportunity Commission v. Peterson, Howell & Heather, Inc.
D. Maryland · 1989 · confidence medium
Healy Tibbitts Construction Co. v. Insurance Co. of North America, 679 F.2d 803, 804 (9th Cir.1982); Bartlett v. Fruehauf Corp., 642 F.Supp. 954, 958 (W.D.N.C.1986).
discussed Cited as authority (rule) Glen Hanson, a Minor, by and Through His Guardian Ad Litem, Catherine Hanson, and Duane Hanson v. The Prudential Insurance Company of America
9th Cir. · 1986 · confidence medium
See Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1338 (9th Cir.1984) (settlement agreement reviewed de novo); In re U.S. Financial Securities Litigation, 729 F.2d 628, 631-32 (9th Cir. 1984) (same); Healy Tibbits Construction Company v. Insurance Company of North America, 679 F.2d 803, 804 (9th Cir.1982) (insurance policy exclusionary clause reviewed de novo).
discussed Cited as authority (rule) Glen Hanson, a Minor, by and Through His Guardian Ad Litem, Catherine Hanson, and Duane Hanson v. The Prudential Insurance Company of America
9th Cir. · 1985 · confidence medium
See Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1338 (9th Cir.1984) (settlement agreement reviewed de novo); In re U.S. Financial Securities Litigation, 729 F.2d 628, 631-32 (9th Cir. 1984) (same); Healy Tibbitts Construction Company v. Insurance Company of North America, 679 F.2d 803, 804 (9th Cir.1982) (insurance policy exclusionary clause reviewed de novo).
cited Cited as authority (rule) Wallace Perry, Trustee v. Boyd James O'donnell, K.D. Realty Fund No. 1, Wallace Perry, as Trustee of the Estates of Boyd James O'DOnnell and Joan O'donnell, Bankrupts v. Boyd James O'donnell, Et Ux.
9th Cir. · 1985 · confidence medium
Healy Tibbitts Construction Co. v. Insurance Co. of North America, 679 F.2d 803, 804 (9th Cir.1982) (per curiam).
cited Cited as authority (rule) Perry v. O'Donnell
9th Cir. · 1984 · confidence medium
Healy Tibbitts Construction Co. v. Insurance Co. of North America, 679 F.2d 803, 804 (9th Cir.1982) (per curiam).
discussed Cited as authority (rule) A.D.E. Inc., D/B/A Auto Dealers Exchange v. Louis Joliet Bank and Trust Company, an Illinois Banking Corporation
7th Cir. · 1984 · confidence medium
See Fed.R.Civ.P. 15(a) (“leave [to amend pleading] shall be freely given when justice so requires”); Healy Tibbits Construction Co. v. Insurance Co. of North America, 679 F.2d 803, 804 (9th Cir.1982) (per curiam).
discussed Cited "see" Panah v. State of California Dept. of Corrections and Rehabilitation
N.D. Cal. · 2020 · signal: see · confidence high
See Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984) 10 (citing Healy Tibbits Construction Co. v. Insurance Co. of North America, 679 F.2d 803 11 (9th Cir. 1982) (holding defendant’s failure to raise the statute of limitations defense in 12 initial pleading did not preclude him from making a motion for summary judgment based 13 on that defense)).
discussed Cited "see" Hydro Systems, Inc. v. Continental Insurance
C.D. Cal. · 1989 · signal: see · confidence high
See Healy Tibbitts Construction Co. v. Insurance Co. of North America, 679 F.2d 803, 804-05 (9th Cir.1982) (affirming summary judgment in favor of insurer on issue of bad faith where claim was excluded from coverage).
Retrieving the full opinion text from the archive…
HEALY TIBBITTS CONSTRUCTION CO., a Corporation, Plaintiff-Appellant,
v.
INSURANCE COMPANY OF NORTH AMERICA, a Corporation, Defendant-Appellee
80-4565.
Court of Appeals for the Ninth Circuit.
Jun 18, 1982.
679 F.2d 803
1982 U.S. App. LEXIS 18219
Stephen McReavy and Linda E. Klamm, Hall, Henry, Oliver & McReavy, San Francisco, Cal., for plaintiff-appellant., Thomas Wait, Barfield, Barfield, Dryden, Ruane, San Francisco, Cal., for defendantappellee.
Goodwin, Skopil, Far-Ris.
Cited by 43 opinions  |  Published
PER CURIAM:

The panel unanimously agrees that this case may be submitted without oral argument.

Healy Tibbitts Construction Company appeals from the grant of summary judgment in favor of its insurer, Insurance Company of North America. Healy assigns error to the trial court’s finding that the insurance policy exclusion precluded his recovery. He argues that 1) the barge was not within the policy exclusion, 2) failure to plead the exclusion as an affirmative defense waived the provision, and 3) failure to attempt settlement and delay in acting on the claim constituted bad faith. We affirm.

The insurance policy specifically excludes “water craft in the care, custody or control of the insured.” We have carefully reviewed the record, since we review construction of an insurance policy exclusionary clause de novo. The trial court’s finding on undisputed facts that Healy had control over the barge at the time of the damage and that its access to the barge was more than just temporary is the only conclusion supported by the record. See Home Indemnity Co. v. Leo L. Davis, Inc., 79 Cal.App.3d 863, 145 Cal.Rptr. 158 (1978); and Kershaw v. Maryland Casualty Co., 172 Cal.App.2d 248, 342 P.2d 72 (1959).

Control does not involve an element of causation here. In State Farm Mutual Auto Insurance Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973), upon which Healy primarily relies for its argument, the exclusion was for injuries “arising out of the use.” That language differs from the language here. Healy’s argument that the barge was in no one’s control at the time of the storm also fails. The contract gave Healy complete responsibility for the barges until they were picked up by the owner. The provision is sufficient to place the barges in Healy’s control at the time of the damage.

Although the Insurance Company of North America listed seven affirmative defenses and failed to refer to the policy’s control exclusion clause, such failure is not a waiver. While state law defines the nature of the defenses, the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs. Morgan Guaranty Trust Co. of New York v. Blum, 649 F.2d 342, 344 (5th Cir. Unit B, 1981). The defendant should be permitted to raise its policy exclusions defense in a motion for summary judgment, whether or not it was specifically pleaded as an affirmative defense, at least where no prejudice results to the plaintiff. 6 Pt. 2 Moore’s Federal Practice, § 56.17[4] at 56-737 (2 ed. 1980). Here, both parties were aware of the policy exclusion; it was discussed by Healy in its opposition to the motion for summary judgment. See Backar v. Western States Producing Co., 547 F.2d 876, 881 (5th Cir. 1977).

There is no merit to the allegation of bad faith. The fact that the barge was excluded from coverage precludes a ques[*805] tion of bad faith refusal to settle. See Johansen v. California State Automobile Association Inter-Insurance Bureau, 15 Cal.3d 9, 19, 123 Cal.Rptr. 288, 538 P.2d 744 (1975).

Affirmed.