James River Insurance Company v. Herbert Schenk, Pc. ( 2008 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JAMES RIVER INSURANCE COMPANY,               No. 06-15622
    a foreign corporation,                          D.C. No.
    Plaintiff-Appellee,       CV-05-01213-FJM
    v.
           ORDER
    HEBERT SCHENK, P.C.,                          AMENDING
    Defendant-Appellant.           OPINION AND
    AMENDED
          OPINION
    Appeal from the United States District Court
    for the District of Arizona
    Frederick J. Martone, District Judge, Presiding
    Argued and Submitted
    February 13, 2008—San Francisco, California
    Filed March 18, 2008
    Amended April 25, 2008
    Before: William C. Canby, Jr., David R. Thompson, and
    Milan D. Smith, Jr., Circuit Judges.
    Opinion by Judge Milan D. Smith, Jr.
    4459
    4462          JAMES RIVER INS. v. HEBERT SCHENK
    COUNSEL
    Steven Plitt and Joshua D. Rogers, Kunz Plitt Hyland Dem-
    long & Kleinfeld, Phoenix, Arizona, for the defendant-
    appellant.
    Martha E. Gibbs, Snell & Wilmer LLP, Phoenix, Arizona, for
    the plaintiff-appellee.
    ORDER
    The opinion filed on March 18, 2008 is amended as fol-
    lows:
    At Slip Op. p. 2540, line 33, to p. 2541, lines 1-2, replace
    Stewart, 817 P.2d at 49
    , we must conclude that Ques-
    tion 10(c) elicits a subjective determination.> with 2008
    WL 382934
    , at *2, ___ P.3d ___ (Ariz. Feb. 14, 2008), Ques-
    JAMES RIVER INS. v. HEBERT SCHENK            4463
    tion 10(c) is more appropriately viewed as eliciting a subjec-
    tive determination.>
    The petitions for panel rehearing and certification to the
    Arizona Supreme Court are DENIED.
    OPINION
    MILAN D. SMITH, JR., Circuit Judge:
    In this appeal we decide whether the district court erred in
    granting summary judgment to a professional liability insurer
    on a claim seeking a declaration of no coverage, and on coun-
    terclaims for breach of contract and bad faith under Arizona
    law. The insurer argued that it could permissibly refuse to
    provide for its insured’s defense against a legal malpractice
    lawsuit because the insured failed to mention the possibility
    of the lawsuit in the insurance application. The district court
    agreed and held that Arizona Revised Statutes § 20-1109 per-
    mits a denial of coverage because the insured’s omission con-
    stitutes legal fraud. The court rejected the counterclaims
    because the insurer provided for the malpractice defense. We
    reverse and remand for trial.
    FACTUAL AND PROCEDURAL BACKGROUND
    David and Cheryl Nolan and Tony and Shirley Wall
    formed a limited liability company in 2000 for the purpose of
    constructing and developing two commercial buildings. Due
    to poor management, the business failed shortly thereafter,
    resulting in a loss of over $2 million.
    In November 2001, the Nolans retained attorney Jack
    Hebert (Hebert) from Defendant-Appellant law firm Hebert
    Schenk, P.C. (Hebert Schenk) to represent them in connection
    with negotiations and any litigation that might arise out of the
    4464           JAMES RIVER INS. v. HEBERT SCHENK
    failed business venture. On February 5, 2004, Hebert met with
    the Nolans to discuss the possibility of initiating litigation
    against the Walls. Hebert agreed to provide a tentative litiga-
    tion budget and to return originals of certain loan documents
    to the Nolans. After the meeting the Nolans attempted to
    reach Hebert many times by telephone, but Hebert did not
    return their calls or otherwise communicate with them for a
    period of almost three months.
    On April 19, 2004, Hebert Schenk applied for a profes-
    sional liability insurance policy with Plaintiff-Appellee James
    River Insurance Company (James River). Question 10(c) of
    the application stated:
    After inquiry, are any [lawyers within the firm]
    aware of any circumstances, allegations, Tolling
    [sic] agreements or contentions as to any incident
    which may result in a claim being made against the
    Applicant or any if [sic] its past or present Owners,
    Partners, Shareholders, Corporate Officers, Asso-
    ciates, Employed Lawyers, Contract Lawyers or
    Employees or its predecessor in business? . . . . If
    yes, please complete enclosed Supplement Number
    6.
    Supplement 6 stated, “This form is to be completed if the
    applicant or any lawyer [in the firm] is currently or has been
    involved in any claim or suit during the last ten years and [sic]
    indicated by a ‘Yes’ answer to question[ ] . . . 10(c).” Hebert
    Schenk responded to Question 10(c) in the affirmative and, in
    Supplement 6, listed several actual and potential claims
    against the firm, but did not disclose any information concern-
    ing a potential claim by the Nolans.
    On April 27, 2004, approximately one week after the sub-
    mission of the insurance application, the Nolans wrote a letter
    to Hebert indicating that they wished to terminate their rela-
    JAMES RIVER INS. v. HEBERT SCHENK                 4465
    tionship with his firm on the ground that his representation
    had been deficient. The letter stated in part:
    Dear Jack:
    It is time to bring your representation of us . . . to an
    end. It is certainly ironic that when Cheryl and I last
    met with you on February 5, you spent some time
    describing your interchange with Neil Thomson,
    reporting how you chastised him for abandoning his
    client. Without a doubt, you have abandon [sic] us as
    well. I have made no fewer than a dozen attempts to
    communicate with you since that meeting. I have not
    received a single call or email. This is despite your
    advice to us on 2/5, that we should file a lawsuit
    against Wall in order to secure some future recovery
    potential for our $2.264 million investment. As with
    the similar experience in the Spring of 2003, com-
    munication simply dried up. The least we were owed
    was some notice that you were unable to represent us
    and a referral to alternative counsel. If you truly
    believed that it was too late in the game and our best
    course was to take the loss and move on, we were
    owed that message, and some closure as well. For
    reasons we may never really understand, and could
    never be justified, you have stopped communicating
    and have failed to follow through on specific actions
    you recommended to protect our interests.
    To “bring [the] matter to a close,” the Nolans demanded that
    Hebert return their documents and waive $1,162.38 in legal
    fees. Hebert responded on April 29 by acknowledging his
    fault and stating that the Nolans’ letter of complaint was “cor-
    rect in every aspect.” He also agreed to return the Nolans’
    documents and waive the fees.
    Less than two weeks after this correspondence, James
    River faxed an insurance quote to Hebert Schenk. The quote
    4466           JAMES RIVER INS. v. HEBERT SCHENK
    required as a precondition to issuance of the policy “[u]pdated
    signatures of the application and of all of the application sup-
    plements.” The quote also required a “no known claims and
    no known claims incidents statement.” Hebert Schenk
    responded that it “ha[d] no known claims and no known
    claims incidents” to report.
    In reliance on the representations made in the application
    and subsequent correspondence, James River issued a one-
    year professional liability insurance policy to Hebert Schenk
    on June 12, 2004. Section I(1)(a) of the policy provided:
    We will pay on behalf of the “Insured” those sums
    in excess of the deductible the “Insured” becomes
    legally obligated to pay as “Damages” and “Claims
    Expenses” because of a “Claim” first made against
    the “Insured” and reported to [James River] in writ-
    ing during the “Policy Period” by reason of a
    “Wrongful Act” in the performance of or failure to
    perform “Professional Services” by the “Insured” or
    by any other person or entity for whom the “Insured”
    is legally liable.
    Section III(a)(1) of the policy excluded coverage for any
    “Claim” “[b]ased on or directly or indirectly arising from . . .
    [a] ‘professional service’ rendered prior to the effective date
    of the Policy if any insured knew or could have reasonably
    foreseen that the ‘professional service’ could give rise to a
    ‘claim.’ ” Section III(a)(3) excluded coverage for any
    “ ‘claim,’ suit, act, error or omission disclosed in the applica-
    tion for [the] Policy.” The policy defined “Claim” as “a writ-
    ten demand for monetary damages arising out of or resulting
    from the performing or failure to perform ‘Professional Ser-
    vices.’ ” “Professional Services” denoted “those services per-
    formed by the ‘Insured’ for others . . . as a lawyer.”
    “Wrongful Act” was defined as “any actual or alleged act,
    error, omission . . . neglect or breach of duty in the perform-
    ing of or failure to perform ‘Professional Services.’ ”
    JAMES RIVER INS. v. HEBERT SCHENK                  4467
    On October 7, 2004, the Nolans, having retained new coun-
    sel, informed Hebert Schenk that they intended to assert legal
    malpractice claims against Hebert and the firm for the reasons
    articulated in the April 27, 2004 letter. Shortly thereafter, the
    Nolans filed claims for negligence and breach of fiduciary
    duty in Arizona Superior Court. Citing the insurance policy,
    Hebert Schenk demanded that James River provide for its
    defense. James River explained that it would provide for the
    defense while reserving the right to later deny coverage on the
    ground that the Nolans’ claims were both reasonably foresee-
    able and undisclosed prior to the issuance of the policy. James
    River subsequently retained the firm of Jones, Skelton &
    Hochuli, P.C. to defend Hebert and Hebert Schenk and paid
    a total of $142,692.17 in legal fees.
    While providing for Hebert’s and Hebert Schenk’s defense,
    James River filed an action in district court seeking (1) a dec-
    laration that the Nolans’ malpractice claims are not covered
    by the insurance policy and (2) recoupment of the payments
    made for the defense. Hebert Schenk counterclaimed that
    James River breached the insurance contract by refusing to
    defend against the Nolan lawsuit. Hebert Schenk also counter-
    claimed that James River committed bad faith by engaging in
    a series of wrongful acts for the purpose of denying coverage.
    James River moved for summary judgment on the declara-
    tory judgment action and the counterclaims. In support of the
    motion on the counterclaims, James River submitted copies of
    billing records from Jones, Skelton & Hochuli to demonstrate
    that a defense had been provided. The district court granted
    both motions. Armed with new expert testimony, Hebert
    Schenk moved for reconsideration with respect to the counter-
    claim of bad faith, but the court denied the motion on the
    view that the evidence should have been provided earlier. The
    firm appeals the adjudication of the declaratory judgment
    action and the counterclaim of bad faith.1
    1
    There are some indications in Hebert Schenk’s appeal brief that the
    firm also contests the disposition of its counterclaim for breach of con-
    4468             JAMES RIVER INS. v. HEBERT SCHENK
    STANDARD OF REVIEW AND JURISDICTION
    We review de novo a district court’s grant of summary
    judgment pursuant to Federal Rule of Civil Procedure 56.
    Buono v. Norton, 
    371 F.3d 543
    , 545 (9th Cir. 2004). Rule
    56(c) provides that summary judgment is warranted when
    “the pleadings, the discovery and disclosure materials on file,
    and any affidavits show that there is no genuine issue as to
    any material fact and that the movant is entitled to judgment
    as a matter of law.” A “genuine issue” of material fact will be
    absent if, upon “viewing the evidence and inferences which
    may be drawn therefrom in the light most favorable to the
    adverse party, the movant is clearly entitled to prevail as a
    matter of law.” Jones v. Halekulani Hotel, Inc., 
    557 F.2d 1308
    , 1310 (9th Cir. 1977). Summary judgment is inappropri-
    ate if a reasonable juror, drawing all inferences in favor of the
    nonmoving party, could return a verdict in the nonmoving
    party’s favor. United States v. Shumway, 
    199 F.3d 1093
    ,
    1103-04 (9th Cir. 1999).
    We have jurisdiction under 28 U.S.C. § 1291.
    DISCUSSION
    A.    Denial of coverage based on fraud
    [1] Arizona law allows an insurer to deny coverage because
    of a misrepresentation in the insurance application or “in
    negotiations therefor” if (1) the misrepresentation is fraudu-
    lent, (2) the misrepresentation is “material either to the accep-
    tance of the risk, or to the hazard assumed by the insurer,” and
    tract, but we find the issue inadequately presented, and therefore waived.
    See Greenwood v. FAA, 
    28 F.3d 971
    , 977 (9th Cir. 1994) (“We review
    only issues which are argued specifically and distinctly in a party’s open-
    ing brief.”). Accordingly, our ruling does not affect the district court’s
    entry of summary judgment on that counterclaim.
    JAMES RIVER INS. v. HEBERT SCHENK            4469
    (3) the “insurer in good faith would . . . not have issued the
    policy . . . if the true facts had been made known to the
    insurer as required either by the application for the policy or
    otherwise.” Ariz. Rev. Stat. § 20-1109; see also State Comp.
    Fund v. Mar Pac Helicopter Corp., 
    752 P.2d 1
    , 5 (Ariz. Ct.
    App. 1988) (explaining that all three prongs of § 20-1109
    must be satisfied even though the statute does not clearly
    phrase them in the conjunctive).
    [2] The parties agree that the second and third requirements
    of § 20-1109 are satisfied. Thus, the only question concerning
    the applicability of the statute is whether Hebert Schenk made
    a fraudulent misrepresentation. Hebert Schenk could not have
    notified James River of the prospect of the Nolan claim when
    it completed the insurance application on April 19, 2004
    because the Nolans first complained of deficient representa-
    tion on April 27. However, James River requested updates of
    the application signatures and Supplement 6 approximately
    two weeks after Hebert Schenk received the Nolans’ letter.
    We must decide whether the failure to mention the Nolans in
    response to this latter request so clearly constituted a fraudu-
    lent misrepresentation as to entitle James River to summary
    judgment. We hold that it did not.
    [3] A showing of either legal or actual fraud can satisfy the
    fraud requirement of § 20-1109. Russell v. Royal Maccabees
    Life Ins. Co., 
    974 P.2d 443
    , 450 (Ariz. Ct. App. 1998). Legal
    fraud occurs when (1) a question asked by the insurer seeks
    facts that are “presumably within the personal knowledge of
    the insured,” (2) the insurer would naturally contemplate that
    the insured’s answer represented the actual facts, and (3) the
    answer is false. 
    Id. By contrast,
    actual fraud occurs only when
    a question calls for an opinion and the answer is intended to
    deceive. Stewart v. Mut. of Omaha Ins. Co., 
    817 P.2d 44
    , 48
    (Ariz. Ct. App. 1991). “Whether a question elicits a factual
    response or an opinion is a matter for the trier of fact to
    decide based on the particular facts of each case, unless rea-
    sonable persons could not differ as to whether the answer was
    4470             JAMES RIVER INS. v. HEBERT SCHENK
    a statement of opinion or a statement of fact.” Equitable Life
    Assurance Soc’y of the U.S. v. Anderson, 
    727 P.2d 1066
    , 1070
    (Ariz. Ct. App. 1986).
    [4] The parties agree that summary judgment cannot be
    entered in this case on the basis of actual fraud because there
    is no evidence of intent to deceive. They disagree, however,
    about the applicability of the doctrine of legal fraud. Hebert
    Schenk argues that the doctrine does not apply because Ques-
    tion 10(c) of the insurance application elicited an opinion
    rather than a factual response.
    [5] We agree with Hebert Schenk and conclude that sum-
    mary judgment was inappropriate because reasonable persons
    could differ as to whether Question 10(c) elicited a statement
    of opinion or fact. 
    Anderson, 727 P.2d at 1070
    . The Question
    asked whether, “[a]fter inquiry,” any lawyers in the firm were
    “aware” of any circumstances “as to any incident which may
    result in a claim being made against” the firm. “Awareness”
    of a circumstance is a factual condition rather than a matter
    of opinion, and the phrase “after inquiry” suggests that the
    firm representative who answered Question 10(c) was to
    report on, rather than opine on, the awareness of lawyers in
    the firm. However, whether the circumstances of which the
    lawyers were aware were of the kind described in the question
    —i.e., that which “may result” in a malpractice claim—is
    fairly viewed as a matter of opinion. The reasonable interpre-
    tation of Question 10(c) requires that “may result” denotes
    something more than a purely theoretical possibility of a law-
    suit. Whether the factual circumstances concerning any indi-
    vidual client gave rise to a sufficient probability of legal
    action was a judgment call reflecting an analysis of those cir-
    cumstances.2 Reasonable persons could thus find that the
    2
    Some of the factors that might reasonably inform this analysis include
    the perceived merit of the possible claim at the time of application, the
    degree to which the client is dissatisfied with the representation, and the
    character of the specific attorney-client relationship, among others.
    JAMES RIVER INS. v. HEBERT SCHENK            4471
    omission of the Nolan communications from Supplement 6
    reflected Hebert Schenk’s opinion that the Nolans’ dissatis-
    faction would not result in a claim. See Citizens Bank of
    Jonesboro, Ark. v. W. Employers Ins. Co., 
    865 F.2d 964
    , 966
    (8th Cir. 1989) (finding that similar language “call[ed] for the
    applicant’s belief about whether any known fact or circum-
    stance might give rise to a future claim”); Shaheen, Cappiello,
    Stein & Gordon, P.A. v. Home Ins. Co., 
    719 A.2d 562
    , 566
    (N.H. 1998) (same).
    Some courts have held that similarly worded questions
    elicit factual answers by making an objective, reasonable-
    person standard the basis for determining whether the proba-
    bility of a malpractice claim is high enough to require insurer
    notification. See, e.g., Int’l Surplus Lines Ins. Co. v. Wy. Coal
    Refining Sys., Inc., 
    52 F.3d 901
    , 904 (10th Cir. 1995); Mt.
    Airy Ins. Co. v. Thomas, 
    954 F. Supp. 1073
    , 1080 (W.D. Pa.
    1997). In the view of these courts, the objective standard
    makes the applicant’s opinion irrelevant because the standard
    substitutes for a subjective probability assessment as the basis
    for the applicant’s answer to the question posed.
    Given the facts of this case, we find the approach in Inter-
    national Surplus Lines Insurance Co. and Mt. Airy Insurance
    Co. unpersuasive for two reasons. First, Question 10(c) is
    ambiguous about whether the basis for the probability deter-
    mination should be the applicant’s subjective assessment or
    an objective, reasonable-person standard. Because Arizona
    tends to construe ambiguity in insurance applications in favor
    of the insured, Employers Mut. Cas. Co. v. DGG & Car, Inc.,
    
    2008 WL 382934
    , at *2, ___ P.3d ___ (Ariz. Feb. 14, 2008),
    Question 10(c) is more appropriately viewed as eliciting a
    subjective determination. Second, even assuming that the
    Question clearly references an objective standard, answering
    the Question still required Hebert Schenk to exercise judg-
    ment in applying that standard to the facts concerning particu-
    lar clients. We see no meaningful difference between an
    opinion question and a “fact” question that requires the appli-
    4472            JAMES RIVER INS. v. HEBERT SCHENK
    cant to engage in a standard-based analysis to determine
    whether the specified factual condition exists. Questions typi-
    cally understood as seeking factual answers, such as name or
    date of birth, do not require such analysis. See, e.g., Mann v.
    N.Y. Life Ins. & Annuity Corp., 
    222 F. Supp. 2d 1151
    , 1154
    (D. Ariz. 2002) (holding that a question about past incidents
    of drug use elicited a factual response).
    [6] We therefore hold that the district court erred in grant-
    ing summary judgment on James River’s claim under § 20-
    1109. Actual fraud is not a viable basis for denying coverage
    because the parties agree that there is no evidence of intent to
    deceive. Summary judgment also cannot be entered on the
    alternative basis of legal fraud because reasonable persons
    could conclude that Question 10(c) elicited a statement of
    opinion. 
    Anderson, 727 P.2d at 1070
    .
    B. Denial of coverage based on the language of the
    policy
    James River argues that it was entitled to summary judg-
    ment on the issue of coverage even if fraud did not occur
    because Section III(a)(1) of the policy excludes coverage for
    claims arising from a legal service “rendered prior to the
    effective date of the Policy if any insured knew or could have
    reasonably foreseen that the . . . [service] could give rise to
    a ‘claim.’ ” James River contends that this language excluded
    coverage for the Nolan claim because the claim was reason-
    ably foreseeable.
    [7] We hold that summary judgment is also unwarranted on
    the basis of policy Section III(a)(1) because it is not clear that
    the Nolan claim was reasonably foreseeable. The Nolans
    never suggested in their communications with Hebert Schenk
    that they would bring a “claim.”3 Nothing in the April 27,
    3
    Because the application does not define “claim,” we interpret the use
    of that word in Question 10(c) in accordance with its ordinary meaning.
    JAMES RIVER INS. v. HEBERT SCHENK                 4473
    2004 letter demanded or threatened a future demand for
    money damages or other legal remedies. To the contrary, the
    Nolans stated that Hebert could “bring [the] matter to a close”
    simply by returning their documents and waiving fees. Hebert
    promptly complied with these requests. Viewing this evidence
    in the light most favorable to Hebert Schenk, 
    Jones, 557 F.2d at 1310
    , the firm could reasonably conclude that a malpractice
    claim would not follow.
    C.    Bad faith
    [8] To commit bad faith, an insurer must (1) act unreason-
    ably toward the insured and (2) either know that it was acting
    unreasonably or demonstrate such reckless disregard to the
    reasonableness of its actions that knowledge of reasonable-
    ness may be imputed. Trus Joist Corp. v. Safeco Ins. Co. of
    Am., 
    735 P.2d 125
    , 134 (Ariz. Ct. App. 1986). The first ele-
    ment of this test is objective and asks whether the insurer
    acted in a “manner consistent with the way a reasonable
    insurer would be expected to act under the circumstances.” 
    Id. The second
    element is subjective and requires “consciously
    unreasonable conduct.” 
    Id. The insurer
    may commit bad faith
    not only by intentionally and unreasonably denying a claim,
    but also by intentionally processing, evaluating, or paying a
    claim in an unreasonable manner. Zilisch v. State Farm Mut.
    Auto. Ins. Co., 
    995 P.2d 276
    , 279 (Ariz. 2000).
    Hebert Schenk’s counterclaim alleged that James River is
    liable for bad faith for (1) failing to promptly process the
    claim for coverage, (2) failing to investigate the claim, (3)
    failing to effectuate a prompt and fair settlement, (4) failing
    to act reasonably in evaluating the claim, (5) failing to con-
    State Farm Mut. Auto. Ins. Co. v. Novak, 
    807 P.2d 531
    , 535 (Ariz. Ct.
    App. 1990). A “claim” is a “demand for money, property, or a legal rem-
    edy to which one asserts a right.” Black’s Law Dictionary 264 (8th ed.
    2004). The insurance policy employs a similar definition. 
    See supra
    Fac-
    tual and Procedural Background.
    4474          JAMES RIVER INS. v. HEBERT SCHENK
    sider the firm’s interests, and (6) jeopardizing the firm’s
    security under the insurance policy. One alleged result of this
    conduct was that Hebert Schenk was required to provide its
    own defense against the Nolans’ claim. The firm also alleges
    that James River is liable for bad faith for submitting privi-
    leged and detailed billing records from the malpractice
    defense to support the motion for summary judgment on the
    issue of coverage.
    [9] We conclude that the district court erred in entering
    summary judgment on the counterclaim of bad faith. James
    River could satisfy its initial burden of production under Rule
    56 either by introducing “evidence negating an essential ele-
    ment” of the counterclaim or by showing that Hebert Schenk
    “does not have enough evidence of an essential element of
    [bad faith] . . . to carry its ultimate burden of persuasion at
    trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 
    210 F.3d 1099
    , 1105-06 (9th Cir. 2000). James River did neither. Its
    motion sought summary judgment only “to the extent [that the
    counterclaims] are based on the allegation that James River
    ‘failed’ to provide a defense in the underlying litigation.” The
    motion was accompanied by evidence demonstrating that a
    defense had been provided. Hebert Schenk’s counterclaim of
    bad faith, however, does not rely upon the alleged failure to
    provide a defense. It is clear to us that James River could both
    arrange for Hebert Schenk’s defense under a reservation of
    rights and also, for example, commit bad faith by failing to
    investigate the claim prior to seeking declaratory judgment, or
    by submitting privileged billing records from the malpractice
    defense to support its motion for summary judgment on the
    coverage dispute. See 
    Zilisch, 995 P.2d at 280
    (explaining that
    a failure to investigate adequately can constitute bad faith);
    Parsons v. Cont’l Nat’l Am. Group, 
    550 P.2d 94
    , 99 (Ariz.
    1976) (holding that it is against public policy for an insurer
    to provide for an insured’s defense and then use confidential
    information gathered from the defense against the insured in
    a subsequent coverage dispute). That James River provided a
    defense merely negates one of the alleged consequences of
    JAMES RIVER INS. v. HEBERT SCHENK                   4475
    the bad faith, not that the handling of the claim was in various
    respects objectively and subjectively unreasonable. Because
    James River did not satisfy its initial burden of production,
    Hebert Schenk was not required to demonstrate a genuine
    issue of material fact.4 Celotex Corp. v. Catrett, 
    477 U.S. 317
    ,
    323 (1986).
    CONCLUSION
    For the foregoing reasons, the judgment of the district court
    is
    REVERSED and REMANDED.
    4
    We need not decide whether the district court appropriately refused to
    consider the expert testimony that Hebert Schenk submitted in support of
    its motion for reconsideration. Because James River failed to meet its ini-
    tial burden under Rule 56, summary judgment was inappropriate regard-
    less of the content of the additional evidence.
    

Document Info

Docket Number: 06-15622oa

Filed Date: 4/25/2008

Precedential Status: Precedential

Modified Date: 10/14/2015

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