FILED

NOT FOR PUBLICATION JUN 11 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

CLACKAMAS COUNTY, a political No. 11-35063 subdivision of the State of Oregon, D.C. No. 3:07-cv-00780-PK Plaintiff - Appellant,

v. MEMORANDUM *

MIDWEST EMPLOYERS CASUALTY

COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the District of Oregon Paul J. Papak, Magistrate Judge, Presiding

Submitted January 13, 2012 ** Seattle, Washington

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and MOLLOY, District Judge.***

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. Appellant Clackamas County, Oregon (the County) challenges the

Magistrate Judge’s grant of summary judgment in favor of Appellee Midwest

Employers Casualty Company (Midwest). The County purchased an insurance

policy for workers’ compensation and employers’ liability indemnity (the Policy)

from Midwest.

The County subsequently filed a civil action against Midwest for breach of

contract. The Magistrate Judge held that no coverage existed under the Policy for

claims against the County and its agencies, but that coverage could exist for claims

made by the individual defendants for indemnification. Midwest then filed a

Motion for Summary Judgment as suggested by the court, which was granted. The

court concluded that the County had not carried its burden of producing evidence

from which a jury could determine damages attributable to the covered claims.

Because the County offered no evidence to show what portion of the

settlement was indemnification of the individual employees, any apportionment

determination would be completely speculative. As the Magistrate Judge noted,

the settlement agreement did not discuss what amount went to which claims. In

addition, the County offered no paperwork or accounting tracing the funds used to

indemnify the individual employees.

2 The County frames the issue on appeal as whether the Magistrate Judge

erred in requiring contemporaneous allocation of the settlement proceeds.

However, that was not the basis of the Magistrate Judge’s ruling. Instead, the

Magistrate Judge found that no probative evidence of damages was presented, as

measured by satisfaction of the County’s obligation to indemnify its individual

employees.

Because the County failed to raise a material issue of fact regarding

damages, entry of summary judgment in favor of Midwest was appropriate. See

Earl, 658 F.3d at 1112.

AFFIRMED.

3

FILED

Clackamas County v. Midwest Employers 11-35063 JUN 11 2012

MOLLY C. DWYER, CLERK

CONCURRENCE, Molloy D.J. U .S. C O U R T OF APPE ALS

I concur in the disposition of this appeal, but I do not necessarily agree with

the characterization of the Magistrate’s findings.