American Family Mutual Insuran v. Cara Clancy

MEMORANDUM **

Clara Clancy and Jon Palmieri build and sell homes. Clancy was a licensed general contractor, and was responsible for building the Phoenix, Arizona home at issue in the underlying suit. Clancy lived in the home until it was sold. During that time, Clancy and Palmieri became aware of several significant defects with the home, including a leaky roof, “breached” windows and the presence of mold. Despite their knowledge of these and other problems, Clancy and Palmieri concealed these problems when they sold the house to Barry and Kristine Shapiro. The Shapiros sued in Arizona and a bench trial was held in Maricopa County Superior Court. The trial court issued findings of fact and conclusions of law adverse to the defendants. However, the parties settled before a final judgment was announced.

American Family Mutual is the insurer for Clancy and Palmieri. American Family filed for declaratory relief alleging that its insurance policies do not provide coverage for the claims alleged in the Shapiro suit. It argued that the trial court’s findings of fact collaterally estopped Clancy and Palmieri from re-litigating this issue. The district court agreed. Clancy and Palmieri…

concurring:

I concur in the result.

FILED

NOT FOR PUBLICATION MAR 12 2013

MOLLY C. DWYER, CLERK

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

FOR THE NINTH CIRCUIT

AMERICAN FAMILY MUTUAL No. 11-16270

INSURANCE COMPANY,

D.C. No. CV-09-01077-PHX-ROS Plaintiff-counter-defendant - Appellee,

MEMORANDUM *

v.

CARA CLANCY, wife, Trustee of the Palmieri Trust, trustee of the PC Family Trust; JON PALMIERI, husband, Trustee of the Palmieri Trust, trustee of the PC Family Trust,

Defendants-counter-claimants - Appellants.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, Chief District Judge, Presiding

Argued & Submitted December 3, 2012 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: CUDAHY,** TROTT, and RAWLINSON, Circuit Judges.

Clara Clancy and Jon Palmieri build and sell homes. Clancy was a licensed

general contractor, and was responsible for building the Phoenix, Arizona home at

issue in the underlying suit. Clancy lived in the home until it was sold. During

that time, Clancy…