Miller Marital Deduction Trust, by v. Estate of Jack Miller, an individual, Deceased

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILLER MARITAL DEDUCTION
TRUST, by and through its trustees, Helen
Miller and James Morris; HELEN
MILLER, an individual,
Plaintiffs-Appellants,
v.
ESTATE OF JACK MILLER, an
individual, Deceased; ESTATE OF
RICHARD CALHOUN, Deceased, ex. rel.
Insurance Company of the West,
Defendants-Appellees,
and
ESTATE OF MARK B. DUBOIS, DBA
Glo Dry Cleaning System, an individual,
Deceased; et al.,
Defendants.
No. 19-16895
D.C. No. 2:16-cv-01883-SB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Stanley A. Bastian, Chief District Judge, Presiding
FILED
FEB 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Submitted February 1, 2021**
San Francisco, California
Before: IKUTA and NGUYEN, Circuit Judges, and EATON,*** Judge.
Miller Marital Deduction Trust (the Trust) and James Morris, the Trust’s
trustee and Hellen Miller’s successor in interest, appeal from the district court’s
grant of summary judgment for defendants, the estate of Jack Miller and the estate
of Richard Calhoun. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Because the Trust incurred expenses and damages to its property due to the
contamination at the Property, which was allegedly caused by the defendants, the
Trust suffered a concrete injury, and its complaint presented a live case or
controversy ripe for adjudication. See Clark v. City of Seattle, 899 F.3d 802, 808
(9th Cir. 2018). Given that the Trust sued the relevant defendants only “to the
extent of [their] estate’s insurance assets,” a determination that the insureds lacked
coverage for the liability at issue would resolve the case. Therefore, the district
court did not err in deciding the defendants’ motions for summary judgment on the
coverage issue before reaching the question of the insureds’ liability.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
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Under California law, the insured under a comprehensive general liability
insurance policy “clearly bears the burden of establishing coverage” in insurance
coverage actions. Aydin Corp. v. First State Ins. Co., 18 Cal. 4th 1183, 1190
(1998), as modified on denial of reh’g (Oct. 14, 1998). As the party seeking
payment for damages covered by a deceased’s insurance policy, a plaintiff in an
action pursuant to sections 550–555 of the California Probate Code also bears the
burden of proving coverage. Escobedo v. Estate of Snider, 14 Cal. 4th 1214, 1228
(1997). The “sudden and accidental” exception to a pollution exclusion “is
properly construed as a coverage provision” for which the party seeking coverage
bears the burden of proof. Aydin Corp., 18 Cal. 4th at 1191. Accordingly, the
Trust bore the burden of proving the applicability of this exception.
The Trust failed to present evidence beyond mere speculation about any
particular sudden and accidental discharge of perchloroethylene. See State v.
Allstate Ins. Co., 45 Cal. 4th 1008, 1037 (2009). The record contained no evidence
that perchloroethylene was released onto the concrete slab or that the removal of
the concrete slab caused a sudden and accidental release of perchloroethylene. The
expert witness opinions (even assuming their admissibility) were merely
speculative. Therefore, the Trust did not carry its burden “to designate specific
facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp.
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Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Because there was no genuine
dispute of material facts regarding the applicability of the “sudden and accidental”
exception, the district court did not err in granting summary judgment in favor of
the defendants.
AFFIRMED.
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