Tacoma Electric Supply Inc. v. Atlantic Mutual Insurance
Docket: No. 01-35218; D.C. No. CV-00-05213-FDB
Court: Court of Appeals for the Ninth Circuit; June 25, 2002; Federal Appellate Court
Tacoma Electric Supply, Inc. appeals the district court's summary judgment favoring its property insurer, Atlantic Mutual Insurance Co., which denied coverage for damage based on an "earth movement" exclusion. Tacoma argues that the exclusion is ambiguous, asserting it only applies to earth movement with observable ground surface manifestations. Without such manifestations, Tacoma contends that the summary judgment should favor it, requiring Atlantic to pay the damage claim. Alternatively, Tacoma claims a genuine issue of material fact exists regarding whether the damage was caused by earth movement or bearing failure. The court applies a de novo review standard for summary judgment, considering evidence in favor of Tacoma to determine if genuine material fact issues exist. The court agrees with the district court's finding that the earth movement exclusion is unambiguous, indicating it includes all forms of earth movement, regardless of surface visibility. The court emphasizes that introducing a distinction between observable and non-observable movement would create ambiguity contrary to the principles set by Washington State law. However, the court finds that a genuine issue of material fact exists concerning the cause of the damage, as Tacoma's expert contends that bearing failure, rather than earth movement, was the cause. This contradicts Atlantic's expert's conclusion attributing the damage to earth movement. The conflicting expert opinions necessitate a factual determination by a jury regarding the cause of the damage. Consequently, the court reverses the district court's summary judgment and remands the case for further proceedings, with each party bearing its own costs. The decision is not intended for publication and citation is restricted.