CHARLES RENFREW, Ret. Futures Representative to the Western Asbestos Settlement Trust v. Hartford Accident and Indemnity Company

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NOT FOR PUBLICATION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
CHARLES RENFREW, Ret. Futures
Representative to the Western Asbestos
Settlement Trust; THE TRUST
ADVISORY COMMITTEE TO THE
WESTERN ASBESTOS SETTLEMENT
TRUST,
Plaintiffs - Appellees,
THE WESTERN ASBESTOS
SETTLEMENT TRUST,
Plaintiff-intervenor -
Appellee,
v.
HARTFORD ACCIDENT AND
INDEMNITY COMPANY,
Defendant - Appellant.
No. 09-17290
DC No. 4:08 cv 4127 PJH
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted December 7, 2010
FILED
DEC 20 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Robert E. Cowen, Senior United States Circuit Judge**
for the Third Circuit, sitting by designation.
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San Francisco, California
Before: COWEN, TASHIMA, and SILVERMAN, Circuit Judges.**
Hartford Accident and Indemnity Company (“Hartford”) appeals the district
court’s affirmance of the bankruptcy court’s order granting Appellees’ motion for
partial summary judgment and issuing a permanent injunction. We have
jurisdiction under 28 U.S.C. § 158(d)(1), and we affirm.
1. The terms “review” and “audit” do not necessarily imply rights to
disseminate or use for unlimited purposes the information that is reviewed and
audited. Furthermore, the extrinsic evidence in this case supports the bankruptcy
court’s conclusion that the parties did not intend those terms in the Settlement
Agreement and Release (the “Settlement”) to encompass such rights.
2. The bankruptcy court correctly considered extrinsic evidence in its
interpretation of the Settlement. See Pac. Gas & Elec. Co. v. G.W. Thomas
Drayage & Rigging Co., 442 P.2d 641, 644-46 (Cal. 1968). Because the terms
“review” and “audit” do not necessarily encompass the unlimited use of the audited
and reviewed information, the bankruptcy court’s interpretation of Section 14.1 of
the Settlement based on extrinsic evidence did not “add to, detract from, or vary

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the terms of” that agreement. Id. at 645. It did not constitute an abuse of
discretion on the part of the bankruptcy court to admit the declaration of Alan
Brayton, see DP Aviation v. Smiths Indus. Aerospace & Def. Sys. Ltd., 268 F.3d
829, 836 (9th Cir. 2001), because the out-of-court statement described in that
declaration was not submitted “to prove the truth of the matter asserted,” Fed. R.
Evid. 801(c), but instead was submitted to show the mind-set and knowledge of the
parties at the time of negotiation. See United States v. Castro, 887 F.2d 988, 1000
(9th Cir. 1989).
3. There is no “rigid rule” prohibiting a trial court from interpreting an
ambiguous contract on summary judgment. San Diego Gas & Elec. Co. v. Can.
Hunter Mktg. Ltd., 132 F.3d 1303, 1307 (9th Cir. 1997). Summary judgment was
appropriate in this case because there was no “genuine issue of material fact”
presented by the extrinsic evidence, Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v.
Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983), and because any ambiguity in
the Settlement language could not be resolved in a manner reasonably consistent
with Hartford’s position, see S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885,
889 (9th Cir. 2003); San Diego Gas & Elec. Co., 132 F.3d at 1307.
4. Because the bankruptcy court correctly interpreted Section 14.1 of the
Settlement and based the injunction on that interpretation, it is unnecessary for us

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to determine whether trust claimant information is confidential under California
law.
5. The bankruptcy court did not abuse its discretion by setting a six-
month limit on Hartford’s retention of audit materials. See Walters v. Reno, 145
F.3d 1032, 1047 (9th Cir. 1998). In the event Hartford is unable reasonably to
complete the audit within the six-month period provided in the injunction, it may,
of course, move for modification of the bankruptcy court’s order.
AFFIRMED.

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