Ash Grove Cement Company v. Liberty Mutual Insurance Company et al, No. 3:2009cv00239 - Document 145 (D. Or. 2011)
Court Description: Opinion and Order - USF&G's Motion for Joinder 123 is GRANTED. The defendants' Motion for Certification of an Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) 121 is GRANTED. Signed on 1/10/11 by Judge Garr M. King. (mja)
Download PDF
<![CDATA[
Ash Grove Cement Company v. Liberty Mutual Insurance Company et al Doc. 145 IN THE UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION ASH GROVE CEMENT COMPANY, a Delaware corporation, Plaintiff, Case No. 09-239-KI OPINION AND ORDER vs. LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts insurance company, TRAVELERS INSURANCE COMPANY, a Connecticut insurance company; HARTFORD ACCIDENT and INDEMNITY COMPANY, a Connecticut insurance company; and UNITED STATES FIDELITY & GUARANTY COMPANY, a Maryland insurance company, Defendants. Michael E. Farnell Spencer S. Adams Seth H. Row Parsons Farnell & Grein, LLP 1030 SW Morrison Street Portland, Oregon 97205 Page 1 - OPINION AND ORDER Dockets.Justia.com Daniel A. Zariski Michael R. Wrenn Wolfe Wrenn & Zariski Two Union Square 601 Union Street, Suite 5110 Seattle, Washington 98101 Attorneys for Plaintiff Kevin G. McCurdy McCurdy & Fuller 4300 Bohannon Drive, Suite 240 Menlo Park, California 94025 Kimberly R. Griffith Thomas M. Christ Cosgrave Bergeer Kester, LLP 805 SW Broadway, 8th Floor Portland, Oregon 97205 Attorneys for Defendant Liberty Mutual Insurance Company David E. Prange Sean W. Carney Prange Law Group, LLC 111 SW Fifth Avenue, Suite 2120 Portland, Oregon 97204 Alan M. Posner Wayne S. Karbal Karbal Cohen Economou Silk & Dunne, LLC. 150 S. Wacker Drive, Suite 1700 Chicago, IL 60606 Attorneys for Defendant Hartford Accident and Indemnity Company Thomas A. Gordon Andrew S. Mosses Gordon & Polscer, LLC 9755 S. W. Barnes Rd., Suite 650 Portland, Oregon 97225 Attorneys for Defendant United States Fidelity & Guaranty Company Page 2 - OPINION AND ORDER KING, Judge: Defendant Liberty Mutual Insurance Company ( Liberty Mutual ) moves the court for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (doc. # 121). Defendant United States Fidelity & Guaranty Company ( USF&G ) moves to join in the motion (doc. # 123). On September 30, 2010, the court filed an Opinion and Order ( the Opinion and Order ) granting plaintiff Ash Grove Cement Company s ( Ash Grove ) motion for partial summary judgment and denying the cross motions for partial summary judgment of defendants Liberty Mutual and USF&G (doc. # 116). In the Opinion and Order, the court held that pursuant to the Oregon Environmental Cleanup Assistance Act ( OECAA ), Or. Rev. Stat. § 465.480, defendant insurers had a duty to defend Ash Grove after the United States Environmental Protection Agency ( EPA ) made a request for information to Ash Grove pursuant to section 104(e) of the Comprehensive Environmental Response, Compensation and Liability Act ( CERCLA ), 42 U.S.C. § 9604(e) ( the § 104(e) request ). Defendants move the court for an order certifying the Opinion and Order for interlocutory appeal to the Court of Appeals under 28 U.S.C. § 1292(b), on the ground that the Opinion and Order involves a controlling question of law with substantial grounds for difference of opinion, and that the appeal may materially advance the ultimate termination of the litigation. The three requirements of § 1292(b) are jurisdictional, and the party pursuing the interlocutory appeal bears the burden of demonstrating them. Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010. STANDARD Section 1292(b) is a departure from the normal rule that only final judgments are appealable, and therefore must be construed narrowly. James v. Price Stern Sloan, Inc., 283 Page 3 - OPINION AND ORDER F.3d 1064, 1068 n. 6 (9th Cir. 2002). Even when all three statutory conditions are met, district court judges have unfettered discretion to deny certification. Brizzee v. Fred Meyer Stores, Inc., No. 04-1566-ST, 2008 WL 426510 (D. Or. Feb. 13, 2008) at *3 Certification under § 1292(b) are reserved for extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation, such as antitrust and similar protracted cases. United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966), quoted in Brizzee at *4. Section 1292(b) is not intended merely to provide review of difficult rulings in hard cases. Id. DISCUSSION A question of law is controlling under § 1292(b) if resolving the question on appeal could materially affect the outcome of the litigation in the district court. In re Cement Antitrust Litig., 673 F.2d , 1020, 1026 (9th Cir. 1982), aff d sub nom Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983). Although the parties dispute whether this case presents a pure issue of law, I find it unnecessary to resolve the dispute because I conclude that defendants have not carried their burden of showing the existence of either substantial grounds for difference of opinion or that an interlocutory appeal could materially advance the ultimate termination of the litigation. Showing a substantial ground for difference of opinion requires more than a party s disagreement with a court s ruling, and more than the presence of a disputed issue that is a question of first impression. Marsall v. City of Portland, No. 01-1014-ST, 2004 WL 1774532 (D. Or. Aug. 9, 2004) at *5. That settled law might be applied differently does not establish a substantial ground for difference of opinion. Couch, 611 F.3d at 633. A dearth of cases does not constitute substantial ground for difference of opinion. Id. Page 4 - OPINION AND ORDER Defendants assert that the Opinion and Order was the first time a court had ruled on whether a § 104(e) request constituted a suit under the OECAA, but a question of first impression is not sufficient to meet the jurisdictional requirements of § 1292(b). See Couch, 611 F.3d at 634 ( [J]ust because a court is the first to rule on a particular question or just because counsel contends that one precedent rather than another is controlling does not mean there is such a substantial difference of opinion as will support an interlocutory appeal. ) (internal citation and quotation omitted). Defendants cite cases from outside Oregon and the Ninth Circuit for the argument that courts in other jurisdictions have not followed reasoning different from mine with respect to § 104(e) requests. But because the issue here involves an Oregon statute, those cases have no application. Defendants also argue there are substantial grounds for a difference of opinion on whether the use of the word claims in the policies indicates an intent to limit the scope of the term suit. This argument has been rejected by an Oregon court. Certain Underwriters at Lloyd s London & Excess Ins. Co. v. Mass. Bonding & Ins. Co., 235 Or. App. 99, 102, 230 P.3d 103 (2010) (where suit is undefined in the policy, no basis for finding intent to limit its scope for purposes of OECAA). There is no case in Oregon that supports defendants argument. In determining whether a substantial ground for difference of opinion truly exists, a district court must analyze the strength of the arguments in opposition to the challenged ruling. Brizee, 2008 WL at *4 (quoting Ryan, Beck & Co. LLC v. Fakih, 275 F. Supp.2d 393, 396 (E.D.N.Y. 2003). The Lloyd s case vitiates defendants argument to the point of mortality. Defendants have not shown that certification of an interlocutory appeal will materially advance the ultimate termination of the litigation. Section 1292(b) certification merely trades one federal forum for another. Couch, 611 F.3d at 634. Federal rulings on state law issues Page 5 - OPINION AND ORDER generally do not affect the state s law, because state courts are not bound by the decisions of the lower federal courts. Id. I conclude, therefore, that an interlocutory appeal of a state law issue to another federal court would not materially advance the ultimate termination of this litigation. CONCLUSION USF&G s motion for joinder (doc. # 123) is GRANTED. The defendants motion for certification of an interlocutory appeal pursuant to 28 U.S.C § 1292(b)(doc. #121) is GRANTED. IT IS SO ORDERED. Dated this 10th day of January, 2011. /s/ Garr M. King Garr M. King United States District Judge Page 6 - OPINION AND ORDER
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
