Ass'n of Unit Owners Nestaniv.State Farm

United States Court of Appeals, Ninth CircuitMay 17, 2011
434 Fed. Appx. 579 (9th Cir. 2011)

No. 09-36047.

Argued and Submitted May 3, 2011.

Filed May 17, 2011.

Dwain Mark Clifford, Ball Janik LLP, Portland, OR, for Plaintiff-Appellant.

Thomas A. Gordon, Brian Carl Hickman, Andrew Moses, Diane L. Polscer, Gordon Polscer, L.L.C., Portland, OR, for Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, Chief District Judge, Presiding. DC No. 6:08 cv 0790 AA.

Before: KOZINSKI, Chief Judge, TASHIMA and IKUTA, Circuit Judges.


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Cir. R. 36-3.

The Association of Unit Owners of Nestani-A Grecian Villa (the "Association") appeals the district court's grant of summary judgment to State Farm Fire Casualty Insurance Company ("State Farm") in a dispute over coverage under the Collapse Endorsement to the Association's casualty insurance policy issued by State Farm. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The Association bears the burden of showing that a "collapse" occurring during the policy period caused its loss. See Lewis v. Aetna Ins. Co., 264 Or. 314, 505 P.2d 914, 916 (1973). Given the ongoing nature of the property damage and the expert testimony that there's no way to determine when the damage happened, no rational trier of fact could conclude that the Association has made such a showing. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

2. The district court correctly concluded that no "entire collapse" of "any part of a building" occurred. The language in the Collapse Endorsement was drafted specifically to limit coverage to actual collapses. Sexton v. State Farm Fire Cas. Co., 2003 WL 23274849, at *2, 2003 Del.Super. LEXIS 430, at *5-6 (Dec. 30, 2003); see also Assurance Co. of Am. v. Wall Assocs. LLC of Olympia, 379 F.3d 557, 563 (9th Cir. 2004). Damage of the type seen here is more properly treated as imminent collapse or as structural impairment. E.g., id. at 558 (in which gypsum sheathing had "turned to mush"); Schray v. Fireman's Fund Ins. Co., 402 F.Supp.2d 1212, 1215 (D.Or. 2005) (where property had "significant rot and decay of some structural members").

3. Because we affirm on the above bases, we need not decide whether the district court erred in its interpretation of the term "sudden."

AFFIRMED.