Randall Childress v. Costco

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 26, 2021
• Docket: 19-35441
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RANDALL CHILDRESS; CLAUDIA No. 19-35441 CHILDRESS, D.C. No. 9:18-cv-00183-DWM Plaintiffs-Appellees,

v. MEMORANDUM*

COSTCO WHOLESALE CORPORATION,

Defendant-Appellant.

RANDALL CHILDRESS; CLAUDIA No. 19-35493 CHILDRESS, D.C. No. 9:18-cv-00183-DWM Plaintiffs-Appellants,

v.

Defendant-Appellee.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Argued and Submitted September 4, 2020 Submission Vacated October 19, 2020 Resubmitted October 22, 2021 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: BYBEE and COLLINS, Circuit Judges, and SOTO,** District Judge.

After hearing oral argument, we certified the following question, an issue of

first impression under Montana law and dispositive of the instant case, to the

Montana Supreme Court:

Whether, under Montana law, parasitic emotional distress damages are available for an underlying negligence claim for personal property damage or loss?

Childress v. Costco Wholesale Corp., 978 F.3d 664, 668 (9th Cir. 2020) (citing

Mont. R. App. P. 15(6)(a)(iii)).

The Montana Supreme Court graciously accepted our certification request,

Childress v. Costco Wholesale Corp., No. OP 20-0526, 2020 WL 6482116 (Mont.

Nov. 4, 2020), and then answered our certified question, without modification and

on the facts and procedural history provided in our certification order. Childress v.

Costco Wholesale Corp., 493 P.3d 314 (Mont. 2021). The Supreme Court

answered the question in the negative, explaining:

[The] Childresses did not establish the basis for parasitic emotional distress damages we approved in Maloney, where plaintiffs proved “a subjective relationship with the property on a ‘personal-identity’ level.” Nothing in the facts provided to this Court indicate that the handgun was an heirloom, nor were the house keys, documents, or ammunition so intrinsically intertwined with the Childress family dynamic that without these articles their “personal identity” would be

** The Honorable James Alan Soto, United States District Judge for the District of Arizona, sitting by designation.

2 19-35441 irreparably impacted. Rather, under the facts as provided, the Childresses were deprived of fungible property whose value is derived from its utility, not for its intrinsic value.

Id. at 318 (citations omitted). Because the Childresses are not entitled to parasitic

emotional distress damages for their underlying negligence claim, the Supreme

Court’s decision requires a resolution in Costco’s favor.

Accordingly, the award of $62,750 in “unspecified, non-property damages”

on the Childresses negligence claim is VACATED. 1 This matter is remanded to

the District Court for further proceedings consistent with this Memorandum.

1 The parties raised several other issues on appeal. However, because the “unspecified, non-property damages” award is vacated, those issues are moot and we decline to reach them.

3 19-35441