SHILO INN, SEASIDE OCEANFRONT, LLC, (Judgment Creditor/Garnishor) v. Maryland Casualty Company, a foreign insurance company, Garnishee -

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHILO INN, SEASIDE OCEANFRONT,
LLC, (Judgment Creditor/Garnishor),
Plaintiff - Appellant,
v.
MARYLAND CASUALTY COMPANY,
a foreign insurance company,
Garnishee - Appellee,
JAMES GRANT, (Judgment Debtor),
DBA J. Grant & Associates, DBA
TouchStone Granite & Marble,
Defendant - Appellee.
No. 09-35839
D.C. No. 3:08-cv-00618-BR
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted November 1, 2010
Portland, Oregon
FILED
NOV 23 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The Honorable David C. Bury, United States District Judge for the District
of Arizona, sitting by designation.
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Before: W. FLETCHER and FISHER, Circuit Judges, and BURY, District
Judge.**
Shilo Inn, Seaside Oceanfront, LLC, appeals from the judgment entered in
favor of Maryland Casualty Company. After James Grant negligently installed
granite tub surrounds on Shilo’s property, Shilo obtained an arbitration award and
civil judgment against Grant. Shilo then filed this garnishment action against
Maryland Casualty, which had issued Grant a commercial general liability
insurance policy in effect at the time of Grant’s faulty work. The district court
granted Maryland Casualty’s motion for summary judgment. We affirm.
Under the insurance policy, Maryland Casualty agreed to “pay those sums
that the insured becomes legally obligated to pay as damages because of . . .
‘property damage’ to which this insurance applies.” The insurance applies only if
the “‘property damage’ occurs during the policy period.” “Property damage” is
defined as “[p]hysical injury to tangible property.” Thus, to trigger coverage, Shilo
was required to show physical injury to tangible property occurring during the
policy period. See St. Paul Fire & Marine Ins. Co. v. McCormick & Baxter
Creosoting Co., 923 P.2d 1200, 1210 (Or. 1996) (“If property is injured during the

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policy period, there has been an ‘occurrence,’ and coverage under the policy is
triggered.”).
Here, Shilo contends that it suffered physical injury to tangible property
because water intruded from the tub surrounds, damaging the sheet rock and
framing studs behind the granite. Shilo, however, has not presented any evidence
that this damage occurred during the policy period, which ended on June 1, 2003.
At Shilo’s Rule 30(b)(6) deposition, David Steiner testified that customers did not
begin to use the rooms until June 2003, after Grant walked off the job on June 5
and another contractor performed mitigation work on the rooms. This evidence is
uncontroverted by Shilo.
Shilo’s reliance on St. Paul is misplaced. In St. Paul, the Oregon Supreme
Court held that coverage is triggered by the occurrence of property damage,
defined here as physical injury to tangible property, even if the damage is not
discovered until later. See id. at 1211. St. Paul did not hold that mere installation
of a defective product, without resulting physical injury to property during the
policy period, triggers coverage.
Summary judgment was therefore properly granted.
AFFIRMED.

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