                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               FEB 16 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

AXIS SURPLUS INSURANCE CO.,                      No. 08-36055

             Plaintiff - Appellee,               D.C. No. 3:07-cv-00292-MO

  v.
                                                 MEMORANDUM *
LEBANON HARDBOARD, LLC,

             Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                           Submitted February 4, 2010**
                               Seattle, Washington

Before: RYMER, GOULD and BYBEE, Circuit Judges.

             Defendant-appellant Lebanon Hardboard, LLC (“Lebanon”) appeals

from the district court’s grant of partial summary judgment holding that a partially-

deconstructed Former Production Building (“FPB”) did not qualify as “Business


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Personal Property” under Lebanon’s insurance policy with plaintiff-appellant Axis

Surplus Insurance Co. (“AXIS”). Lebanon also challenges the amount of the

attorney fees it was awarded by the district court. We affirm in all respects.

      We review de novo the district court’s ruling granting summary judgment.

Wedges/Ledges of Cal. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). Under

Oregon law, the terms of the insurance contract between AXIS and Lebanon

control whether there was coverage for the FPB at the time of the fire. See OR.

REV. STAT. § 742.016(1). This is a question of law in which our goal is to

ascertain the parties’ intent based on the terms of the policy. Hoffman Constr. Co.

v. Fred S. James & Co., 836 P.2d 703, 706 (Or. 1992). An insurance policy is to

be construed as a whole and, insofar as possible, is to be interpreted so as to give

meaning to all its terms. See id. at 707.

      The policy here describes two types of “Covered Property”: (1)

“Building[s],” as described in the declarations, and (2) “Business Personal

Property,” of specified types, located in or near the covered “Buildings.” Absent

evidence to the contrary, “[t]he terms of a writing are presumed to have been used

in their primary and general acceptation.” OR. REV. STAT. § 42.250; see Purcell v.

Wash. Fidelity Nat’l Ins. Co., 30 P.2d 742, 746 (Or. 1934). The FPB, which was

formerly insured as a building and had not been fully deconstructed at the time of


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the fire, still qualified as a “building” as that term is generally used. Even though

the FPB had no running water, holes in the walls, and a largely-deconstructed roof,

the FPB still had a frame, four walls, part of a roof, and other features that would

lead a lay observer to deem it a “Building” and not “Business Personal Property.”

Moreover, the insurance contract explicitly includes “[a]dditions under

construction, alterations and repairs to the building or structure[,]” and

“[m]aterials, equipment, supplies, and temporary structures . . . used for making

additions, alterations or repairs to the building or structure” within “Building,”

rather than “Business Personal Property,” coverage. If Lebanon wished to insure

the FPB during its deconstruction, it should not have removed the FPB from its

declarations as a “Building.”1

      Oregon law required the district court to award Lebanon “a reasonable

amount . . . as attorney fees,” OR. REV. STAT. § 742.061(1). In determining what

constituted “a reasonable amount,” the district court was required to consider

sixteen statutory factors. OR. REV. STAT. § 20.075(2); see id. § 20.075(1)(a)-(h)

and (2)(a)-(h) (listing the sixteen factors). These factors included “[t]he objective

      1
          Lebanon also argues that even if the FPB were a “building,” it would still
constitute “business personal property” because a constructive severance occurred.
We reject this argument, as Lebanon simply gave AXIS notice of its own intention
to treat the FPB as business personal property; the two parties had no agreement to
this effect. See Pepin v. City of North Bend,198 F. Supp. 644 (D. Or. 1961).

                                          -3-
reasonableness of the claims and defenses asserted by the parties,” id.

§ 20.075(1)(b), “[t]he time and labor required in the proceeding, the novelty and

difficulty of the questions involved in the proceeding and the skill needed to

properly perform the legal services,” id. § 20.075(2)(a), and “[t]he amount

involved in the controversy and the results obtained,” id. § 20.075(2)(d).

      The district court carefully weighed each statutory factor before ultimately

awarding $97,645.00 in fees and $982.57 in related nontaxable expenses to

Lebanon. As the district court correctly recognized, Lebanon’s claims were

somewhat weak, see id. § 20.075(1)(b), the legal issue in this proceeding—a rather

straightforward insurance dispute—was not particularly novel or difficult, see id.

§ 20.075(2)(a), and Lebanon’s attorneys secured only an $8,500 judgment, despite

seeking between $100,000 and $200,000, see id. § 20.075(2)(d). There is simply

no merit to Lebanon’s contention that the district court abused its discretion in

awarding Lebanon “only” $97,645.00 in attorney fees.

      AFFIRMED.




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