Ass'n of Unit Owners of Nestani v. State Farm Fire & Casualty Insurance

Ninth Circuit

Ass'n of Unit Owners of Nestani v. State Farm Fire & Casualty Insurance

434 F. App'x 579

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 17, 2011

Docket09-36047

StatusUnpublished

Cited by2 cases

This text of 434 F. App'x 579 (Ass'n of Unit Owners of Nestani v. State Farm Fire & Casualty Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ass'n of Unit Owners of Nestani v. State Farm Fire & Casualty Insurance, 434 F. App'x 579 (9th Cir. 2011).

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Opinion

MEMORANDUM *

The Association of Unit Owners of Nes-tani-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 ea-sualty 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.

*

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

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MEMORANDUM *

The Association of Unit Owners of Nes-tani-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 ea-sualty 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.

*

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

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