Miller Marital Deduction Trust v. Estate of Jack Miller

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 3, 2021
• Docket: 19-16895
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 3 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MILLER MARITAL DEDUCTION No. 19-16895 TRUST, by and through its trustees, Helen Miller and James Morris; HELEN D.C. No. 2:16-cv-01883-SB MILLER, an individual,

Plaintiffs-Appellants, MEMORANDUM*

v.

ESTATE OF JACK MILLER, an individual, Deceased; ESTATE OF RICHARD CALHOUN, Deceased, ex. rel. Insurance Company of the West,

Defendants-Appellees,

and

ESTATE OF MARK B. DUBOIS, DBA Glo Dry Cleaning System, an individual, Deceased; et al.,

Defendants.

Appeal from the United States District Court for the Eastern District of California Stanley A. Bastian, Chief District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted February 1, 2021** San Francisco, California

Before: IKUTA and NGUYEN, Circuit Judges, and EATON,*** Judge.

Miller Marital Deduction Trust (the Trust) and James Morris, the Trust’s

trustee and Hellen Miller’s successor in interest, appeal from the district court’s

grant of summary judgment for defendants, the estate of Jack Miller and the estate

of Richard Calhoun. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Because the Trust incurred expenses and damages to its property due to the

contamination at the Property, which was allegedly caused by the defendants, the

Trust suffered a concrete injury, and its complaint presented a live case or

controversy ripe for adjudication. See Clark v. City of Seattle, 899 F.3d 802, 808

(9th Cir. 2018). Given that the Trust sued the relevant defendants only “to the

extent of [their] estate’s insurance assets,” a determination that the insureds lacked

coverage for the liability at issue would resolve the case. Therefore, the district

court did not err in deciding the defendants’ motions for summary judgment on the

coverage issue before reaching the question of the insureds’ liability.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** Richard K. Eaton, Judge of the United States Court of International Trade, sitting by designation. 2 Under California law, the insured under a comprehensive general liability

insurance policy “clearly bears the burden of establishing coverage” in insurance

coverage actions. Aydin Corp. v. First State Ins. Co., 18 Cal. 4th 1183, 1190

(1998), as modified on denial of reh’g (Oct. 14, 1998). As the party seeking

payment for damages covered by a deceased’s insurance policy, a plaintiff in an

action pursuant to sections 550–555 of the California Probate Code also bears the

burden of proving coverage. Escobedo v. Estate of Snider, 14 Cal. 4th 1214, 1228

(1997). The “sudden and accidental” exception to a pollution exclusion “is

properly construed as a coverage provision” for which the party seeking coverage

bears the burden of proof. Aydin Corp., 18 Cal. 4th at 1191. Accordingly, the

Trust bore the burden of proving the applicability of this exception.

The Trust failed to present evidence beyond mere speculation about any

particular sudden and accidental discharge of perchloroethylene. See State v.

Allstate Ins. Co., 45 Cal. 4th 1008, 1037 (2009). The record contained no evidence

that perchloroethylene was released onto the concrete slab or that the removal of

the concrete slab caused a sudden and accidental release of perchloroethylene. The

expert witness opinions (even assuming their admissibility) were merely

speculative. Therefore, the Trust did not carry its burden “to designate specific

facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp.

3 Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Because there was no genuine

dispute of material facts regarding the applicability of the “sudden and accidental”

exception, the district court did not err in granting summary judgment in favor of

the defendants.

AFFIRMED.