Ass'n of Unit Owners of Nestani v. State Farm Fire & Casualty Insurance , 434 F. App'x 579 ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             MAY 17 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    ASSOCIATION OF UNIT OWNERS OF                    No. 09-36047
    NESTANI - A GRECIAN VILLA, an
    Oregon limited liability company,                DC No. 6:08 cv 0790 AA
    Plaintiff - Appellant,
    MEMORANDUM *
    v.
    STATE FARM FIRE & CASUALTY
    INSURANCE COMPANY,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the District of Oregon
    Ann L. Aiken, Chief District Judge, Presiding
    Argued and Submitted May 3, 2011
    Portland, Oregon
    Before:       KOZINSKI, Chief Judge, TASHIMA and IKUTA, Circuit Judges.
    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
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Cir. R. 36-3.
    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., 
    505 P.2d 914
    , 916 (Or. 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 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
    ,
    2
    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.
    3
    

Document Info

Docket Number: 09-36047

Citation Numbers: 434 F. App'x 579

Judges: Ikuta, Kozinski, Tashima

Filed Date: 5/17/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023