Neely v. St. Paul Fire & Marine Ins. Co., No. 77-2712

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before CHOY and KENNEDY; PALMIERI
• Citation: 584 F.2d 341
• Parties: Richard W. NEELY, Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY and Standard Oil Company of California, Defendants-Appellees.
• Docket Number: No. 77-2712
• Decision Date: 19 October 1978

Page 341

584 F.2d 341 Richard W. NEELY, Plaintiff-Appellant,
v.
ST. PAUL FIRE AND MARINE INSURANCE COMPANY and Standard Oil
Company of California, Defendants-Appellees. No. 77-2712. United States Court of Appeals,
Ninth Circuit. Oct. 19, 1978.

Page 343

Myrna J. Parker and Tom E. Wildermuth, of Maud & Wildermuth, Casa Grande, Ariz., for plaintiff-appellant.

Thomas N. Crowe, of Ryley, Carlock & Ralston, Kenneth C. Weyl, Phoenix, Ariz., for defendants-appellees.

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

Before CHOY and KENNEDY, Circuit Judges, and PALMIERI, ^* District Judge.

PALMIERI, District Judge:

In 1976 three natural-gas-powered engines used for irrigation purposes on farms owned and operated by appellant Neely became inoperable due to damage caused by contaminated lubricating oil. The oil used in these engines was purchased exclusively from appellee Standard Oil Company of California (Standard Oil). At the time an insurance policy issued to Neely by appellee St. Paul Fire and Marine Insurance Company (St. Paul) provided coverage for damage to the engines caused by vandalism. Both appellees are foreign corporations lawfully doing business in Arizona.

Neely brought suit in the Arizona Superior Court against Standard Oil and St. Paul, seeking to recover his direct and consequential damages. His theory was that either the contaminant was in the oil at the time of purchase, in which case Standard Oil would be liable, whether on the ground of strict liability, negligence, or warranty, or the contaminant was placed in the oil by a vandal, in which case St. Paul would be liable under the terms of the insurance policy. The suit was subsequently removed to the United States District Court for the District of Arizona pursuant to 28 U.S.C. § 1441(a) on the petition of both defendants, that court having jurisdiction because of the diversity of citizenship of the parties under 28 U.S.C. § 1332. Answers were filed and interrogatories were served on plaintiff by St. Paul, which were answered following a motion to compel. Motions for summary judgment were filed by defendants, to which plaintiff responded. Following a brief hearing, the district court granted the motions and accordingly dismissed the complaint. This appeal was taken to review that judgment. Our jurisdiction lies under 28 U.S.C. § 1291. We affirm.

I.

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the burden of demonstrating the absence of such a genuine issue, and for this purpose the material it lodges, and inferences therefrom, must be viewed in the light most favorable to the opposing party. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). If the movant

Page 344

satisfies his initial burden, it then rests with the opponent to set forth specific facts showing that there remains a genuine issue for trial. Fed.R.Civ.P. 56(e). No defense to an insufficient showing, however, is required. Adickes, supra,398 U.S. at 160-61, 90 S.Ct. 1598. In considering a motion for summary judgment, of course, the court decides a pure question of law and is not permitted to weigh the evidence or to judge the credibility of witnesses.

Where it is clear from the evidence presented at the hearing on a motion for summary judgment that the movant would be entitled to a directed verdict were the case to proceed to trial, the motion may properly be granted, unless the opposing party is able to offer adequate reasons why he is presently unable to present facts justifying his opposition. Doff v. Brunswick Corp.,372 F.2d 801, 805 (9th Cir.), Cert. denied, 389 U.S. 820, 88 S.Ct. 39, 19 L.Ed.2d 71 (1967). An opposing party's mere hope that further evidence may develop prior to trial is an insufficient basis upon which to justify denial of the motion. While summary judgment is improper where sufficient evidence supporting a claimed factual dispute is adduced, so as to require a jury or judge to resolve the parties' differing versions of the truth at trial, this evidence must be "significantly probative" of the disputed fact. First National Bank of Arizona v. Cities Service Co., Inc., 391 U.S. 253, 288-90, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Mutual Fund Investors v. Putnam Management Co., 553 F.2d 620, 624 (9th Cir. 1977).

II.

The following materials were before the district court at the time of the hearing on the motions for summary judgment: Neely's answers to the interrogatories served by St. Paul; affidavits of Travis Sharp and William Perry, attached to Standard Oil's motion; and an affidavit of Neely, submitted as part of his responsive papers. ¹ Perry, an employee of Standard Oil who had occasion to inspect the damaged engines in question, stated in his affidavit that the damage, in his opinion, was "caused by excessive detonation rather than inadequate lubrication (and) that the detonation most likely resulted from a volatile contaminate (Sic ) being introduced to the oil." He further stated that "no engine failures other than those involved in this action, resulting or allegedly resulting from the use of (Chevron Delo 400 Motor Oil), have been reported to (Standard Oil)." Sharp, owner of a business involved in the repair and maintenance of...