QUEEN ANNE PARK HOMEOWNERS ASSOCIATION, а Washington nonprofit corporation, Plaintiff-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, a foreign insurance company, Defendant-Appellee.
No. 12-36021
United States Court of Appeals, Ninth Circuit
Aug. 19, 2014
763 F.3d 1232
to retaliate against a witness for providing information to law enforcement. See United States v. Maggitt, 784 F.2d 590, 593-94 (5th Cir.1986).
Officer Thompson‘s “translat[ion]” of and testimony regarding the recorded phone calls contained the only direct evidence of Wilson‘s intent to retaliate against Pitka for providing information tо law enforcement. Officer Thompson testified regarding a call between Wilson and his cousin, Gabriella Haynes, the day after the incident with Pitka. Officer Thompson testified that Wilson admitted to having hit “Donny” because “he‘s the one that started this shit.” Officer Thompson testified about another call in which “Wilson [is] talking about how they put Mr. Pitka‘s name in the paper[,]” meaning “the documents that went to the jail.” Officer Thompson also tоld the jury that Wilson stated in a call the morning of the assault that “[s]nitches can‘t go into the hallways.” Added to Officer‘s Thompson‘s testimony about the informant being “close” and the reference to the “November incident,” his speculation and professed “translat[ion]” of these “already clear statements[,]” Freeman, 498 F.3d at 905, provided a direct link between the assault and Wilson‘s intent to retaliate against Pitka for being a “[s]nitch[.]”
Aside from Officer Thompson‘s testimony, the evidence of Wilson‘s intent was minimal. Wilson was not present in the gym when Defendant Anthony Gadson and alleged co-conspirator Donte Edwards confronted Pitka about being a “snitch.” Edwards, who tеstified for the prosecution, never said that he shared with Wilson his suspicions that Pitka had been a confidential informant. Pitka himself testified that Wilson said nothing to him before, during, or after the alleged assault, and that Pitka did not know why he was attacked. Although Pitka testified that he later believed it was because the government “sen[t] paperwork in on me,” he provided no basis for his speculative conclusion. Without Officer Thompson‘s prejudicial testimony, there is a “reasonable probability that the jury would not have convicted” Wilson on Count 7. United States v. Teague, 722 F.3d 1187, 1192-93 (9th Cir.2013).
Finally, there is no question that Officer Thompson‘s testimony “seriously affected the fairness, integrity, оr public reputation of the judicial proceedings.” Vences, 169 F.3d at 613 (internal quotation marks omitted). In “offer[ing] a narrative gloss consist[ing] almost entirely of [his] personal opinions of what the conversations meant[,]” Peoples, 250 F.3d at 640, Officеr Thompson‘s unhelpful testimony “usurped the function of the jury to decide what to infer from the content of the calls,” Grinage, 390 F.3d at 750. Nothing could be more central to the integrity of judicial proceedings than the right to have the jury—not the police or the prosecution—decide a defendant‘s guilt or innocence. For these reasons, I dissent from Part III(B) of the majority opinion.
Jerret E. Sale, Bullivant Houser Bailey PC, Joseph D. Hampton, Esquire, Daniel L. Syhre, Esquire, Betts Patterson & Mines, PS, Pamela Ann Okano, Reed McClure, Seattle, WA, for Defendant-Appellee.
Before: ARTHUR L. ALARCÓN, A. WALLACE TASHIMA, and MARY H. MURGUIA, Circuit Judges.
ORDER CERTIFYING A QUESTION TO THE WASHINGTON SUPREME COURT
ALEX KOZINSKI, Chief Judge.
ORDER
This is an insurance coverage case filed in federal court pursuant to our diversity jurisdiction. The policy at issue provides coverage in certain circumstances for the “collapse” of a building, but it does not define “collapse.” The most recent relevant Washington Supreme Court case, Sprague v. Safeco Insurance Co. of America, 174 Wash.2d 524, 276 P.3d 1270 (2012), suggests that what constitutes “collapse” when the term is otherwise undefined in the insurаnce policy at issue is an open question under Washington law. The parties filed cross motions to certify that question to the Washington Supreme Court to resolve the issue. We granted the motions. We respectfully request that the Washington Supreme Court accept and decide the certified question below.
I
The Queen Anne Park is a two-building condominium in Seattle, Washington.
On August 20, 2010, the Queen Anne Park Homeowners Association (the “HOA“) filed a claim with State Farm. The HOA claimed that the Policy covered the “collapse” of a building, which the HOA interpreted to mean “a substantial impairment of the structural integrity of any portion or component of the building.” The HOA claimed that an inspection of the Queen Anne Park had “revealed sevеral areas of hidden decay” and that the HOA “believe[d] that these and other areas suffered a substantial impairment of structural integrity during [State Farm‘s] policy periods.”
On August 23, 2011, after conducting its own inspections, Stаte Farm denied the claim. State Farm concluded that “[a] loss involving collapse” had “not commence[d] in any policy term” and that various exclusions to coverage applied.
In Septembеr 2011, in the federal District Court for the Western District of Washington, the HOA filed suit against State Farm, seeking declaratory relief and damages for breach of contract. The HOA moved for summary judgment, arguing that, under Washington law, the term “collapse,” when otherwise undefined in the insurance policy at issue, means “substantial impairment of structural integrity.” The district court denied the motion. It explained its rationale as follows:
Given the reasoning of the majority and concurrence in Sprague, and the decision in Ocean Winds [Cоuncil of Co-Owners, Inc. v. Auto-Owner Insurance Co., 350 S.C. 268, 565 S.E.2d 306 (2002)], the Court concludes that, even if Washington were to adopt a relaxed standard [of collapse] that is somewhere short of “rubble on the ground,” it would require an insured seeking coverage under a collapse provision to show, in addition to a substantial impairment of structural integrity, an imminent threat of collapse.
The court concluded that the HOA could not meеt this standard.
II
As noted earlier, the most recent relevant Washington Supreme Court case concerning what constitutes “collapse” under Washington law is Sprague. The issue in Sprague was whether a Safeco homeowners policy covered losses to a residential deck system stemming from construction and rot issues. The policy “provided coverage for all losses that were not excluded,” and “did not define the term ‘collapse’ nor explicitly address ‘collapse’ as a covered or excluded loss.” Sprague, 276 P.3d at 1271.
The Washington Supreme Court concluded that the policy excluded the losses. Id. at 1273. The five-justice majority expressly declined to address what constitutes “collapse” under Washington law. Id. at 1272 (“We need not decide whether the deck had collapsed due to the loss of structural integrity even though it had not fallen to the ground.“). Two justicеs filed a concurrence, stating “it is apparent that
III
Washington‘s Federal Court Local Law Certifiсate Procedure Act,
Certification is appropriate here because the dispositive issue is the meaning of the term “collapse” in the insurance policy at issue. There is no clear and controlling Washington precedent on pоint, and a resolution of the issue by the Washington Supreme Court would be determinative of the outcome in this case. Additionally, the answer to the question may have far-reaching effects on individuals and entities insured under residential and commercial property insurance policies subject to Washington law.
ORDER
In light of our foregoing discussion, we respectfully certify the following question to the Washington Supreme Court:
What does “collapse” mean under Washington law in an insurance policy that insures “accidental direct physical loss involving collapse,” subject to the policy‘s terms, conditions, exclusions, and other prоvisions, but does not define “collapse,” except to state that “collapse does not include settling, cracking, shrinking, bulging or expansion?”
We do not intend to restrict the Washington Supreme Court‘s consideration of this issue, and we recognize that it may reformulate the question.
The Clerk of Court is hereby ordered to transmit to the Washington Supreme Court, under official seal of the United States Court of Appeals for the Ninth Circuit, a copy of this order and all briefs and excerpts of record in this matter, pursuant to
Further proceedings in this court are stayed pending the Washington Supreme Court‘s decision whether it will acceрt certification and, if so, this court‘s receipt of the answer to the certified question. The parties shall file a joint status report in this court no more than seven days after the Washington Supreme Court aсcepts or rejects certification. If the Washington Supreme Court accepts the certified question,
It is so ORDERED.