                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            MAR 21 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
VARAZDAT DAVTIAN,                                No.   14-35599

               Plaintiff-Appellant,              D.C. No. 6:12-cv-01211-MC

          v.
                                                 MEMORANDUM*
SAFECO INSURANCE COMPANY OF
OREGON,

               Defendant-Appellee.

                    Appeal from the United States District Court
                              for the District of Oregon
                    Michael J. McShane, District Judge, Presiding

                             Submitted March 7, 2017**
                                 Portland, Oregon

Before: O’SCANNLAIN, FISHER and FRIEDLAND, Circuit Judges.

      Varazdat Davtian appeals a judgment in favor of Safeco Insurance Company

of Oregon (Safeco) on his breach of contract claim. We have jurisdiction under 28

U.S.C. § 1291, we review the district court’s evidentiary rulings for an abuse of


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
discretion, see United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011), and

we affirm.

      1.     We assume without deciding that Davtian did not waive his challenge

to evidence of the 2007 fire by being the first party to refer to the evidence, doing

so in his opening statement and direct examination of his first witness. See Ohler

v. United States, 529 U.S. 753, 755 (2000).

      2.     We reject Davtian’s argument that evidence of the 2007 fire should

have been excluded under Federal Rules of Evidences 402 and 404(b) because he

was not involved in the fire. Safeco offered the evidence on the theory that

Papazyan was involved in both fires, not that Davtian was. Accordingly, Safeco

had to present sufficient evidence for a jury to find only that Papazyan was

involved in 2007 fire, and Davtian does not dispute that Safeco did so. Under Rule

404(b), other act evidence is admissible not only against parties but also against

third persons, such as Papazyan. See United States v. McCourt, 925 F.2d 1229,

1234 (9th Cir. 1991) (citing cases for the “unremarkable proposition that evidence

of a third party’s extrinsic offenses is admissible when relevant to some issue other

than propensity”).

      3.     We reject Davtian’s argument that evidence of the 2007 fire should

have been excluded because there was no evidence the fire was intentionally set.


                                           2
Although it is true that neither the fire department nor the insurer treated the 2007

fire as intentionally set at the time, there was sufficient evidence for Davtian’s jury

to find otherwise. See Fed. R. Evid. 104(b). The fire occurred in the middle of the

night, when no one was home; Topchian offered a dubious explanation for his

absence; Papazyan was in financial distress at the time of the fire; Papazyan and

Topchian benefitted financially from the insurance proceeds; and, viewed together,

the 2007 and 2011 fires suggest that both were intentionally set.

      4.     The district court did not abuse its discretion by concluding the

probative value of evidence of the 2007 fire was not substantially outweighed by

the danger of unfair prejudice. See Fed. R. Evid. 403. The evidence was relevant

to show a scheme or plan and absence of mistake. See Fed. R. Evid. 401, 404(b);

David P. Leonard, The New Wigmore: Evidence of Other Misconduct § 9.1 (2017).

Other circuits agree. E.g., Westfield Ins. Co. v. Harris, 134 F.3d 608, 615 (4th Cir.

1998) (stating, in a case involving Rule 404(b) evidence of previous fires, “the

more often an accidental or infrequent incident occurs, the more likely it is that its

subsequent reoccurrence is not accidental or fortuitous”); Dial v. Travelers Indem.

Co., 780 F.2d 520, 523 (5th Cir. 1986) (other fire evidence admissible to show “a

plan to burn insured properties”); United States v. Morano, 697 F.2d 923, 926

(11th Cir. 1983) (evidence of previous fire admissible to show a plan). Although


                                           3
the evidence presented some danger of unfair prejudice, the district court’s Rule

403 balancing was not an abuse of its discretion.

      5.     The district court did not abuse its discretion by admitting Chief

Carriger’s causation testimony under Federal Rule of Evidence 702. Carriger was

qualified as an expert based on his fire causation and origin certification and his

many years of firefighting experience. The mere fact that Carriger was not part of

the investigation team and did not conduct a “scientific” investigation into its cause

does not mean his opinion, based on his firsthand observations and specialized

knowledge and experience, was unreliable or otherwise deficient under Rule 702.

Again, our conclusion is consistent with cases from other circuits. E.g., Shuck v.

CNH Am., LLC, 498 F.3d 868, 874 (8th Cir. 2007) (“The failure to test components

that were damaged or destroyed by fire did not necessarily render the experts’

methodology flawed nor opinions inadmissible.”); United States v. Markum, 4 F.3d

891, 896 (10th Cir. 1993) (fire chief “possessed the experience and training

necessary to testify as an expert on the issue whether the second fire was a natural

rekindling of the first fire”); Am. Home Assurance Co. v. Sunshine Supermarket,

Inc., 753 F.2d 321, 325 (3d Cir. 1985) (holding “the opinions by the fire officials

were clearly admissible” where “[t]here was testimony that showed that they were

experienced and knowledg[e]able in the investigation of fires and that their


                                           4
opinions were based on personal observation”). Nor did the district court abuse its

discretion by admitting this evidence under Rule 403.

      AFFIRMED.




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