NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

NOV 13 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

CAMPBELL GLOBAL, LLC, a Delaware No. 18-35337 limited liability company; BASCOM SOUTHERN, LLC, a Delaware limited D.C. No. 3:16-cv-02091-MO liability company,

Plaintiff-Appellants, MEMORANDUM*

v.

AMERICAN STATES INSURANCE CO.,

an Indiana corporation; AMERICAN

ECONOMY INSURANCE COMPANY,

an Indiana corporation; GENERAL

INSURANCE COMPANY OF

AMERICA, a New Hampshire corporation; and FIRST NATIONAL

INSURANCE COMPANY OF

AMERICA, a New Hampshire corporation,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Argued and Submitted October 23, 2019

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Portland, Oregon

Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.

Campbell and Bascom appeal from a decision of the District Court granting

partial summary judgment for their insurers in a breach of insurance contract

action. At the conclusion of Campbell and Bascom’s underlying 45-year forestry

operations lease with Alabama landowners, the landowners filed an arbitration

action for breach of contract and negligence, among other claims. The arbitrators

awarded the landowners $3,506,214 in damages. Campbell and Bascom’s insurers

refused to indemnify them for that award.

Under Oregon law, when an insured seeks indemnification for damages it

owes, “what the insured had become obligated to pay as damages and whether the

insurer ultimately was liable under its policy present[] questions of law for the

court to determine by reference to (a) the [insurance] contract and (b) the judgment

and record in the underlying proceeding.” Fountaincourt Homeowners’ Ass’n v.

Fountaincourt Dev., LLC, 380 P.3d 916, 926 (Or. 2016). The insurance policies

defined “occurrence” as “an accident, including continuous or repeated exposure to

substantially the same general harmful conditions.” The Oregon Supreme Court

has held that “‘accident’ has a tortious connotation. Damage solely caused by

2 failure to perform a contract is not recoverable in tort.” Kisle v. St. Paul Fire &

Marine Ins. Co., 495 P.2d 1198, 1200 (Or. 1972).

The arbitration award contained the finding that Campbell and Bascom acted

deliberately and in bad faith. For example, they planted substandard seedlings on

the leased land while planting improved seedlings on their own, and they failed to

fix deficiencies in the land despite receiving notice of those deficiencies several

years prior to the expiration of the lease. The actions to which the arbitration award

attributed damages cannot fairly be described as negligent, and therefore were not

a covered “occurrence” under the policies. See Oak Crest Const. Co. v. Austin Mut.

Ins. Co., 998 P.2d 1254, 1257–58 (Or. 2000).

Further, in the paragraph of the arbitration award that enumerates the

damages, the arbitrators (a) cite Campbell and Bascom’s contractual requirement to

return the lands in “good condition,” (b) state that Campbell and Bascom breached

this contractual requirement, and (c) conclude that the property owners suffered

damages “due to” this breach. This is a clear statement that the damages for which

Campbell and Bascom seek indemnification sound in contract. Campbell and

Bascom did not persuasively argue that the arbitration award sounded in

negligence.

3 The arbitrators awarded attorneys’ fees as damages for breach of contract,

which the District Court correctly interpreted not to come within the policies’

coverage. Furthermore, the District Court properly denied Campbell and Bascom’s

motion for reconsideration, which largely restated their previous arguments. In

general, parties may not call on the arbitrators to explain their arbitration award

after the fact.

AFFIRMED.

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