                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 05 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TARLETON LLC, an Oregon limited                  No. 14-35540
liability company,
                                                 D.C. No. 3:12-cv-00989-AC
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

STATE FARM FIRE AND CASUALTY
INSURANCE COMPANY, an Illinois
insurance business corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    John V. Acosta, Magistrate Judge, Presiding

                     Argued and Submitted November 9, 2016
                                Portland, Oregon

Before: McKEOWN, W. FLETCHER, and FISHER, Circuit Judges.

      Tarleton LLC (“Tarleton”) appeals from the district court’s order granting

summary judgment to State Farm Fire and Casualty Insurance Company (“State

Farm”). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review the district court’s grant of summary judgment de novo.

Evanston Ins. Co. v. OEA, Inc., 566 F.3d 915, 918 (9th Cir. 2009). Summary

judgment is appropriate if, viewing the evidence in the light most favorable to

Tarleton, there is no genuine issue of material fact and State Farm is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a); Olden v. Idaho State Bd. of

Med., 363 F.3d 916, 922 (9th Cir. 2004).

      State Farm is entitled to summary judgment. Tarleton’s insurance policy

covers collapses that were “directly and immediately caused only by . . . the weight

of contents . . . [and] equipment.” Tarleton’s expert, Wade Younie, identified in

his expert report elevated July temperatures as a contributing cause of the 2011

collapse of Truss D. There is thus no genuine dispute that a factor other than the

weight of contents and equipment directly and immediately caused the collapse.

On Tarleton’s own theory of causation, the insurance policy cannot apply.

      Tarleton argues that summary judgment is improper because Younie later

submitted an affidavit withdrawing his opinion, stated in his expert report, that heat

was a “likely trigger” of the truss collapse. However, the circumstances

surrounding the withdrawal did not require the district court to credit Younie’s

change of opinion. Younie sought to retract a dispositive expert opinion without

any new evidence, only after a motion for summary judgment was made, and only

after a district court decision interpreting similar insurance policy language alerted

                                           2
Tarleton to the damaging nature of Younie’s conclusion in his expert report. See

Bjugan v. State Farm Fire & Cas. Co., 969 F. Supp. 2d 1283, 1291 (D. Or. 2013).

Under these circumstances, the issue of fact created by Younie’s later-submitted

affidavit cannot reasonably be characterized as “genuine.” The district court

therefore did not err in disregarding the heat-related portions of Younie’s affidavit.

      AFFIRMED.




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