NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GOLD CREEK CONDOMINIUM-PHASE I No. 22-35606 ASSOCIATION OF APARTMENT OWNERS, a Washington non-profit D.C. No. 3:20-cv-05690-RJB corporation,
Plaintiff-Appellant, MEMORANDUM*
v.
STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation; TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA, a Connecticut company; ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a Connecticut company; AETNA CASUALTY AND SURETY COMPANY, a Connecticut company; AETNA CASUALTY INSURANCE COMPANY OF ILLINOIS, a Connecticut company; TRAVELERS CASUALTY AND SURETY COMPANY, a Connecticut company,
Defendants-Appellees.
Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding
Argued and Submitted October 3, 2023
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Seattle, Washington
Before: WARDLAW and M. SMITH, Circuit Judges, and HINKLE,** District Judge.
Gold Creek Condominium-Phase I Association of Apartment Owners (Gold
Creek)1 appeals the district court’s order excluding Gold Creek’s expert testimony
and its orders granting summary judgment in favor of Defendants-Appellees,
several insurance companies, including State Farm and Travelers.2 Because we
assume the parties’ familiarity with the facts, we recount them here only as
necessary. We affirm.
1. The district court properly granted summary judgment to State Farm based
on its suit limitation clause. Gold Creek’s State Farm policy states that, “No action
shall be brought unless . . . the action is started within one year after the occurrence
causing loss or damage.” Because the policy’s plain text unambiguously requires
that Gold Creek bring suit within one year of rain events during the policy period
(from 1989 to 1990) and because Gold Creek effectively filed suit nearly thirty
years later, the policy bars claims against State Farm.
Panorama Vill. Condo Owners Ass’n Bd. of Directors v. Allstate Ins. Co., 26
** The Honorable Robert L. Hinkle, United States District Judge for the Northern District of Florida, sitting by designation. 1 We deny as moot Gold Creek’s motion to extend time to file reply brief (Dkt. 61). 2 “Travelers” refers to several separate, named defendants who eventually became part of the same corporate family.
2 P.3d 910 (Wash. 2001) is distinguishable because Washington interpreted the
policy language there—“after a loss occurs”—to require suit be brought within one
year after the completion of hidden loss, i.e. when the loss was discovered. The
policy language here does not state that a suit must be brought within a year “after
a loss occurs.” It states that a suit must be brought within a year “after the
occurrence causing loss or damage.” This distinction makes a difference. The
phrase “after a loss occurs” focuses on the triggering event of the loss. See
Panorama, 26 P.3d at 914. The phrase “after the occurrence causing loss or
damage” focuses on the triggering event of the cause. The “loss” may not have
“occurred” until the hidden decay was exposed to view, but the “occurrence”
causing the loss are rainstorms that took place during the policy period, which no
party argues were concealed from view. Cf. Villella v. Public Employees Mut. Ins.
Co., 725 P.2d 957 (Wash. 1986) (distinguishing between losses and causes
occurring during policy period).
Even if we interpret “occurrence” to include continuous occurrences, such
occurrences that take place after the policy period cannot cause “loss to property
during the policy period,” as required to trigger coverage under the policy. Thus,
the latest date that Gold Creek could bring suit under State Farm’s policy was in
1991. This reading is supported by the very next sentence in the policy, which
explicitly implements a discovery rule for employee dishonesty claims. See
3 Transcon. Ins. Co. v. Wash. Pub. Utils. Dists.’ Util. Sys., 760 P.2d 337, 340 (Wash.
1988); Ellis Court Apartments Ltd. Partnership ex rel. Woodside Corp. v. State
Farm Fire and Cas. Co., 72 P.3d 1086, 1090 (Wash. Ct. App. 2003). Because
Gold Creek did not bring suit within a year of the last rain event causing damage
during the policy period, the district court properly dismissed its claims against
State Farm.
2. The district court did not abuse its discretion in excluding Soltner’s testimony.
We review the exclusion of expert testimony for abuse of discretion to determine
whether the court “performed a sufficiently rigorous evaluation of [the expert’s
testimony] and did not ‘reach[] a result that is illogical, implausible, or without
support in inferences that may be drawn from the record.’” Murray v. S. Route Mar.
SA, 870 F.3d 915, 922 (9th Cir. 2017) (citing United States v. Hinkson, 585 F.3d
1247, 1262 (9th Cir. 2009) (en banc)). District courts are vested with “broad
latitude” to “decide how to test an expert’s reliability and whether or not an expert’s
relevant testimony is reliable.” Murray, 870 F.3d at 923 (cleaned up).
Although a reasonable judge could disagree as to the reliability of Soltner’s
opinion, it was not “illogical, implausible, or without support in inferences that may
be drawn from the record,” id. at 922, to exclude it. The court performed a rigorous
evaluation, holding two separate Daubert hearings and, although brief in its
reasoning, cited specific testimony to justify its decision. It held that Soltner’s
4 opinion that “the loss or damage occurred during the policy periods in this 40-year-
old building is speculative and is based on assumptions not supported by the
evidence or Mr. Soltner’s experience.” In support of this conclusion, it pointed to
two admissions by Soltner, that (1) there is no way to identify which rain events
cause damage and which do not and (2) there is no way to determine when damage
actually occurred.
These admissions provide support for the district court’s determination that
Soltner could not reliably testify that new damage, as opposed to new rain events,
occurred each year. Soltner’s scientific analysis pales in comparison to that
identified by appellants in Elosu v. Middlefork Ranch Inc., 26 F.4th 1017 (9th Cir.
2022), where the district court ignored a litany of evidence presented by the expert,
including photographs, charts, artifacts, weather data, a forensic report, and
reconstruction of the scene of the fire, and improperly weighed the expert’s
conclusions against the testimony of eyewitnesses. Id. at 1028–29.
Further, the district court reasonably excluded Soltner’s methodology
examining weather data, which included arguably arbitrary bright lines and a
questionable reading of the scientific literature.
3.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GOLD CREEK CONDOMINIUM-PHASE I No. 22-35606 ASSOCIATION OF APARTMENT OWNERS, a Washington non-profit D.C. No. 3:20-cv-05690-RJB corporation,
Plaintiff-Appellant, MEMORANDUM*
v.
STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation; TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA, a Connecticut company; ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a Connecticut company; AETNA CASUALTY AND SURETY COMPANY, a Connecticut company; AETNA CASUALTY INSURANCE COMPANY OF ILLINOIS, a Connecticut company; TRAVELERS CASUALTY AND SURETY COMPANY, a Connecticut company,
Defendants-Appellees.
Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding
Argued and Submitted October 3, 2023
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Seattle, Washington
Before: WARDLAW and M. SMITH, Circuit Judges, and HINKLE,** District Judge.
Gold Creek Condominium-Phase I Association of Apartment Owners (Gold
Creek)1 appeals the district court’s order excluding Gold Creek’s expert testimony
and its orders granting summary judgment in favor of Defendants-Appellees,
several insurance companies, including State Farm and Travelers.2 Because we
assume the parties’ familiarity with the facts, we recount them here only as
necessary. We affirm.
1. The district court properly granted summary judgment to State Farm based
on its suit limitation clause. Gold Creek’s State Farm policy states that, “No action
shall be brought unless . . . the action is started within one year after the occurrence
causing loss or damage.” Because the policy’s plain text unambiguously requires
that Gold Creek bring suit within one year of rain events during the policy period
(from 1989 to 1990) and because Gold Creek effectively filed suit nearly thirty
years later, the policy bars claims against State Farm.
Panorama Vill. Condo Owners Ass’n Bd. of Directors v. Allstate Ins. Co., 26
** The Honorable Robert L. Hinkle, United States District Judge for the Northern District of Florida, sitting by designation. 1 We deny as moot Gold Creek’s motion to extend time to file reply brief (Dkt. 61). 2 “Travelers” refers to several separate, named defendants who eventually became part of the same corporate family.
2 P.3d 910 (Wash. 2001) is distinguishable because Washington interpreted the
policy language there—“after a loss occurs”—to require suit be brought within one
year after the completion of hidden loss, i.e. when the loss was discovered. The
policy language here does not state that a suit must be brought within a year “after
a loss occurs.” It states that a suit must be brought within a year “after the
occurrence causing loss or damage.” This distinction makes a difference. The
phrase “after a loss occurs” focuses on the triggering event of the loss. See
Panorama, 26 P.3d at 914. The phrase “after the occurrence causing loss or
damage” focuses on the triggering event of the cause. The “loss” may not have
“occurred” until the hidden decay was exposed to view, but the “occurrence”
causing the loss are rainstorms that took place during the policy period, which no
party argues were concealed from view. Cf. Villella v. Public Employees Mut. Ins.
Co., 725 P.2d 957 (Wash. 1986) (distinguishing between losses and causes
occurring during policy period).
Even if we interpret “occurrence” to include continuous occurrences, such
occurrences that take place after the policy period cannot cause “loss to property
during the policy period,” as required to trigger coverage under the policy. Thus,
the latest date that Gold Creek could bring suit under State Farm’s policy was in
1991. This reading is supported by the very next sentence in the policy, which
explicitly implements a discovery rule for employee dishonesty claims. See
3 Transcon. Ins. Co. v. Wash. Pub. Utils. Dists.’ Util. Sys., 760 P.2d 337, 340 (Wash.
1988); Ellis Court Apartments Ltd. Partnership ex rel. Woodside Corp. v. State
Farm Fire and Cas. Co., 72 P.3d 1086, 1090 (Wash. Ct. App. 2003). Because
Gold Creek did not bring suit within a year of the last rain event causing damage
during the policy period, the district court properly dismissed its claims against
State Farm.
2. The district court did not abuse its discretion in excluding Soltner’s testimony.
We review the exclusion of expert testimony for abuse of discretion to determine
whether the court “performed a sufficiently rigorous evaluation of [the expert’s
testimony] and did not ‘reach[] a result that is illogical, implausible, or without
support in inferences that may be drawn from the record.’” Murray v. S. Route Mar.
SA, 870 F.3d 915, 922 (9th Cir. 2017) (citing United States v. Hinkson, 585 F.3d
1247, 1262 (9th Cir. 2009) (en banc)). District courts are vested with “broad
latitude” to “decide how to test an expert’s reliability and whether or not an expert’s
relevant testimony is reliable.” Murray, 870 F.3d at 923 (cleaned up).
Although a reasonable judge could disagree as to the reliability of Soltner’s
opinion, it was not “illogical, implausible, or without support in inferences that may
be drawn from the record,” id. at 922, to exclude it. The court performed a rigorous
evaluation, holding two separate Daubert hearings and, although brief in its
reasoning, cited specific testimony to justify its decision. It held that Soltner’s
4 opinion that “the loss or damage occurred during the policy periods in this 40-year-
old building is speculative and is based on assumptions not supported by the
evidence or Mr. Soltner’s experience.” In support of this conclusion, it pointed to
two admissions by Soltner, that (1) there is no way to identify which rain events
cause damage and which do not and (2) there is no way to determine when damage
actually occurred.
These admissions provide support for the district court’s determination that
Soltner could not reliably testify that new damage, as opposed to new rain events,
occurred each year. Soltner’s scientific analysis pales in comparison to that
identified by appellants in Elosu v. Middlefork Ranch Inc., 26 F.4th 1017 (9th Cir.
2022), where the district court ignored a litany of evidence presented by the expert,
including photographs, charts, artifacts, weather data, a forensic report, and
reconstruction of the scene of the fire, and improperly weighed the expert’s
conclusions against the testimony of eyewitnesses. Id. at 1028–29.
Further, the district court reasonably excluded Soltner’s methodology
examining weather data, which included arguably arbitrary bright lines and a
questionable reading of the scientific literature.
3. The district court properly granted Travelers’ motion for partial summary
judgment. Washington law requires the insured to “show the loss falls within the
scope of the policy’s insured losses.” McDonald v. State Farm Fire & Cas. Co., 837
5 P.2d 1000, 1003–04 (Wash. 1992). It remains unsettled, however, which trigger of
coverage rule applies for property insurance. See Hillhaven Props. Ltd. v. Sellen
Const. Co., 948 P.2d 796, 800 (Wash. 1997); Ellis Court, 72 P.2d at 1090
(“Washington has not recognized the manifestation doctrine in prior first-party
cases, and we decline to adopt it here.”). Because the district court properly granted
Travelers’ motion under any of the three trigger rules, we need not address which
one applies.
First, Travelers’ policy would not cover Gold Creek under the manifestation
rule because Gold Creek did not discover the claimed damage until 2018, nearly
twenty-two years after the policy period expired. See e.g., Prudential-LMI Com.
Ins. v. Superior Ct., 798 P.2d 1230, 1247 (Cal. 1990) (holding that when the
“undisputed evidence establishes that no damage had been discovered before a given
date (i.e., no manifestation occurred), then insurers whose policies expired prior to
that date could not be liable for the loss”).
Second, under the injury-in-fact rule, Travelers’ policy would not cover
Gold Creek because damage did not “commence” during the policy period.
Travelers’ policy states that they “cover loss or damage commencing: . . . [d]uring
the policy period.” Under the injury-in-fact rule, “commencing” means “first
beginning.” Ellis Court, 72 P.3d at 1090; Mercer Place Condo. Ass’n v. State
Farm Fire & Cas. Co., 17 P.3d 626, 629–30 (Wash. Ct. App. 2000). No evidence
6 in the record shows that new damage necessarily commenced between 1991 and
1996, even if existing damage worsened.
Finally, under the continuous trigger rule, Appellant need only show that
some damage occurred during the policy period. Am. Nat. Fire Ins. Co. v. B & L
Trucking and Const. Co., 951 P.2d 250, 255 (Wash. 1998); Eagle Harbour Condo.
Ass’n v. Allstate Ins. Co., No. C15-1312, 2017 WL 1316936, at *6 (W.D. Wash.
Apr. 10, 2017). However, Travelers’ deductible policy states that it “will not pay
for loss or damage in any one occurrence until the amount of loss or damage
exceeds the Deductible. . . .” We interpret “occurrence” to mean a rain event
causing damage during the policy period, and there is no evidence in the record
that such an event occurred during the policy period. Further, no evidence exists
demonstrating that, between 1991 and 1996, (1) the damage existing in 2018
occurred, (2) even one panel of gypsum sheathing was damaged, or (3) any
gypsum sheathing needed to be completely replaced. Thus, this record would not
permit a reasonable juror to conclude that damage exceeding the deductible
occurred during the policy period.
AFFIRMED.