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

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NOT FOR PUBLICATION MAY 17 2011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,

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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.

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