Tarleton LLC v. State Farm Fire and Cas. Co. , 671 F. App'x 505 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 05 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TARLETON LLC, an Oregon limited No. 14-35540
liability company,
D.C. No. 3:12-cv-00989-AC
Plaintiff-Appellant,
v. MEMORANDUM*
STATE FARM FIRE AND CASUALTY
INSURANCE COMPANY, an Illinois
insurance business corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted November 9, 2016
Portland, Oregon
Before: McKEOWN, W. FLETCHER, and FISHER, Circuit Judges.
Tarleton LLC (“Tarleton”) appeals from the district court’s order granting
summary judgment to State Farm Fire and Casualty Insurance Company (“State
Farm”). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review the district court’s grant of summary judgment de novo.
Evanston Ins. Co. v. OEA, Inc., 566 F.3d 915, 918 (9th Cir. 2009). Summary
judgment is appropriate if, viewing the evidence in the light most favorable to
Tarleton, there is no genuine issue of material fact and State Farm is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); Olden v. Idaho State Bd. of
Med., 363 F.3d 916, 922 (9th Cir. 2004).
State Farm is entitled to summary judgment. Tarleton’s insurance policy
covers collapses that were “directly and immediately caused only by . . . the weight
of contents . . . [and] equipment.” Tarleton’s expert, Wade Younie, identified in
his expert report elevated July temperatures as a contributing cause of the 2011
collapse of Truss D. There is thus no genuine dispute that a factor other than the
weight of contents and equipment directly and immediately caused the collapse.
On Tarleton’s own theory of causation, the insurance policy cannot apply.
Tarleton argues that summary judgment is improper because Younie later
submitted an affidavit withdrawing his opinion, stated in his expert report, that heat
was a “likely trigger” of the truss collapse. However, the circumstances
surrounding the withdrawal did not require the district court to credit Younie’s
change of opinion. Younie sought to retract a dispositive expert opinion without
any new evidence, only after a motion for summary judgment was made, and only
after a district court decision interpreting similar insurance policy language alerted
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Tarleton to the damaging nature of Younie’s conclusion in his expert report. See
Bjugan v. State Farm Fire & Cas. Co., 969 F. Supp. 2d 1283, 1291 (D. Or. 2013).
Under these circumstances, the issue of fact created by Younie’s later-submitted
affidavit cannot reasonably be characterized as “genuine.” The district court
therefore did not err in disregarding the heat-related portions of Younie’s affidavit.
AFFIRMED.
3