In Re Donald MacNeil in Re Sharlee MacNeil Debtors. American State Bank Cit Financial Services, Inc. v. Thomas G. Marks
907 F.2d 903
9th Cir.
1990
Check Treatment

*1 may be inferred from to harm that intent as a matter of with a minor contact

sexual the in

law, the intent of irrespective of See, e.g., Farm 21 at 5. State

sured.” CR Abraio, Casualty v.

Fire and Co. law); Cir.1989) (California 619, 621-23 Abbott, 204 Cal. v. Exchange

Fire Ins. 1023-24, Cal.Rptr. 620

App.3d Williams,

(1988); Rodriguez v. (1986); P.2d 630-31

Wash.2d Malcolm, 128 v. Mutual Ins. Co. Vermont (1986); 802-03 Illi A.2d N.H. G., 379 v. Judith Farmers Ins. Co.

nois (Minn.App.1986);Line 641-42

N.W.2d Berdish, Mich.App. baugh (1985); CNA N.W.2d

McGinnis, 282 Ark. 666 S.W.2d Su (1984). the Nevada conclus reach the same

preme Court

ion.2

Conclusion made injury claims

Accordingly, his are not covered

against Smith court’s policy. The district

homeowners in favor of summary judgment

grant of affirmed. Farm is MacNEIL; In re Sharlee Donald

In re MacNeil, Debtors. BANK; CIT AMERICAN STATE Services, Inc., Beaverton, Or., Berman, ap- M. John Appellants, State Bank. pellant American Hess, Becker, Hess, & Port- Hunt Lee M. MARKS, Appellee. Thomas G. land, Or., appellant Financial Ser- vices, Inc. Appeals, States Court Waggoner, W. Call and James James Ninth Circuit. Wada, Bogrand & Farleigh, Waggoner, 6, 1990. March Argued and Submitted Or., Portland, appellee, Georgeff, Marks, Trustee. Thomas G. precisely Nevada has reached court in special deference we afford no 2. construing Ins. Co. v. See Allstate district courts conclusion. of federal the same decisions sit, (D.Nev.1988). they Foster, we take F.Supp. state in which law of the one fact that at least some comfort *2 904 dissenting: WALLACE, Judge, WALLACE, Circuit SKOPIL and

Before Judges. BRUNETTI, Circuit majority’s respectfully I dissent im- that there is a constitutional

conclusion of this case. resolution pediment to our PER CURIAM: opinion doc advisory conclude I Ap the 1989 August On majority inti the than trine is narrower (“BAP”) the Ninth Circuit for pellate Panel nonjustici not become A case does mates. of the United States a decision affirmed assump the simply because it involves able of Ore the District for Bankruptcy Court matters. legal or underlying factual tion of Court”) un holding that (“Bankruptcy gon 634 pointed out Chadha As we 726(b), Chapter 7 adminis der 11 U.S.C. § Cir.1980), (9th 'd, 462 U.S. F.2d 408 aff priority entitled to are expenses trative (1983), 317 77 L.Ed.2d S.Ct. 103 superpriori granted 11 claims Chapter over in which disputes “adjudicate often courts 507(b). Ameri 11 U.S.C. ty § status conceded.” Id. are legal or factual matters MacNeil), (In re v. Marks Bank can State Indeed, frequently assume courts at 419. 1989) (per (9th BAP Cir. 768 102 B.R. legal question predicate deciding a without conclusion, both that curiam). reaching In subsidiary inquiry to a simply move on and de and the BAP Bankruptcy Court the See, e.g., Edel dispute. resolves the which underlying factual the address clined to Airlines, 892 F.2d 839 v. Western man cred the claims of secured dispute whether Cir.1989) (9th (decliningto address (“ASB”) and Bank itors American in her right employee property had airline (“CIT”) enti Services deciding that employment and continued 507(b) superpriority. tled to section did, all the had if she received she even Bankruptcy Court determined the Had due). process she was to were entitled nor CIT ASB that neither controversy case, clear is a this there In we above claims the superpriority Chap- and concerning whether CIT ASB’s legal the to resolve asked not now be would priority status over 11 claims have ter is superpriority a such question whether Al- expenses. Chapter 7 administrative Chapter 7 administrative to subordinate this has two issue though the resolution factual of such a In the absence claims. Chapter claims their subparts —whether by court determination, any expression this and, so, status, if wheth- superpriority have claims hierarchy of these concerning the priority has superpriority claim er that rendering of advis the constitute would expenses, the Chapter administrative advising what i.e., “an opinion, ory the order not dictate does Constitution state upon hypothetical a be the law subparts must addressed. those be which Bay Regional v. East Vieux of facts.” upon of the two cases relied Neither (9th Cir. Dist., Park In me majority persuades otherwise. v. Ha 1990), quoting Aetna Life District, Bay Regional Park v. East Vieux 461, 464, 57 S.Ct. worth, 300 U.S. Cir.1990), no empow (1937). We are not 81 L.Ed. appellants controversy because or case opinions. North See ered issue against quiet a title action brought Rice, U.S. Carolina park did park district when (1971) (per L.Ed.2d 413 S.Ct. property in the interest legal valid hold curiam). dispute. subject of was the which is the BAP Accordingly, the decision decla- We concluded that at 1572-73. “[a] matter is REMAND- this and VACATED would be rights land as to ration factual Bankruptcy Court a ED to the is dif- case Id. at This futile.” ... of ASB the claims determination Here, underlying dis- is an there ferent. superpriority under are and CIT CIT and ASB’s priority about 507(b). section of the issue resolution and thus our would not be “futile.” presented further and REMANDED VACATED Rice, Carolina citation to North jority’s 402, 404, 244, 246, sequence in which a case or is 92 S.Ct. 404 U.S. curiam), (1971)(per is likewise justiciabili- resolved does not determine its L.Ed.2d on the Rice was decided unpersuasive. ty- at Id. at 92 S.Ct.

basis of mootness. reasons, For these I believe priority sta- claims of 405. ASB and CIT’s presents justiciable case case or contro- *3 clearly not moot. tus are versy obligation which we have an to de- (BAP) Appellate However, Panel’s majority The cide. since the dis- our decision in forego expression here was similar to agrees, my decision I will of Ruiz v. Escobar I respect- views on the merits of this case. Cir.1988) (en banc). panel held The initial fully dissent.

(1) Act Equal Access to Justice

(EAJA) attorneys’ provides for awards of (2) Es- deportation proceedings, but

fees attorneys’ Ruiz was not entitled to

cobar prevailing he was not the

fees because held at 1022. The en banc court

party. Id. apply deporta- did indeed that the EAJA NATIONAL LABOR RELATIONS at 1029. The dissent tion Id. BOARD, Petitioner, majority had rendered contended that the issue because “prevailing Escobar Ruiz was NATIONAL MEDICAL HOSPITAL OF disposed of the case and party” COMPTON, Valley Dominguez dba applica- to reach the issue of no reason Hospital, Respondent. bility Id. at 1031. of the EAJA. argument, stating: rejected this jority Court, Appeals, problem whatso- States no constitutional We see claim. The dis- Ninth deciding this Circuit. ever with Ruiz and the INS Escobar between Argued and Submitted Nov. 1989. Ruiz is entitled to whether Escobar 1990. presents a case or attorneys clearly fees meaning Arti- within Amended on Denial of As III.... cle Rehearing Aug. in the dissenter’s problem, real The ques-

view, have decided the is that we covered the claim is

tion whether deciding whether before

statute under its terms. prevail can

claimant have followed is the order we order in which logical and reasonable presented to us. address the issues applies, it matters the statute

Unless condi- meet the the claim would recovery.

tions majority at 1029 n. 15. Similar Ruiz, BAP decided

opinion Escobar rela- question of the the broader

to address Chapter 7 administrative priority

tive superpriority claims Chapter 11

claims and question narrower addressing the

before actually and CIT’s

whether ASB superpriority. the most may not be

ordering of the issues

desirable, Ruiz teaches Escobar