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Ash Grove Cement Co. v. Liberty Mut. Ins. Co.

United States Court of Appeals for the Ninth Circuit

May 2, 2016, Argued and Submitted, Portland, Oregon; May 11, 2016, Filed

No. 13-35900, No. 13-35905, No. 14-35298

Opinion

 [*587]  MEMORANDUM1

Liberty Mutual Insurance Company ("Liberty") and United States Fidelity and Guaranty Company ("USF&G") appeal a declaratory judgment, entered after a bench trial, holding that they have a duty under Oregon law to defend Ash Grove Cement Company. Ash Grove cross-appeals the denial of a portion of its attorneys' fee request. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

Ash Grove operates two cement plants on the east shore of the Willamette River within the Portland Harbor Superfund Site (the "Site"). See 65 Fed. Reg. 75179-01(III)(A) (Dec. 1, 2000) (listing Portland Harbor on the National Priorities List). In January 2008, Ash Grove received an information request from the U.S. Environmental Protection [**5]  Agency ("EPA") pursuant to section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9604(e), regarding contamination at the Site (the "104(e) letter"). On January 29, 2008, Ash Grove forwarded the 104(e) letter to Liberty and USF&G (the "Insurers").

In January 2009, Ash Grove filed a complaint in Oregon state court seeking a declaratory judgment that the Insurers and Hartford Accident and Indemnity Company ("Hartford") had a duty to defend and indemnify Ash Grove for certain expenses it incurred related to the 104(e) letter, damages for breach of contract, and attorneys' fees. The defendants subsequently removed the case to the District of Oregon.2

1. In July 2010, Ash Grove settled its claims against Hartford. The district court properly rejected the Insurers' argument that "the injuries for which damages were sought in the two actions" were "identical," because the settlement broadly settled all potential claims between the parties, not just those related to the Site. See Maduff Mortg. Corp. v. Deloitte Haskins & Sells, 98 Ore. App. 497, 779 P.2d 1083, 1090 (Or. Ct. App. 1989).

2. The Insurers argue that the 104(e) letter is not a "suit" under Oregon law.3 But, we have previously held that ] a 104(e) letter is a "coercive information [**6]  demand[]" that is "an attempt to gain an end through legal process," and is therefore a "suit" under Oregon law. Anderson Bros.,  [*588]  Inc. v. St. Paul Fire & Marine Ins. Co., 729 F.3d 923, 932-33, 935 (9th Cir. 2013).

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649 Fed. Appx. 585 *; 2016 U.S. App. LEXIS 8663 **

ASH GROVE CEMENT COMPANY, a Delaware corporation, Plaintiff - Appellee, STATE OF OREGON, Intervenor, v. LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts insurance company, Defendant - Appellant.ASH GROVE CEMENT COMPANY, a Delaware corporation, Plaintiff - Appellee, STATE OF OREGON, Intervenor, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Maryland insurance company, Defendant - Appellant.ASH GROVE CEMENT COMPANY, a Delaware corporation, Plaintiff - Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts insurance company; UNITED STATES FIDELITY & GUARANTY COMPANY, a Maryland insurance company, Defendants - Appellees.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] Appeal from the United States District Court for the District of Oregon. D.C. No. 3:09-cv-00239-HZ, D.C. No. 3:09-cv-00239-HZ, D.C. No. 3:09-cv-00239-HZ. Marco A. Hernandez, District Judge, Presiding.

Ash Grove Cement Co. v. Liberty Mut. Ins. Co., 2014 U.S. Dist. LEXIS 27129 (D. Or., Mar. 3, 2014)Ash Grove Cement Co. v. Liberty Mut. Ins. Co., 2010 U.S. Dist. LEXIS 103763 (D. Or., Sept. 30, 2010)

Disposition: AFFIRMED.

CORE TERMS

Insurers, district court, policies

Business & Corporate Compliance, Hazardous Wastes & Toxic Substances, CERCLA & Superfund, Enforcement, Insurance Law, Liability & Performance Standards, Good Faith & Fair Dealing, Duty to Defend, Civil Procedure, Attorney Fees & Expenses, Basis of Recovery, Statutory Awards, Remedies, Costs & Attorney Fees, Failure to Settle, Reasonable Fees, Evidence, Burdens of Proof, Allocation