Clackamas County, a political subdivision of the State of Oregon v. Midwest Employers Casualty Company

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Donald W. Molloy, United States District Judge for***
the District of Montana, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLACKAMAS COUNTY, a political
subdivision of the State of Oregon,
Plaintiff - Appellant,
v.
MIDWEST EMPLOYERS CASUALTY
COMPANY,
Defendant - Appellee.
No. 11-35063
D.C. No. 3:07-cv-00780-PK
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Paul J. Papak, Magistrate Judge, Presiding
Submitted January 13, 2012**
Seattle, Washington
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and MOLLOY,
District Judge.***
FILED
JUN 11 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
Appellant Clackamas County, Oregon (the County) challenges the
Magistrate Judge’s grant of summary judgment in favor of Appellee Midwest
Employers Casualty Company (Midwest). The County purchased an insurance
policy for workers’ compensation and employers’ liability indemnity (the Policy)
from Midwest.
The County subsequently filed a civil action against Midwest for breach of
contract. The Magistrate Judge held that no coverage existed under the Policy for
claims against the County and its agencies, but that coverage could exist for claims
made by the individual defendants for indemnification. Midwest then filed a
Motion for Summary Judgment as suggested by the court, which was granted. The
court concluded that the County had not carried its burden of producing evidence
from which a jury could determine damages attributable to the covered claims.
Because the County offered no evidence to show what portion of the
settlement was indemnification of the individual employees, any apportionment
determination would be completely speculative. As the Magistrate Judge noted,
the settlement agreement did not discuss what amount went to which claims. In
addition, the County offered no paperwork or accounting tracing the funds used to
indemnify the individual employees.

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3
The County frames the issue on appeal as whether the Magistrate Judge
erred in requiring contemporaneous allocation of the settlement proceeds.
However, that was not the basis of the Magistrate Judge’s ruling. Instead, the
Magistrate Judge found that no probative evidence of damages was presented, as
measured by satisfaction of the County’s obligation to indemnify its individual
employees.
Because the County failed to raise a material issue of fact regarding
damages, entry of summary judgment in favor of Midwest was appropriate. See
Earl, 658 F.3d at 1112.
AFFIRMED.

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Clackamas County v. Midwest Employers 11-35063
CONCURRENCE, Molloy D.J.
I concur in the disposition of this appeal, but I do not necessarily agree with
the characterization of the Magistrate’s findings.
FILED
JUN 11 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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