                             NOT FOR PUBLICATION                   FILED
                       UNITED STATES COURT OF APPEALS              MAY 11 2016
                                                                MOLLY C. DWYER, CLERK
                                                                 U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


ASH GROVE CEMENT COMPANY, a                 No.   13-35900
Delaware corporation,
                                            D.C. No. 3:09-cv-00239-HZ
         Plaintiff - Appellee,

STATE OF OREGON,                            MEMORANDUM *

         Intervenor,

    v.

LIBERTY MUTUAL INSURANCE
COMPANY, a Massachusetts insurance
company,

         Defendant - Appellant.



ASH GROVE CEMENT COMPANY, a                 No.   13-35905
Delaware corporation,
                                            D.C. No. 3:09-cv-00239-HZ
         Plaintiff - Appellee,

STATE OF OREGON,

         Intervenor,

    v.


*
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
UNITED STATES FIDELITY &
GUARANTY COMPANY, a Maryland
insurance company,

       Defendant - Appellant.



ASH GROVE CEMENT COMPANY, a                   No.   14-35298
Delaware corporation,
                                              D.C. No. 3:09-cv-00239-HZ
       Plaintiff - Appellant,

  v.

LIBERTY MUTUAL INSURANCE
COMPANY, a Massachusetts insurance
company; UNITED STATES FIDELITY &
GUARANTY COMPANY, a Maryland
insurance company,

       Defendants - Appellees.

                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernandez, District Judge, Presiding

                        Argued and Submitted May 2, 2016
                                Portland, Oregon

Before: GOODWIN, TALLMAN, and HURWITZ, Circuit Judges.

       Liberty Mutual Insurance Company (“Liberty”) and United States Fidelity

and Guaranty Company (“USF&G”) appeal a declaratory judgment, entered after a

bench trial, holding that they have a duty under Oregon law to defend Ash Grove

Cement Company.       Ash Grove cross-appeals the denial of a portion of its


                                       2
attorneys’ fee request. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

      Ash Grove operates two cement plants on the east shore of the Willamette

River within the Portland Harbor Superfund Site (the “Site”). See 65 Fed. Reg.

75179-01(III)(A) (Dec. 1, 2000) (listing Portland Harbor on the National Priorities

List). In January 2008, Ash Grove received an information request from the U.S.

Environmental Protection Agency (“EPA”) pursuant to section 104(e) of the

Comprehensive Environmental Response, Compensation, and Liability Act of

1980, 42 U.S.C. § 9604(e), regarding contamination at the Site (the “104(e)

letter”). On January 29, 2008, Ash Grove forwarded the 104(e) letter to Liberty

and USF&G (the “Insurers”).

      In January 2009, Ash Grove filed a complaint in Oregon state court seeking

a declaratory judgment that the Insurers and Hartford Accident and Indemnity

Company (“Hartford”) had a duty to defend and indemnify Ash Grove for certain

expenses it incurred related to the 104(e) letter, damages for breach of contract,

and attorneys’ fees. The defendants subsequently removed the case to the District

of Oregon. 1

      1.       In July 2010, Ash Grove settled its claims against Hartford. The

district court properly rejected the Insurers’ argument that “the injuries for which

damages were sought in the two actions” were “identical,” because the settlement


1
      The duty to indemnify claim has been stayed.

                                         3
broadly settled all potential claims between the parties, not just those related to the

Site. See Maduff Mortg. Corp. v. Deloitte Haskins & Sells, 779 P.2d 1083, 1090

(Or. Ct. App. 1989).

      2.     The Insurers argue that the 104(e) letter is not a “suit” under Oregon

law. 2 But, we have previously held that a 104(e) letter is a “coercive information

demand[]” that is “an attempt to gain an end through legal process,” and is

therefore a “suit” under Oregon law. Anderson Bros., Inc. v. St. Paul Fire &

Marine Ins. Co., 729 F.3d 923, 932-33, 935 (9th Cir. 2013).

      3.     We have also rejected the Insurers’ argument that the intent of the

parties could not have been to treat a 104(e) letter as a “suit,” because the policies

distinguish between a “claim” and a “suit.” Id. at 933-34. Likewise, we have

addressed and rejected the Insurers’ contention that a 104(e) letter cannot

constitute a “suit” because it does not require that an “insured take action with

respect to contamination within the State of Oregon” under Oregon Revised Statute

§ 465.480(2)(b). Id. at 934-35.

      4.     The Insurers argue that the 104(e) letter contains no allegations of

“property damage” which could impose liability on Ash Grove sufficient to trigger




2
     All policies at issue require the Insurers to defend any “suit” against Ash
Grove.

                                          4
the duty to defend. 3 This position was also specifically rejected in Anderson Bros.,

729 F.3d at 936-37.

      5.     Anderson Bros. also disposes of the Insurers’ argument that requiring

an insurer to defend a 104(e) letter would violate the Oregon Constitution and the

United States Constitution by retroactively and materially expanding the scope of

the defense obligation. Id. at 936.

      6.     The Insurers maintain that, even if the 104(e) letter constitutes a suit,

their duty to defend ceased after Ash Grove submitted its response to the letter.

But Oregon law provides that the duty “continue[s] as to each unit [of property]

until the Record of Decision for that unit [i]s filed.” Schnitzer Inv. Corp. v.

Certain Underwriters at Lloyd’s of London, 104 P.3d 1162, 1169 (Or. Ct. App.

2005), aff’d, 137 P.3d 1282 (Or. 2006). Aside from their argument that the duty to

defend ended when the response to the section 104(e) letter was submitted, the

Insurers do not contend that the district court erred in requiring them to establish

that the expenses Ash Grove incurred were “in fact unreasonable or unnecessary”

as defense costs. See Aerojet-General Corp. v. Transp. Indem. Co., 948 P.2d 909,


3
       The Liberty policies from 1963 to 1966 cover “damages because of injury to
or destruction of property, including the loss of use thereof, caused by accident,”
while policies from 1967 to 1970 cover “property damage to which this policy
applies, caused by an occurrence.” The USF&G policies all state that USF&G
“will pay on behalf of the Insured all sums which the Insured shall become legally
obligated to pay as damages because of . . . property damage to which this
insurance applies, caused by an occurrence. . . .”

                                          5
924 (Cal. 1997).

      7.     The Insurers also posit that, if the 104(e) letter constitutes a suit, the

district court erred in holding that Oregon law does not require a formal tender of a

claim before the duty begins.      The district court correctly, however, cited a

decision of the Oregon Court of Appeals, see Or. Ins. Guar. Ass’n v. Thompson,

760 P.2d 890, 893 (Or. Ct. App. 1988), suggesting that the duty is triggered by

notice of the claim, and the Insurers have provided no citation to any contrary

Oregon authority.

      8.     Ash Grove challenges the district court’s award of attorneys’ fees

under Oregon Revised Statutes § 742.061(1), which provides for “a reasonable

amount” of fees in any action in which an insured’s “recovery exceeds the amount

of any tender made by the defendant.” We find no abuse of discretion in the

district court’s award. See Med. Protective Co. v. Pang, 740 F.3d 1279, 1282 (9th

Cir. 2013) (stating standard of review).

             a.     After finding counsel’s handling of the case “average,” the

      court did not abuse its discretion in granting fees at the average rates in the

      Oregon State Bar Survey, the “initial benchmark” adopted as a policy matter

      by the District of Oregon.

             b.     The district court did not exceed its “authority to make across-

      the-board cuts,” when it provided “a concise but clear explanation of its


                                           6
reasons,” Gates v. Deukmejian, 987 F.2d 1392, 1399-1400 (9th Cir. 1993)

(quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).          The court

identified and explained in a 38-page opinion why substantial reductions

were warranted in a record establishing excessive and duplicative billing,

and “replete” with “needless peer review, particularly between experienced

outside and local counsel,” that “unnecessarily increased the cost of

litigation.”

       c.      Contrary to Ash Grove’s arguments, in declining to award fees

for certain document review, the district court did not find that it was

unreasonable to expend 278 hours reviewing 7,872 documents. Rather, the

court properly ruled that the absence of detailed time entries prevented it

from determining whether “the amount of time billed is reasonable for the

described task.”

       d.      Because Ash Grove did not submit evidence from which the

district court could have determined attorney DRS’s billing rate, the court

did not err in refusing to award any fees for his time. See Strawn v. Famers

Ins. Co. of Or., 297 P.3d 439, 449 (Or. 2013) (“Strawn, as the party seeking

an award of fees, has the burden of establishing the reasonableness of the fee

amount that he requests.”).




                                   7
     AFFIRMED. 4




4
    The Insurers’ Motion to Certify Questions to the Oregon Supreme Court,
ECF No. 26, is DENIED.

                                      8
