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NOT FOR PUBLICATION MAR 12 2013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 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 appeal.

** The Honorable Richard D. Cudahy, Senior Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, sitting by designation.

2 There is no merit to the argument that American Family’s conduct during

the underlying trial provided preclusion of policy defenses. The district court

correctly concluded there was no Parsons violation. However, the district court

erred in holding that collateral estoppel prevents Clancy and Palmieri from

rearguing the application of exclusionary provisions in their liability coverage from

American Family.

I.

The district court properly concluded that there was no Parsons violation at

issue. Parsons involved an insurance company that hired an attorney to represent

the insured in an action for liability for assaulting a neighbor. Parsons v. Cont’l

Nat’l Am. Group, 550 P.2d 94 (Ariz. 1976). The basis for the Parsons holding,

was that the attorney, in representing both sides and using privileged information

in doing so, had breached his duty of loyalty. Id. at 98.

Parsons is inapposite to the facts here. Steve Beeghley, Clancy and Palmieri’s

counsel, was only retained by American Family shortly before trial, when

American Family learned of the suit. Clancy and Palmieri allege that the

information known to their counsel with respect to the underlying case, Cuevas, an

employee of American Family, was wrongly used as the basis for American

Family’s refusal to indemnify Clancy and Palmieri. But, the information shared

3 between Beeghley and Cuevas was information typically shared between an

insured’s attorney and the insurance company. It was not confidential information.

Beeghley himself testified that there was nothing exceptional about the information

exchanged between himself and Cuevas. He further testified that the only interest

he had in coverage was his hope that American Family would pay for some of the

damages assessed against his clients.

II.

An offensive use of collateral estoppel “occurs when the party making a claim

attempts to assert against its opponent findings made in a prior judgment to which

it was not a party.” Wetzel v. Ariz. State Real Estate Dep’t, 727 P.2d 825, 828

(Ariz. Ct. App. 1986). Collateral estoppel applies when (1) the issue is actually

litigated in the previous proceeding; (2) there is a full and fair opportunity to

litigate the issue; (3) resolution of such issue is essential to the decision; (4) there is

a final and valid decision on the merits; and (5) there is a common identity of the

parties. Hawkins v. State, Dep’t of Econ. Sec., 900 P.2d 1236, 1239 (Ariz. Ct. App.

1995).

4 The primary dispute between the parties lies with factors four and five. The

parties also dispute whether or not offensive collateral estoppel is even available in

Arizona.

Clancy and Palmieri contend that Standage Ventures, Inc. v. State, 562 P.2d 360

(Ariz. 1977), is the final word on offensive collateral estoppel, prohibiting its use.

While this is correct, American Family points out that subsequent state case law

seems to support the use of the doctrine. In Wetzel v. Arizona State Real Estate

Department, 727 P.2d 825 (Ariz. Ct. App. 1986), the court recognized that it was

departing from case law, but noted that the basis for the rule against offensive

collateral estoppel was the Restatement (First) of Judgments, which had been

“eroded by the adoption of the Restatement (Second) of Judgments.” Id. at 829.

Ultimately, we believe the law concerning offensive collateral estoppel in Arizona

is unsettled. This Court, in Davis v. Metro Productions, Inc. recognized that there

may be a shift in Arizona courts from the First Restatement view to the Second,

thereby allowing the use of offensive collateral estoppel, but that that transition

was incomplete. 885 F.2d 515, 519 (9th Cir. 1989). This Court is hesitant to

conclude that Arizona courts approve of offensive collateral estoppel.

In any event, the findings of the trial court are not sufficiently final to allow for

collateral estoppel. Clancy and Palmieri emphasize that the findings of fact and

5 conclusions of law reached during the underlying hearing were not reduced to a

final judgment. The case that Clancy and Palmieri rely upon, Campbell v. SZL

Properties, Ltd., 62 P.3d 966 (Ariz. Ct. App. 2003), is illuminating. The court in

Campbell stated that for the purpose of collateral estoppel, a final judgment

includes “any prior adjudication of an issue in another action that is determined to

be sufficiently firm to be accorded conclusive effect.” Id. at 969 (internal

quotation marks omitted). In this case, the trial court judge could have altered his

findings as they were not set down in a final judgment. Accordingly these findings

cannot be considered sufficiently firm for the purposes of estoppel.

AFFIRMED IN PART AND REVERSED IN PART. Each party shall bear

their own costs on appeal.

6

FILED

American Family Mutual v. Clancy, Case No. 11-16270 MAR 12 2013 Rawlinson, Circuit Judge, concurring:

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

I concur in the result.