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United National Insurance Co. v. R & D Latex Corp.

April 06, 1998

UNITED NATIONAL INSURANCE CO.; AETNA CASUALTY & SURETY CO., PLAINTIFFS-APPELLEES,
v.
R & D LATEX CORP.; MYDRIN, INC., FOR ITSELF AND AS SUCCESSOR IN INTEREST TO R & D LATEX CORP., DEFENDANTS-APPELLANTS.



D.C. No. CV-94-04140-R

Before: Betty B. Fletcher, Frank J. Magill,*fn1 and Thomas G. Nelson, Circuit Judges.

The opinion of the court was delivered by: Judge Fletcher

FOR PUBLICATION

ORDER AND AMENDED

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Argued and Submitted February 4, 1998--Pasadena, California

Amended May 14, 1998

SUMMARY

ORDER

The opinion filed April 6, 1998, Slip Op. at 3057, is amended by deleting the last sentence on page 3064 of the slip opinion, which reads "We have no choice under the facts of this case but to again remand," and replacing it with the following:

We have no choice under the facts of this case but to again remand, since we are not convinced, due to the uncertainty of the law, that the parties would get the same decision were they to proceed anew in state court. See Polido v. State Farm Mut. Auto Ins. Co., 110 F.3d 1418, 1424 (9th Cir. 1997); cf. Golden Eagle Ins. Co. v. Travellers Companies, 103 F.3d 750, 756 (9th Cir. 1996) (overruled in part on other grounds by Dizol, 133 F.3d at 1227). Additionally, we hold that the district court erred in granting summary judgment to United National and Aetna since Mydrin raised genuine issues of material fact as to when the claims were made, whether the claims alleged property damage, and whether the damaged property could have been restored. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995) (summary judgment improper if any material factual issues exist for trial).

FLETCHER, Circuit Judge

In this comeback case, Mydrin, Inc., again appeals the district court's grant of summary judgment and partial summary judgment respectively in favor of United National Insurance Company ("United National") and Aetna Casualty & Surety Company ("Aetna"). United National and Aetna brought declaratory judgment actions seeking to avoid the obligation to defend or indemnify Mydrin against suits still pending in California Superior Court.

We previously vacated the judgment in United Nat'l Ins. Co. v. Mydrin, Inc., 1996 WL 436508 (9th Cir. Aug. 2, 1996), and remanded these consolidated cases to the district court to consider whether it should exercise its discretionary jurisdiction. On remand, however, the district court summarily reaffirmed its earlier decision without providing any supporting reasoning or factual findings. We hold that the district court abused ...


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