Fireman's Fund Ins. Co. v. International Market Place

• Decision Date: 11 October 1985
• Docket Number: No. 84-4417,84-4417
• Citation: 773 F.2d 1068
• Parties: FIREMAN'S FUND INSURANCE COMPANY, a California corporation, Plaintiff-Appellee, v. INTERNATIONAL MARKET PLACE, a limited partnership, Plaintiff in Intervention, v. Frank M. REED, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1068

773 F.2d 1068

FIREMAN'S FUND INSURANCE COMPANY, a California corporation, Plaintiff-Appellee, v. INTERNATIONAL MARKET PLACE, a limited partnership, Plaintiff in Intervention, v. Frank M. REED, Jr., Defendant-Appellant.

No. 84-4417.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 1985.

Decided Oct. 11, 1985.

Cabot Chrisianson, Robert J. Bucklew, Foulds, Felker, Johnson & McHugh, Anchorage, Alaska, for plaintiff-appellee.

Daniel Westerburg, Birch, Horton, Bittner, Pestinger & Anderson, Anchorage, Alaska, for defendant-appellant.

Appeal from the United States District Court for the District of Alaska.

Before CHOY, SNEED, and BRUNETTI, Circuit Judges.

CHOY, Senior Circuit Judge:

Reed was convicted in federal court of destroying a building with the use of an explosive, in violation of 18 U.S.C. Sec. 844(i). His conviction was reversed because the government had failed to show that Reed used an explosive, as required under the statute. Fireman's Fund, the insurer of the building, brought this civil action against Reed for restitution. The district court granted summary judgment for Fireman's Fund. The court held that Reed was collaterally estopped from challenging his liability because the reversal of the conviction did not affect the validity of the jury's determination that Reed had destroyed the building. Reed appeals the district court's application of collateral estoppel. We REVERSE and REMAND.

Federal law governs the collateral estoppel effect of a federal case decided by a federal court. Blonder-Tongue Laboratories v. University of Illinois Found., 402 U.S. 313, 324 n. 12, 91 S.Ct. 1434, 1440 n. 12, 28 L.Ed.2d 788 (1971).

A determination adverse to the winning party does not have preclusive effect. United States v. Cheung Kin Ping, 555 F.2d 1069, 1076 (2d Cir.1977); cf. Ornellas v. Oakley, 618 F.2d 1351, 1356 (9th Cir.1980) (the determination sought to be used was reversed and did not have preclusive effect); 1B J. Moore, Moore's Federal Practice p 0.416, at 518 (2d ed. 1984) (if the appellate court affirms on one ground used by the trial court without passing on a second ground used by the trial court, the second ground does not have preclusive effect); id. p 0.443[5.--1], at 781-83 (the judgment of a court is conclusive of only those issues whose determination supports the judgment); but cf. id. p 0.416, at 517-18 (if the appellate court reverses and remands, expressly leaving certain findings of the trial court intact, those findings may later be used if they are necessary...