879 F. 2d 865 - Columbia Grain Inc v. Buhler-Miag Inc

No. 88-3527.

United States Court of Appeals, Ninth Circuit.

Before TANG and SKOPIL, Circuit Judges, and HOWARD D. McKIBBEN,* District Judge.

Sharp Electric, Inc. ("Sharp"), a third-party defendant, appeals pursuant to 28 U.S.C. Sec. 1292(b) the denial of its motion for partial summary judgment. In its motion before the district court, Sharp argued that Or.Rev.Stat. Sec. 734.695 grants it immunity against suit as an insured of an insolvent insurer. On October 7, 1986, the magistrate entered an order denying Sharp's motion. On November 6, 1987, the magistrate amended the order by certifying the immunity issue for interlocutory appeal pursuant to Sec. 1292(b). This certification was made at the request of the parties. This court granted permission to appeal on January 27, 1988.

In its responding brief on appeal, filed July 7, 1988, Buhler-Miag, Inc., primarily focuses on a threshold issue of coverage. This issue was never raised in the court below, nor was it brought to the attention of the magistrate at the time of the Sec. 1292(b) certification. Buhler-Miag did file a motion approximately two months later on September 16, 1988, for an order submitting the insurance coverage issue to the merits panel. On October 6, 1988, the clerk of the court filed a minute order referring the issue to the merits panel.

We now consider this question. We find that as a consequence of the existence of a coverage issue, any opinion which we might render may not be dispositive of the case. From this new perspective we conclude that the initial decision to hear this appeal was improvidently granted. United States v. Bear Marine Serv., 696 F.2d 1117 (5th Cir.1983). Therefore, we vacate the prior order granting the appeal; United States v. 5.96 Acres of Land, 593 F.2d 884 (9th Cir.1979); and remand this case for further proceedings.

Sharp is allowed its costs on appeal pursuant to Fed.R.App.P. 39(a).