                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 06 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



CURTIS OSWALT; FEDERAL                           No. 11-35676
INSURANCE COMPANY,
                                                 D.C. No. 2:08-cv-01600-MJP
                Plaintiffs - Appellees,

  v.                                             MEMORANDUM *

RESOLUTE INDUSTRIES INC,

                Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Western District of Washington
                  Marsha J. Pechman, Chief District Judge, Presiding

                            Submitted November 8, 2012 **
                                Seattle, Washington

Before:         W. FLETCHER and FISHER, Circuit Judges, and TUCKER,
                District Judge.***




          *
             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).
          ***
             The Honorable Josephine Staton Tucker, United States District Judge
for the Central District of California, sitting by designation.
      This is an appeal from the district court’s order granting a prevailing party’s

motion to enforce a supersedeas bond upon the Ninth Circuit’s affirmation of a

trial verdict. In the original bench trial, the district court found Resolute Industries,

Inc. liable for nearly $250,000 in damages to Curtis Oswalt’s boat caused by the

negligence of a Resolute employee. The Ninth Circuit affirmed. Oswalt moved to

enforce judgment against Resolute based on the supersedeas bond Resolute had

obtained prior to appeal. Resolute opposed Oswalt’s motion on the ground that the

liability of manufacturer Webasto Products NA, Inc. had not yet been determined,

and thus another party could still be found 100 percent liable; it also objected that

the case was not final under Rule 54(b). The court rejected Resolute’s arguments

and granted Oswalt’s motion. Resolute appealed. We review a district court’s

decision to execute a bond de novo. Contractors Equip. Maint. Co., Inc. ex rel.

United States v. Bechtel Hanford, Inc., 514 F.3d 899, 903 (9th Cir. 2008). We

have jurisdiction under 28 U.S.C. § 1291 and now affirm.

      Resolute summarizes the issue before us in its reply brief: “can a party be

liable for an entire judgment, when there still existed [sic] a possibility that another

party may be found 100 percent liable for the damages to the plaintiff.” The

answer is yes. In admiralty, joint and several liability applies to joint tortfeasors

just as at common law. See McDermott, Inc. v. AmClyde, 511 U.S. 202, 220-21


                                            2
(1994). “If the independent tortious conduct of two or more persons is a legal

cause of an indivisible injury, each person is jointly and severally liable for the

recoverable damages caused by the tortious conduct.” Restatement (Third) of

Torts: Apportionment Liab. § C18 (2000). The district court, affirmed by the

Ninth Circuit, has found Resolute’s independent tortious conduct to be a legal

cause of the damage to Oswalt’s boat. Oswalt v. Resolute Indus., Inc., 642 F.3d

856 (9th Cir. 2011). If the Ninth Circuit reverses the trial court’s finding that

Webasto is not liable, at most this would mean that Webasto’s independent tortious

conduct is also a legal cause of the damage to Oswalt’s boat. This would leave

Resolute and Webasto jointly and severally liable. “When, under applicable law,

some persons are jointly and severally liable to an injured person, the injured

person may sue for and recover the full amount of recoverable damages from any

jointly and severally liable person.” Restatement (Third) of Torts: Apportionment

Liab. § 10 (2000). Thus, even if Webasto and Resolute are found jointly and

severally liable, Oswalt may recover the full amount from Resolute.

      Resolute’s arguments based on Federal Rule of Civil Procedure 54(b) are

equally unpersuasive. Rule 54(b) addresses the question of a judgment’s finality

for appeal, not enforcement of judgments. See Fed. R. Civ. P. 54(a) (“‘Judgment’

as used in these rules includes a decree and any order from which an appeal lies.”).


                                           3
In this case, there has already been an appeal from a final judgment, and the district

court was merely enforcing the mandate, as it is obligated to do. United States v.

Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000) (“[L]ower courts are obliged to

execute the terms of a mandate . . . .”).

      Finally, Oswalt correctly argues that the plain language of the bond requires

that Resolute pay if either the Court of Appeals affirms or dismisses the appeal.

Courts should interpret supersedeas bonds as contracts. Contractors Equip., 514

F.3d 899, 903 (9th Cir. 2008). The language of the bond is clear, and there is no

need to look beyond it. Resolute is obligated under the bond-contract to pay

Oswalt because we have already affirmed the trial verdict.

      AFFIRMED.




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