Curtis Oswalt v. Resolute Industries Inc

FILED
NOT FOR PUBLICATION DEC 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CURTIS OSWALT; FEDERAL No. 11-35676
INSURANCE COMPANY,
D.C. No. 2:08-cv-01600-MJP
Plaintiffs - Appellees,
v. MEMORANDUM *
RESOLUTE INDUSTRIES INC,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Submitted November 8, 2012 **
Seattle, Washington
Before: W. FLETCHER and FISHER, Circuit Judges, and TUCKER,
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Josephine Staton Tucker, United States District Judge
for the Central District of California, sitting by designation.
This is an appeal from the district court’s order granting a prevailing party’s
motion to enforce a supersedeas bond upon the Ninth Circuit’s affirmation of a
trial verdict. In the original bench trial, the district court found Resolute Industries,
Inc. liable for nearly $250,000 in damages to Curtis Oswalt’s boat caused by the
negligence of a Resolute employee. The Ninth Circuit affirmed. Oswalt moved to
enforce judgment against Resolute based on the supersedeas bond Resolute had
obtained prior to appeal. Resolute opposed Oswalt’s motion on the ground that the
liability of manufacturer Webasto Products NA, Inc. had not yet been determined,
and thus another party could still be found 100 percent liable; it also objected that
the case was not final under Rule 54(b). The court rejected Resolute’s arguments
and granted Oswalt’s motion. Resolute appealed. We review a district court’s
decision to execute a bond de novo. Contractors Equip. Maint. Co., Inc. ex rel.
United States v. Bechtel Hanford, Inc., 514 F.3d 899, 903 (9th Cir. 2008). We
have jurisdiction under 28 U.S.C. § 1291 and now affirm.
Resolute summarizes the issue before us in its reply brief: “can a party be
liable for an entire judgment, when there still existed [sic] a possibility that another
party may be found 100 percent liable for the damages to the plaintiff.” The
answer is yes. In admiralty, joint and several liability applies to joint tortfeasors
just as at common law. See McDermott, Inc. v. AmClyde, 511 U.S. 202, 220-21
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(1994). “If the independent tortious conduct of two or more persons is a legal
cause of an indivisible injury, each person is jointly and severally liable for the
recoverable damages caused by the tortious conduct.” Restatement (Third) of
Torts: Apportionment Liab. § C18 (2000). The district court, affirmed by the
Ninth Circuit, has found Resolute’s independent tortious conduct to be a legal
cause of the damage to Oswalt’s boat. Oswalt v. Resolute Indus., Inc., 642 F.3d
856 (9th Cir. 2011). If the Ninth Circuit reverses the trial court’s finding that
Webasto is not liable, at most this would mean that Webasto’s independent tortious
conduct is also a legal cause of the damage to Oswalt’s boat. This would leave
Resolute and Webasto jointly and severally liable. “When, under applicable law,
some persons are jointly and severally liable to an injured person, the injured
person may sue for and recover the full amount of recoverable damages from any
jointly and severally liable person.” Restatement (Third) of Torts: Apportionment
Liab. § 10 (2000). Thus, even if Webasto and Resolute are found jointly and
severally liable, Oswalt may recover the full amount from Resolute.
Resolute’s arguments based on Federal Rule of Civil Procedure 54(b) are
equally unpersuasive. Rule 54(b) addresses the question of a judgment’s finality
for appeal, not enforcement of judgments. See Fed. R. Civ. P. 54(a) (“‘Judgment’
as used in these rules includes a decree and any order from which an appeal lies.”).
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In this case, there has already been an appeal from a final judgment, and the district
court was merely enforcing the mandate, as it is obligated to do. United States v.
Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000) (“[L]ower courts are obliged to
execute the terms of a mandate . . . .”).
Finally, Oswalt correctly argues that the plain language of the bond requires
that Resolute pay if either the Court of Appeals affirms or dismisses the appeal.
Courts should interpret supersedeas bonds as contracts. Contractors Equip., 514
F.3d 899, 903 (9th Cir. 2008). The language of the bond is clear, and there is no
need to look beyond it. Resolute is obligated under the bond-contract to pay
Oswalt because we have already affirmed the trial verdict.
AFFIRMED.
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