                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 22 2013

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




                            FOR THE NINTH CIRCUIT



AFFILIATED FM INSURANCE                          No. 12-35497
COMPANY, a Rhode Island corporation,
                                                 D.C. No. 2:06-cv-01750-JLR
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

LTK CONSULTING SERVICES, INC., a
Pennsylvania corporation,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                        Argued and Submitted May 7, 2013
                               Seattle, Washington

Before: THOMAS and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.**

       Affiliated FM Insurance Company appeals from the district court’s order

granting summary judgment to LTK Consulting Services, Inc. We reverse and

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
remand for further proceedings. Because the parties are familiar with the history of

this case, we need not recount it here.

      Genuine issues of material fact preclude summary judgment on the question

of whether the statute of limitations bars Plaintiff’s claims. Under Washington’s

discovery rule, the statute of limitations starts to run on a negligence claim when

the plaintiff discovers, or in the exercise of reasonable diligence should have

discovered, the salient facts underlying the elements of the cause of action. Green

v. A.P.C. (Am. Pharm. Co.), 960 P.2d 912, 915 (Wash. 1998) (en banc). The

elements of a negligence claim are duty, breach, causation, and injury. Id. With

respect to the last element, injury, a “plaintiff must suffer actual and appreciable

harm, as distinguished from nominal damages, before the statute of limitation

commences.” Steele v. Organon, Inc., 716 P.2d 920, 922 (Wash. Ct. App. 1986).

      Under Washington law, even a “‘slight’” injury starts the running of the

limitations period. Lindquist v. Mullen, 277 P.2d 724, 725 (Wash. 1954) (en banc)

(quoting 34 Am. Jur. 126 § 160), overruled on other grounds by Ruth v. Dight, 453

P.2d 631 (Wash. 1969) (en banc). A federal court sitting in diversity may decide

that a discovery-based statute of limitations bars a suit as a matter of law “only

when uncontroverted evidence irrefutably demonstrates” that the plaintiff

discovered or should have discovered the injury outside the limitations period.


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Nev. Power Co. v. Monsanto Co., 955 F.2d 1304, 1307 (9th Cir. 1992) (quoting

Mosesian v. Peat, Marwick, Mitchell & Co., 727 F.2d 873, 877 (9th Cir. 1984));

accord Goodman v. Goodman, 907 P.2d 290, 294 (Wash. 1995) (en banc).

      To the extent Plaintiff claims that the fire was caused by LTK’s alleged

negligence in changing from a floating to a bonded grounding system in 1998, the

district court correctly concluded that Plaintiff’s claim is time-barred. But

Plaintiff’s theory, at least in part, is that the negligence occurred in the design and

installation of the terminal board in 2001 and 2002, and that the redesigned

terminal board was the proximate cause of the fire that is the subject of the suit.

Therefore, Plaintiff argues the statute of limitations did not commence until the fire

occurred in 2004. Because the suit was filed in 2006, Plaintiff contends that the

suit was timely filed.

      Defendant argues that the design issues predated the installation of the

terminal board and that a series of electrical incidents, including at least one that

post-dated the terminal board installation, were sufficient actual injury to trigger

the running of the limitations period.

      There are genuine issues of material fact as to whether the monorail

sustained “actual and appreciable” harm after the terminal board was installed. See

Steele, 716 P.2d at 922 (plaintiff must suffer “actual and appreciable harm” before


                                            3
the statute of limitation commences). The record is unclear about the extent,

significance, and cause of the alleged post-installation incidents and, indeed,

whether they actually occurred post-installation. Conflicting inferences may be

drawn from the monorail manager’s correspondence and testimony about the

events.

      Under our familiar summary judgment standard, all reasonable factual

inferences must be drawn in the non-moving party’s favor. Furnace v. Sullivan,

705 F.3d 1021, 1026 (9th Cir. 2013). Given the disputed facts, and drawing the

inferences in favor of the plaintiff, we conclude that genuine issues of material fact

exist precluding summary judgment.

      We need not, and do not, reach any other issue urged by the parties on

appeal.

      REVERSED AND REMANDED.




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