March 29, 1993   UNITED STATES COURT OF APPEALS 
                      FOR THE FIRST CIRCUIT
                                             

No. 92-2216

       IN RE:  SAN JUAN DUPONT PLAZA HOTEL FIRE LITIGATION.
                                             

               HOLDERS CAPITAL CORPORATION, ET AL.,
                   Cross-Claimants, Appellants,

                                v.

           CALIFORNIA UNION INSURANCE COMPANY, ET AL.,
                   Cross-Defendants, Appellees.
                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Raymond L. Acosta, U.S. District Judge].
                                                      
                                              

                              Before

                  Selya and Cyr, Circuit Judges,
                                               

                   and Fuste,* District Judge.
                                             

     Gary L. Bostwick, with  whom R. Lance Belsome was  on brief,
                                                  
for appellants.
     Ralph W. Dau  and Andrew K. Epting, Jr.,  with whom Peter B.
                                                                 
Ackerman,  Jeffrey  W.  Kilduff,   O'Melveny  &amp;  Myers,  Raul  E.
                                                                 
Gonzalez-Diaz,  A.J. Bennazar-Zequeira,  Gonzalez &amp;  Bennazar, G.
                                                                 
Trenholm Walker, Wise &amp; Cole, Homer L. Marlow, William G. Liston,
                                                                
Marlow, Shofi,  Connelly, Velerius, Abrams, Lowe &amp; Adler, Paul K.
                                                                 
Connolly, Jr., Damian R. LaPlaca,  LeBoeuf, Lamb, Leiby &amp; MacRae,
                                                                
Deborah A. Pitts, Hancock, Rothert &amp; Bunshoft, Lon Harris, Harris
                                                                 
&amp;  Green, Bethany  K.  Culp, Patrick  McCoy, Oppenheimer  Wolff &amp;
                                                                 
Donnelly,  Stuart W. Axe, Lester, Schwab, Katz &amp; Dwyer, Francisco
                                                                 
J.  Colon-Pagan, Adrian  Mercado,  Mercado &amp;  Soto, Marcos  Perez
                                                                 
Cruz,  Virgilio  Mendez   Cuesta,  Ernesto  Rodriguez-Suris,  and
                                                           
Latimer, Biaggi, Rachid, Rodriguez-Suris &amp; Godreau were on brief,
                                                  
for appellees.

                                             

                          March 29, 1993
                                             
          
*Of the District of Puerto Rico, sitting by designation.

          SELYA Circuit Judge.  We approach once more the lair of
          SELYA Circuit Judge.
                             

the fabled "litigatory  monster," In re Recticel  Foam Corp., 859
                                                            

F.2d 1000, 1001 (1st Cir. 1988), spawned by the deadly fire which

engulfed  the San Juan Dupont  Plaza Hotel on  December 31, 1986.

In  this appeal, three  entities interested in  the ownership and

operation of  the hotel  contest the  district  court's entry  of

summary judgment in favor  of a group of seventeen  insurers (the

pre-fire  insurers) whose  comprehensive general  liability (CGL)

and  excess  insurance  policies  had  expired  before  the  fire

occurred.1  Finding no error of law, we affirm.

          We  recently traced the  six-year procedural history of

this gargantuan  litigation, see  In Re Nineteen  Appeals Arising
                                                                 

Out of the San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603,
                                                  

605-08 (1st Cir. 1992), and it would be pleonastic to repeat that

exercise.  We remind the reader, however, that the district court

segmented  the liability inquiry into  three phases.   See id. at
                                                              

606.   This appeal concerns the third, and final, phase   a phase

designed to  "determin[e]  the contractual  liability of  various

insurers."  Id. at 606 n.3.
               

          The   district  court  wrote  a  lengthy  opinion  that

describes  the  mechanics of  Phase III  and  we refer  those who

thirst  for greater detail to that rescript.   See In Re San Juan
                                                                 

Dupont  Plaza Hotel Fire Litig., 802 F. Supp. 624, 629-30 (D.P.R.
                               

1992); see also id. at 652-57 (chronicling partial history of the
                   

                    

     1The opinion below provides a complete list of  the insurers
in question.   See In Re San Juan Dupont Plaza Hotel Fire Litig.,
                                                                
802 F. Supp. 624, 628 n.3 (D.P.R. 1992).

                                2

insurance-related litigation).  To  put this appeal into workable

perspective,  it suffices  to relate  that, during  Phase III,  a

covey  of cross-claimants,  comprising  forty-eight entities  who

allegedly owned, operated, or managed the hotel, sought to recoup

from the  pre-fire insurers some $78,000,000  which the entities,

collectively, had contributed to  settlement of victims' claims. 

Finding an absence  of coverage,  the district  court denied  the

cross-claimants' requests for indemnification.  See id. at 651.
                                                       

          At this  juncture, forty-five cross-claimants  threw in

the  towel.   The remaining  three, Holders  Capital Corporation,

Hotel  Systems International, and  Dupont Plaza  Associates, were

arguably  made of  sterner  stuff.   They  appealed, hawking  the

theorem  that   defects  in   the  hotel,  apparent   before  the

ustulation, gave rise to the liability upon which the settlements

were based; and that, therefore, these payments reflect "property

damage"  of a kind covered  under the insuring  agreements of the

policies underwritten by the pre-fire insurers.2

          We believe that appellants' theorem is  utterly without

merit.  To say that damages  for bodily injury and wrongful death

are  really  "property  damage"  within the  ambit  of  carefully

written  insurance  policies, and  then  to  argue that  coverage

attaches  not when  the harm-producing  incident occurs  but when

                    

     2Appellants  chose to  limit their  appeal to  the "property
damage" theory, eschewing  further pursuit  of other  contentions
they  originally  espoused in  the  district  court.   Hence,  we
confine  our  comments to  the single  issue advanced  on appeal,
mindful  that "theories neither briefed nor  argued on appeal are
deemed  to have been waived."   United States  v. Slade, 980 F.2d
                                                       
27, 30 n.3 (1st Cir. 1992).

                                3

alleged product  defects first become visible, is  to construct a

pyramidal proposition  more reminiscent of Lewis  Carroll than of

the  lexicon  of  insurance law.3    We  cannot  subscribe to  so

fanciful  a  reading of  either  the appellees'  policies  or the

applicable  precedents.    And,  moreover, because  we  find  the

district court's  opinion on this  point to be  well-reasoned and

clearly articulated, see id. at 643-48, we will be brief.  Where,
                            

as here, a trial court has  produced a first-rate work product, a

reviewing tribunal should hesitate  to wax longiloquent simply to

hear its own  words resonate.  We  therefore affirm the  entry of

summary judgment in this  case substantially on the basis  of the

opinion  below,  embellishing  our  affirmance  with  a decurtate

explanation of why  two recently decided cases, not considered by

the district court, fail to tip the scales in appellants' favor.

          Relying heavily  on Eljer Mfg., Inc.  v. Liberty Mutual
                                                                 

Ins. Co., 972 F.2d 805 (7th Cir. 1992), appellants argue that the
        

district  court applied an incorrect rule of law.  Eljer involved
                                                        

defective  plumbing  systems that  had  been  installed in  homes

throughout the  United States.  Citing  policy language identical

to that  contained in several of the  CGL policies here at issue,

                    

     3One is reminded of Alice who, upon tumbling into the rabbit
hole and finding  the garden  door locked, decided  to solve  her
dilemma by  eating a piece of  cake.  "`Well, I'll  eat it,' said
Alice, `and if it makes me grow larger,  I can reach the key; and
if  it makes  me grow  smaller, I  can creep  under the  door; so
either  way I'll  get into  the garden,  and I  don't care  which
happens!'"   Lewis Carroll, Alice's Adventures  In Wonderland 8-9
                                                             
(Delacorte Press ed.  1966).  Alice  enjoyed her snack    but she
remained  the same size  and the garden  door remained inviolate.
See id. at 9.
       

                                4

the  manufacturer of the systems sought a declaration that it was

covered  for  damages  flowing  from leaks  occurring  after  its

policies  had lapsed.   A  divided panel  of the  Seventh Circuit

upheld  the insured's  right to  coverage on  the basis  that the

"physical injury" took place when the systems  were implanted not

when  the leakage occurred and the latent harm materialized.  Id.
                                                                 

at 814.

          We  refuse to  accord  Eljer controlling  weight for  a
                                      

myriad of  reasons.  In the first  place, the Eljer court decided
                                                   

the coverage issue  under Illinois law, see  id. at 806,  in part
                                                

through the use  of what it  termed "first  principles."  Id.  at
                                                             

812.  To the extent that Eljer is good law  in Illinois, a matter
                              

about which Judge  Cudahy disagreed, see  id. at 814-17  (Cudahy,
                                             

J., dissenting),  and  upon which  we do  not opine,  we have  no

occasion  to transplant  its holding  to a  case, like  this one,

which is governed  by state  law requiring  a different  result.4

See, e.g., Albany  Ins. Co. v. Compania de  Desarrollo Comercial,
                                                                

90 JTS  19 (P.R. 1990); Maples  v. Aetna Casualty &amp;  Sur. Co., 83
                                                             

Cal. App. 3d 641, 148 Cal. Rptr. 80 (1978).

          In the second place, insofar as Eljer purports to claim
                                               

nationwide  application,  we   decline  the  invitation,  whether

                    

     4The district court saw no  need to make a choice of  law as
to  whether  the pre-fire  insurers'  policies  were governed  by
Puerto Rico or California law.   See In re Hotel Fire Litig., 802
                                                            
F. Supp. at 637 n.31.  Because Puerto Rico law and California law
coincide on the issue  presented in this appeal, we,  too, abjure
such a choice.  See Fashion House, Inc. v. K Mart Corp., 892 F.2d
                                                       
1076, 1092 (1st  Cir. 1989)  (recognizing that a  court need  not
make a formal choice of law when nothing would turn on it).

                                5

proffered by appellants or  by the Eljer majority, to  supplant a
                                        

state's body of  contract law with "federal  general common law."

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
                         

          In  the third  place, Eljer's  rule of  law  evolved in
                                     

connection with, and was applied to, a markedly different factual

situation.   The  inherently defective  plumbing system  at issue

there was installed in hundreds of thousands of homes nationwide.

See Eljer, 972 F.2d at 807.  It bore the risk of leaking,  with a
         

failure  rate   "sufficiently  high   to  mark  the   product  as

defective," from the  moment of installation,  even when used  as

intended.   Id. at 812.   By contrast, the products  found in the
               

Dupont  Plaza   Hotel,  although  alleged  to   have  created  an

unreasonable   danger  in  this  particular  instance,  were  not

generally defective.  They functioned  properly, with no risk  of
         

failure,  upon normal  use  and became  dangerous  only upon  the

outbreak of the conflagration.

          Fourth, and finally, the  property damage caused by the

defective plumbing systems was just that   property damage, e.g.,
                                                                

claims for  water damage  to  the victims'  homes, diminution  in

property values,  loss of  use, costs  of replacing  the systems,

etc.   See  id. at  807.   Here,  however, unlike  in Eljer,  the
                                                           

insureds' expenditures  were made  to recompense  personal injury

and  wrongful death  claims rather  than property  damage claims.

While it is true,  in a metaphysical sense, that  any expenditure

of  funds from  a  party's estate  can  always be  visualized  as

property  damage,  the term  "property  damage"  as  used in  the

                                6

appellees'  policies  is  a term  of  art.5   We  agree  with the

district court that the  term is not ambiguous and,  fairly read,

triggers coverage only when damage to property occurs  during the
                                              

applicable  policy period.  See  In Re Hotel  Fire Litig., 802 F.
                                                         

Supp. at 645-46.

          Appellants also cite  Chemstar, Inc. v.  Liberty Mutual
                                                                 

Ins.  Co., 797  F. Supp. 1541  (C.D. Cal.  1992), as  a basis for
         

urging that the dismissal of their coverage claims was premature.

In  particular,  they  brandish Chemstar's  acknowledgement  that
                                        

California   courts  have   adopted  more   than  one   rule  for

ascertaining the date upon which property damage occurs.  See id.
                                                                 

at  1549.    Arguing  that  the  district  court  "did  not  have

undisputed  material  facts allowing  it  to  decide between  the

various trigger rules and to determine the  proper application of

the one that it chose," appellants maintain that summary judgment

was inappropriate.

          Even assuming that California  law supplies the rule of

decision,  see  supra  note   4,  we  disagree  with  appellants'
                     

characterization  of the  sufficiency  of the  factual exposition

before  the district  court.   Chemstar  makes  clear that  under
                                       

California law  "insurance policies  are triggered when  property

damage actually occurs,  rather than when some prior wrongful act

is committed."  Id. at 1548.  Indeed, the Chemstar court embarked
                                                  

                    

     5This  term is precisely defined in most of the policies and
is satisfactorily defined by the structure of the one policy that
does  not contain an explicit  definition.  See  In re Hotel Fire
                                                                 
Litig., 802 F. Supp. at 645-46.
      

                                7

upon a  discussion of  various  trigger rules  merely because  it

observed that,  in latent defect  cases, the "date  when property

damage occurs is often difficult to pinpoint."  Id.
                                                   

          In  the case at bar,  no such difficulty  existed.  The

record makes manifest that none of the hotel's property contained

the type  of latent defect  that would have  set the stage  for a

complex determination of  the date damage  occurred.  Bearing  in

mind the  illogic  of  the  proposition  that  products  fit  for

ordinary use can  be deemed defective  at all, we  are unable  to

conceive of any evidentiary proffer that could alter the  obvious

trigger  date    and  appellants have  not  suggested, let  alone

documented,  a viable scenario for such an alteration.  Here, the

damage  indisputably occurred on the date of the fire, well after

the  expiration of  the  insurance policies  underwritten by  the

appellees.    Hence,  coverage  was  triggered  at  a  time  when

appellees were no longer on the risk.

          We  need go no further.  The supposed defects that were

apparent  in the  Dupont Plaza  Hotel before  the fire  and which

allegedly contributed to  the victims' injuries  were not at  all

representative of the specie of "property damage" contemplated in

the pre-fire insurers' policies.  Because this is so, and because

no  insured  loss took  place  during the  policy  period(s), the

district  court did not  err in  granting the  pre-fire insurers'

motion for brevis disposition.
                 

Affirmed.
        

                                8
