Wells Cargo, Inc. v. Transport Insurance Company

Filing 131

MEMORANDUM DECISION AND ORDER denying 112 Motion for Certification of Questions of Law to the Idaho Supreme Court, or in the Alternative, Certification for Interlocutory Appeal to the Ninth Circuit. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WELLS CARGO, INC., a corporation,
Case No. 4:08-cv-00491-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
TRANSPORT INSURANCE
COMPANY, a corporation,
Defendant.

INTRODUCTION
The Court has before it Transport Insurance Company’s Notice of Motion and
Motion for Certification of Questions of Law to the Idaho Supreme Court, or in the
Alternative, Certification for Interlocutory Appeal to the Ninth Circuit (Dkt. 112). The
Court has determined that the decisional process will not be sufficiently aided by oral
argument. Accordingly, the Court will decide the motion based on the briefs. For the
reasons explained below, the Court will deny the motion.
BACKGROUND
The Court recently issued a Memorandum Decision and Order concluding that
Transport has a duty to defend Wells Cargo in the underlying environmental proceeding
under certain insurance policies, that the amounts paid in connection with the RI/FS

MEMORANDUM DECISION AND ORDER - 1

constitute defense costs, and that Idaho law applies to the foregoing two issues. In that
decision, the Court also indicated that CERCLA administrative proceedings initiated by
PRP letters constitute “suits” under the terms of the insurance policies.
Transport now wants the Court to certify two questions addressed in that decision
to the Idaho Supreme Court or Ninth Circuit Court of Appeals. The first question is
whether, under Idaho law, a non-judicial administrative proceeding under CERCLA
constitutes a “suit” as that term is used in the insurance policies? The second question is
whether, under Idaho law, the amounts associated with and paid in connection with an
RI/FS during the course of a non-judicial administrative proceeding under CERCLA
constitute “defense costs” under the terms of the Transport policies?
LEGAL STANDARD
A United States district court may certify any interlocutory order for appeal to the
circuit court if: (1) the order “involves a controlling question of law;” (2) “as to which
there is substantial ground for difference of opinion;” and (3) “that an immediate appeal
of the order may materially advance the ultimate termination of the litigation.” 28 U.S.C.
§ 1292(b). Idaho Appellate Rule 12.3 states that a federal district court may certify a
question of law to the Idaho Supreme Court if (1) “[t]he question of law certified is a
controlling question of law . . . as to which there is no controlling precedent in the
decisions of the Idaho Supreme Court,” and (2) “[a]n immediate determination of Idaho
law with regard to the certified question would materially advance the orderly resolution
of the litigation . . . .” Idaho App. R. 12.3(a).
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ANALYSIS
1.

Motion to Certify Questions to Ninth Circuit
Pursuant to the final judgment rule contained in 28 U.S.C. § 1291, federal courts of

appeal have jurisdiction over appeals from all final decisions of federal district courts.
Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir. 2010); 28 U.S.C. § 1291. Typically,
a party may appeal only from orders which “end[ ] the litigation on the merits and leave[ ]
nothing for the court to do but execute the judgment.” Id. (Internal citation omitted). A
narrow exception to the final judgment rule is found in 28 U.S.C. § 1292(b). Id. Transport
does not satisfy that narrow exception.
As explained above, a federal district court may certify any interlocutory order for
appeal to the circuit court if: (1) the order “involves a controlling question of law;” (2) “as
to which there is substantial ground for difference of opinion;” and (3) “that an immediate
appeal of the order may materially advance the ultimate termination of the litigation.” 28
U.S.C. § 1292(b). Section 1292(b) should be used only in exceptional situations where
allowing an interlocutory appeal would avoid protracted and expensive litigation. In re
Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1981). Here, the questions
presented by Transport do not involve a controlling question of law, and there is no
substantial ground for difference of opinion.
A question of law is controlling when “resolution of the issue on appeal could
materially affect the outcome of the litigation in the district court.” Id. at 1026. This
typically involves fundamental determinations like who are the necessary proper parties,
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whether jurisdiction is proper, or whether state or federal law applies. Id. (Internal citation
omitted). Here, the question of wether the CERCLA proceeding constitutes a “suit” that
triggers Transport’s duty to defend, and whether RI/FS expenses are defense or indemnity
expenses, do not meet this standard. They are not determinative of whether Wells Cargo
will prevail on its claims for a declaration that Transport has a duty to indemnify. They
relate to the ongoing duty to defend while the case is pending.
Additionally, there is no substantial ground for difference of opinion on these
issues. Courts must examine the extent to which a controlling law is unclear in order to
determine if a substantial ground for difference of opinion exists under § 1292(b). Couch,
611 F.3d at 633. “Courts traditionally will find that a substantial ground for difference of
opinion exists where the circuits are in dispute on the question and the court of appeals of
the circuit has not spoken on the point, if complicated questions arise under foreign law,
or if novel and difficult questions of first impression are presented.” Id. (Internal
quotations omitted). A substantial difference of opinion is not present simply because a
court is the first to rule on the particular question or just because one party argues that one
precedent is controlling. Id.
Here, the Ninth Circuit has already applied Idaho’s plain meaning doctrine to
determine that a PRP letter is similar to a complaint, and is therefore the effective
commencement of a suit. Aetna Cas. & Sur. Co., Inc. v. Pintlar Corp., 948 F.2d 1507,
1517 (9th Cir. 1991). Transport suggests that there is a post-Pintlar split of authority in
Idaho on the issue, and that the Ninth Circuit should revisit Pintlar in light of those
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authorities. Without a definitive take on the issue by the Idaho Supreme Court, the Ninth
Circuit would be in no better position to address the issue today than it was when it issued
Pintlar. Moreover, a section 1292(b) interlocutory appeal is not a tool for asking the
Ninth Circuit to revisit its earlier precedent.
There is also no substantial ground for difference of opinion concerning the
Court’s determination that RI/FS costs are generally defense costs. Idaho courts may not
have addressed the issue, but as noted above, a substantial difference of opinion is not
present simply because a court is the first to rule on the particular question. Couch, 611
F.3d at 633. Moreover, the Court disagrees with Transport’s assertion that Pintlar holds
that RI/FS expenses are not defense costs. The Court does not read Pintlar to say that. In
Pintlar, the Ninth Circuit rejected the insurers argument that damages do not include
equitable relief; it did not state that RI/FS expenses are not defense costs.
Accordingly, the Court finds there is no question of controlling law upon which a
substantial ground for difference of opinion exists. An immediate appeal of the Court’s
earlier order will not materially advance the ultimate termination of the litigation. The
Court will not sanction an interlocutory appeal as a means of asking the Ninth Circuit to
reconsider its earlier decision in Pintlar.
2.

Motion to Certify Questions to Idaho Supreme Court
The questions presented by Transport also do not satisfy Idaho Appellate Rule

12.3(a). The Court may certify a question of law to the Idaho Supreme Court if (1) “[t]he
question of law certified is a controlling question of law . . . as to which there is no
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controlling precedent in the decisions of the Idaho Supreme Court,” and (2) “[a]n
immediate determination of Idaho law with regard to the certified question would
materially advance the orderly resolution of the litigation . . . .” Idaho App. R. 12.3(a). As
explained above, the issues presented by Transport do not involve controlling questions
of law. Thus, the first prong of the test is not met.
ORDER
IT IS ORDERED:
1.

Transport Insurance Company’s Notice of Motion and Motion for
Certification of Questions of Law to the Idaho Supreme Court, or in the
Alternative, Certification for Interlocutory Appeal to the Ninth Circuit (Dkt.
112) is DENIED.

DATED: February 13, 2012

Honorable B. Lynn Winmill
Chief U. S. District Judge

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