1 2 3
4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 C.C., as assignee, et al., Case No. 3:24-cv-05535-TMC 8 Plaintiffs, ORDER GRANTING IN PART AND 9 DENYING IN PART MOTION FOR v. PARTIAL SUMMARY JUDGMENT 10 UNITED STATES FIDELITY & 11 GUARANTY COMPANY, et al., 12 Defendants. 13
14 I. INTRODUCTION 15 Plaintiffs are former residents of the Kiwanis Vocational Home (“KVH”) who allege that 16 they were physically and sexually abused during their time at KVH in the 1980s and 1990s. 17 Dkt. 5 ¶ 4.17. At various times during this period, Defendants United States Fidelity & Guaranty 18 Company (“USF&G”), Granite State Insurance Company (“Granite State”), Insurance Company 19 of North America, and Federal Insurance Company (the latter two collectively, “Chubb”) 20 provided insurance to Kiwanis International (“Kiwanis”). Dkt. 90-1 at 17–125, 148–267; 21 Dkt. 90-2; Dkt. 90-3; Dkt. 90-4 at 1–64; Dkt. 92-3. Although KVH was operated by a separate 22 organization, Lewis County Youth Enterprises (“LCYE”), Plaintiffs allege that KVH was 23 affiliated with Kiwanis as a “major service project.” Dkt. 5 ¶ 4.16; C.C. v. Kiwanis Int’l, 24 1 568 P.3d 677, 679–80 (Wash. Ct. App. 2024), review denied, 4 Wn.3d 1030, 569 P.3d 736 2 (2025). 3 Decades after the alleged abuse, Plaintiffs brought lawsuits in Washington superior court
4 against Kiwanis, former KVH executive director Charles McCarthy, former KVH interim 5 executive director Guy Cornwell, and others. Id. ¶¶ 1.2–1.4; Dkt. 92-1 at 4–6. These lawsuits 6 (the “Underlying Actions”) resulted in covenant judgments between Plaintiffs, McCarthy, and 7 Cornwell, under which McCarthy and Cornwell assigned their rights against Defendants to 8 Plaintiffs. Dkt. 92-1 at 6–7; Dkt. 90-12 at 99–136. Plaintiffs then filed this action against 9 Defendants. Dkt. 1. 10 Plaintiffs now seek partial summary judgment on four issues: (1) whether McCarthy and 11 Cornwell are insured as Kiwanis members under certain policies issued by Defendants; 12 (2) whether McCarthy and Cornwell are insured as Kiwanis affiliates under policies issued by
13 USF&G and Granite State; (3) whether McCarthy and Cornwell are insured under certain 14 policies issued by Chubb to the extent that their liability arises from Kiwanis activities or 15 activities on Kiwanis’s behalf; and (4) whether Washington’s “continuous trigger” rule applies 16 such that a Plaintiff’s bodily injury would trigger coverage under a policy so long as the injury 17 arose or continued during the time that policy was in effect. Dkt. 89 at 2–3. For the following 18 reasons, the Court agrees with Plaintiffs that Cornwell was insured under the primary Chubb 19 policies in effect from November 1988 to November 1991, but only for any Kiwanis activities or 20 activities he undertook on Kiwanis’s behalf. The Court therefore GRANTS summary judgment 21 to Plaintiffs on that narrow issue. However, the Court DENIES summary judgment on all 22 remaining issues raised by Plaintiffs.
23 24 1 II. BACKGROUND This litigation involves many insurance policies with different language and definitions 2 for the policy terms therein. Below, the Court summarizes each policy that Defendants issued to 3 Kiwanis during the relevant period. 4 5 A. USF&G policies USF&G issued three primary insurance policies to Kiwanis during the relevant period: 6 Policy 1CC A 97254, which ran from October 1977 to October 1980; Policy 1CC D 63876, 7 which ran from October 1980 to October 1983; and Policy 1CC 017 254006, which ran from 8 October 1983 to October 1985. Dkt. 90-1 at 16–39 (Policy ICC A 97254), 45–80 (Policy 1 CC D 9 63876), 81–101 (Policy 1CC D 63876); see Dkt. 91 at 4 (representing that Policy 1CC 017 10 254006 was canceled in October 1985). 11 Under these policies, a “Named Insured” included Kiwanis, Kiwanis members, local 12 Kiwanis Clubs, Kiwanis Districts, Kiwanis Divisions, subsidiaries and affiliates, Kiwanis Club 13 Foundations, Kiwanis District Foundations, Kiwanis International Foundations, Key Clubs and 14 members, Circle K Clubs and members, Builder Clubs and members, Kewanettes, and volunteer 15 workers. Dkt. 90-1 at 19, 52, 91. Each policy also included an endorsement defining “persons 16 insured” to include “any member of the Named Insured but only with respect to his liability for 17 activities of the Named Insured or activities performed by such member on behalf of the Named 18 Insured.” Id. at 28, 57, 94. 19 USF&G also issued Policy CEP 126205, a first-layer excess policy that ran from 20 May 1980 to May 1981. Id. at 40–44. Under this policy, a “Named Insured” included “the person 21 or organization named in Section 1.1 and . . . any subsidiary thereof and any other organization 22 coming under the Named Insured’s control and active management,” so long as written notice 23 was provided to USF&G. Id. at 43. An “insured” included anyone insured by an underlying 24 1 insurance policy “but only to the extent of the insurance afforded to such other person or 2 organization by such underlying insurance.” Id. 3 B. Granite State policies
4 Granite State issued three umbrella liability policies to Kiwanis during the relevant 5 period: Policy 6680-7665, which ran from October 1, 1980 to October 1, 1981; Policy 6681- 6 8744, which ran from October 1, 1981 to October 1, 1982; and Policy 6682-9861, which ran 7 from October 1, 1982 to October 1, 1983. Id. at 103–13 (Policy 6680-7665), 114–20 8 (Policy 6681-8744), 121–25 (Policy 6682-9861). These policies defined “Named Assured” to 9 include Kiwanis, Kiwanis members, local Kiwanis Clubs, Kiwanis Districts, Kiwanis Divisions, 10 subsidiaries and affiliates, Kiwanis Club Foundations, Kiwanis District Foundations, Kiwanis 11 International Foundations, Key Clubs and members, Circle K Clubs and members, Builder Clubs 12 and members, Kewanettes, and volunteer workers. Id. at 111, 116, 123. Policy 6680-7665 also
13 provided coverage to any person insured by the corresponding primary policy—here, USF&G 14 Policy 1CC D 63876—“but not for broader coverage than is available” in the underlying policy. 15 Id. at 105. 16 C. Chubb policies The Court summarizes each policy issued by Chubb individually. 17 1. Insurance Company of North America (“INA”) Policy OGL G10790499 18 This primary policy ran from November 1988 to November 1990. Id. at 148– 217. Under 19 this policy, Named Insureds included Kiwanis, Kiwanis Club Foundations, Kiwanis District 20 Foundations, Kiwanis International Foundations, Key Clubs, Circle K Clubs, Builders Clubs, 21 Kewanettes, and Kiwanianne Clubs. Id. at 178, 186, 217. A Named Insured who was designated 22 in the policy declarations as an individual was only covered by the policy “with respect to the 23 conduct of a business of which [the Named Insured is] the sole owner.” Id. at 156. 24 1 Under this policy, members of a Named Insured organization were insured “only with 2 respect to their liability for [the Named Insured’s] activities or activities they perform on [the 3 Named Insured’s] behalf.” Id. at 164. The policy defined “members” to include “the entire
4 members of all entities listed under the heading ‘Named Insured’ as computed in accordance 5 with the manuals in use by the company.” Id. at 195. 6 2. INA Policy XOO G10791455 7 This umbrella liability policy ran from November 1988 to November 1989. Dkt. 90-2 at 8 105–30. Under this policy, the “Named Insured” was defined as “Kiwanis International and its 9 owned, controlled, subsidiary or affiliated organizations now or hereafter constituted,” which 10 included local Kiwanis clubs, Kiwanis districts, Kiwanis divisions, Kiwanis club foundations, 11 Kiwanis district foundations, Kiwanis international foundations, key clubs, circle K clubs, 12 builder clubs, Kewanettes, and Kiwanianne clubs. Id. at 109–10.
13 3. INA Policy SVP D16962351 This primary policy ran from November 1990 to November 1994.1 Dkt. 90-1 at 218–67; 14 Dkt. 90-2 at 1–103. 15 From 1990 to 1991, the policy defined “Named Insureds” as “Kiwanis International and 16 its owned, controlled, subsidiary or affiliated organizations now or hereafter constituted 17 including” Kiwanis, Kiwanis Club Foundations, Kiwanis District Foundations, Kiwanis 18 International Foundations, Key Clubs, Circle K Clubs, Builders Clubs, Kewanettes, Kiwanianne 19 Clubs, Kiwanis Districts, Kiwanis Divisions, and local Kiwanis Clubs. Dkt. 90-1 at 230. From 20 1992 to 1994, the policy included a nearly identical definition of “Named Insured,” except that it 21 did not name Kiwanianne Clubs or local Kiwanis Clubs. Dkt. 90-2 at 51, 65. 22 23 1 Information regarding the policy’s definitions of “Insured” and “Named Insured” from 1991 to 24 1992 is not included in the record before the Court. See Dkt. 90-1 at 218–67; Dkt. 90-2 at 1–103. 1 From 1990 to 1991 and 1993 to 1994, the policy defined “Insured” to include members of 2 any Named Insured, “but only with respect to their liability for [the Named Insured’s] activities 3 or activities they perform on [the Named Insured’s] behalf.” Dkt. 90-1 at 248; Dkt. 90-2 at 83.
4 The policy did not include this provision from 1992 to 1993. See Dkt. 90-2 at 51–54. 5 4. INA Policy XOO G14552467 6 This umbrella liability policy ran from November 1990 to November 1991. Id. at 132–36; 7 Dkt. 90-3 at 1–18. The policy defined “Named Insured” as “Kiwanis International and its owned, 8 controlled, subsidiary or affiliated organizations now or hereafter constituted,” which included 9 local Kiwanis Clubs, Kiwanis Districts, Kiwanis Divisions, Kiwanis Club Foundations, Kiwanis 10 District Foundations, Kiwanis International Foundations, Key Clubs, Circle K Clubs, Builder 11 Clubs, Kewanettes, and Kiwanianne Clubs. Dkt. 90-3 at 13. 12 5. INA Policy XOO G15589760 This umbrella liability policy ran from November 1991 to November 1994. 13 Dkt. 90-2 at 52; Dkt. 90-3 at 19–122; Dkt. 90-4 at 1–11. From 1991 to 1992, the policy defined 14 “Named Insured” as “Kiwanis International and its owned, controlled, subsidiary or affiliated 15 organizations now or hereafter constituted,” which included local Kiwanis Clubs, Kiwanis 16 Districts, Kiwanis Divisions, Kiwanis Club Foundations, Kiwanis District Foundations, Kiwanis 17 International Foundations, Key Clubs, Circle K Clubs, Builder Clubs, Kewanettes, and 18 Kiwanianne Clubs. Dkt. 90-3 at 45. From 1993 to 1994, the policy had a nearly identical 19 definition of “Named Insured” but did not include Kiwanianne Clubs. Id. at 110. 20 The record contains contradictory definitions of “Named Insured” under the 21 November 1992 to November 1993 version of the policy. One document shows that the policy 22 defined “Named Insured” identically to the underlying policy, SVP D16962351. Dkt. 90-2 at 52. 23 Another document shows that the policy defined “Named Insured” to include Kiwanis members, 24 1 Kiwanis Clubs, Kiwanis Districts, Kiwanis Divisions, Kiwanis Club Foundations, Kiwanis 2 District Foundations, Kiwanis International Foundations, Key Clubs and members, Circle K 3 Clubs and members, Builders Clubs and members, Kewanettes, and non-member volunteer
4 workers. Dkt. 90-3 at 70. 5 6. Federal Insurance Company (“Federal”) policy 7909-28-88 6 This second-layer excess liability policy ran from March 1990 to November 1994. 7 Dkt. 90-4 at 13–64. Policy (91) 7909-28-88, which ran from November 1990 to November 1991, 8 defined “Named Insured” as “Kiwanis International and its owned, controlled, subsidiary or 9 affiliated organizations now or hereafter constituted,” which included Kiwanis members, local 10 Kiwanis Clubs, Kiwanis Districts, Kiwanis Divisions, Kiwanis Club Foundations, Kiwanis 11 District Foundations, Kiwanis International Foundations, Key Clubs and members, Circle K 12 Clubs and members, Builders Clubs and members, Kewanettes, Kiwanianne Clubs and members,
13 and non-member volunteer workers. Id. at 28. This definition is not included in the other 14 versions of this policy running from March 1990 to November 1990, November 1991 to 15 November 1992, November 1992 to November 1993, and November 1993 to November 1994. 16 See id. at 21–23, 30–64. 17 Insurance coverage under Policy (91) 7909-28-88 applied “only excess” of its underlying 18 policy, INA Policy XOO G14552467, and it incorporated the “terms, conditions, definitions, 19 endorsements, exclusions, and limitations” of that policy. Id. at 13, 26. Policy (93) 7909-28-88, 20 which ran from November 1992 to November 1993, also incorporated the “terms, conditions, 21 definitions, endorsements, exclusions, and limitations” of its underlying policy, INA Policy 22 XOO G15589760. Id. at 30, 32. Policy (94) 7909-28-88, which ran from November 1993 to
23 November 1994, “follow[ed] the terms and conditions of” INA Policy XOO G15589760. Id. at 24 53, 55. 1 D. State court litigation 2 In 2022, the superior court in one of the Underlying Actions concluded that Kiwanis 3 lacked an actual or apparent agency relationship with KVH and granted summary judgment to
4 Kiwanis on that issue. Dkt. 94 at 59–61, 64–65. The Washington Court of Appeals reversed that 5 ruling, concluding that “there is a genuine issue of material fact regarding whether an actual 6 agency relationship between KVH and Kiwanis International existed . . . [and] whether an 7 apparent agency relationship between KVH, Kiwanis International, and the local clubs existed.” 8 C.C., 568 P.3d at 679. 9 First, the court determined that an actual agency relationship may have existed because 10 “Kiwanis International had the right to control certain aspects of KVH operations, including 11 employment matters.” Id. ¶ 91. Specifically, the court concluded that “there is a genuine issue of 12 material fact regarding whether Kiwanis International had the right [to] control the manner in
13 which KVH made employment decisions and the manner in which the [KVH] boards 14 implemented rules regarding the treatment and supervision of residents.” Id. ¶ 93. 15 As for apparent agency, the court reasoned that there is “a genuine issue of material fact 16 regarding whether Kiwanis International and the local [Kiwanis] clubs made objective 17 manifestations that led the State to believe that Kiwanis International and the local clubs were 18 the principals of KVH.” Id. ¶ 120. It further determined that “there is a genuine issue of material 19 fact regarding whether the State relied on the apparent agency relationship between Kiwanis 20 International and the local clubs as principals and KVH as their agent to the State’s detriment.” 21 Id. ¶ 124. 22 The question of whether KVH and Kiwanis had any kind of agency relationship remains
23 unresolved in the Underlying Actions. 24 1 E. Procedural history 2 On July 3, 2024, Plaintiffs filed suit in this matter. Dkt. 1. Two weeks later, Plaintiffs 3 filed an amended complaint alleging that Defendants are liable for breach of contract,
4 negligence, bad faith, violations of the Consumer Protection Act, and violations of the Insurance 5 Fair Conduct Act. Dkt. 5 ¶¶ 5.1–11.1. 6 On July 1, 2025, Plaintiffs moved for partial summary judgment. Dkts. 89–90. On 7 July 23, USF&G, Granite State, and Chubb each responded in opposition to the motion. 8 Dkts. 91–97. On July 29, Plaintiffs filed a reply. Dkts. 98–100. The motion is now ripe for the 9 Court’s review. 10 III. LEGAL STANDARD “The court shall grant summary judgment if the movant shows that there is no genuine 11 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 12 Civ. P. 56(a). A dispute as to a material fact is genuine “if the evidence is such that a reasonable 13 jury could return a verdict for the nonmoving party.” Villiarimo v. Aloha Island Air, Inc., 14 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 15 (1986)). 16 In an insurance case, “[t]he party asserting coverage bears the burden of proving the loss 17 is a covered occurrence within the policy period.” Walla Walla Coll. v. Ohio Cas. Ins. Co., 18 149 Wn. App. 726, 730, 204 P.3d 961 (2009). “If such a showing has been made, the insurer can 19 nevertheless avoid liability by showing the loss is excluded by specific policy language.” 20 Overton v. Consol. Ins. Co., 145 Wn.2d 417, 431–32, 38 P.3d 322 (2002). Where, as here, the 21 party moving for summary judgment “will have the burden of proof on an issue at trial, the 22 movant must affirmatively demonstrate that no reasonable trier of fact could find other than for 23 24 1 the moving party.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018) (quoting 2 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007)). 3 The evidence relied upon must be able to be “presented in a form that would be
4 admissible in evidence.” See Fed. R. Civ. P. 56(c)(2). “An affidavit or declaration used to 5 support or oppose a motion must be made on personal knowledge, set out facts that would be 6 admissible in evidence, and show that the affiant or declarant is competent to testify on the 7 matters stated.” Fed. R. Civ. P. 56(c)(4); see also Fed. R. Ev. 602 (“A witness may testify to a 8 matter only if evidence is introduced sufficient to support a finding that the witness has personal 9 knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s 10 own testimony.”). 11 Conclusory, nonspecific statements in affidavits are not sufficient, and “missing facts” 12 will not be “presume[d].” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990). However,
13 “‘[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn 14 in his favor.’” Tolan v. Cotton, 572 U.S. 650, 651 (2014) (per curiam) (quoting Anderson, 15 477 U.S. at 255). Consequently, “a District Court must resolve any factual issues of controversy 16 in favor of the non-moving party only in the sense that, where the facts specifically averred by 17 that party contradict facts specifically averred by the movant, the motion must be denied.” Lujan, 18 497 U.S. at 888 (internal quotations omitted). 19 Interpretation of insurance policy terms is a question of law. Vision One, LLC v. Phila. 20 Indem. Ins. Co., 174 Wn.2d 501, 512, 276 P.3d 300 (2012). An insurance policy “must be read as 21 the average person would read it; it should be given a ‘practical and reasonable rather than a 22 literal interpretation’, and not a ‘strained or forced construction’ leading to absurd results.”
23 Moeller v. Farmers Ins. Co. of Wash., 173 Wn.2d 264, 272, 267 P.3d 998 (2011) (quoting Eurick 24 v. Pemco Ins. Co., 108 Wn.2d 338, 341, 738 P.2d 251 (1987)). The policy must be considered as 1 a whole, and “if the policy language is clear and unambiguous, [courts] must enforce it as 2 written; [courts] may not modify it or create ambiguity where none exists.” Quadrant Corp. v. 3 Am. States Ins. Co., 154 Wn.2d 165, 171, 110 P.3d 733 (2005). Undefined policy terms are
4 assigned their ordinary meanings, and any ambiguities should be “construed against the drafter- 5 insurer.” Vision One, 174 Wn.2d at 512. Any exclusions should also be strictly construed against 6 the insurer. Id. 7 IV. DISCUSSION 8 Defendants move to strike many of Plaintiffs’ exhibits, arguing that they were not 9 disclosed earlier in litigation, are improperly authenticated, and contain inadmissible hearsay. In 10 addition, Chubb argues that summary judgment would be premature because its duty to 11 indemnify McCarthy and Cornwell depends on the resolution of facts that are currently being 12 litigated in state court. Before reaching the merits of Plaintiffs’ motion, the Court discusses these
13 evidentiary and procedural objections. 14 A. The Court strikes Plaintiffs’ Exhibits 10, 11, 21, 22, 32, 34–36, 43, 44, 46, 48, 52, 67, and 80–84 because Plaintiffs failed to produce them before filing the motion 15 for summary judgment and did not show that this failure was substantially justified or harmless. 16 USF&G argues that the Court should exclude 79 of Plaintiffs’ 84 exhibits under Federal 17 Rule of Civil Procedure 37(c)(1) because Plaintiffs failed to disclose them to Defendants before 18 moving for summary judgment. Dkt. 91 at 11–12. USF&G identifies five exhibits that Plaintiffs 19 produced in this litigation and 16 exhibits that it obtained in another matter. Id. App’x A. In 20 addition, it identifies 29 exhibits that were “possibly produced in [this] litigation” and 15 exhibits 21 that were “possibly obtained by USF&G in another matter,” meaning that USF&G has copies of 22 those documents with different Bates numbers. Id. Finally, it lists 19 exhibits that were neither 23 produced in this matter nor obtained elsewhere. Id. 24 1 Plaintiffs do not dispute that they failed to disclose certain exhibits before moving for 2 summary judgment. See Dkt. 98 at 12. Instead, they argue that such failure is harmless because 3 Defendants “have been aware of and involved in the defense of” the related state court litigation.
4 Id. 5 Under Rule 37(c), “[i]f a party fails to provide information or identify a witness as 6 required by [Federal Rule of Civil Procedure] 26(a) or (e), the party is not allowed to use that 7 information or witness to supply evidence on a motion . . . unless the failure was substantially 8 justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Required disclosures under Rule 26(a) include 9 “all documents, electronically stored information, and tangible things that the disclosing party 10 has in its possession, custody, or control and may use to support its claims or defenses.” Fed. R. 11 Civ. P. 26(a)(1)(A)(ii). 12 “Rule 37(c)(1) is an ‘automatic’ sanction that prohibits the use of improperly disclosed
13 evidence.” Merchant v. Corizon Health, Inc., 993 F.3d 733, 740 (9th Cir. 2021) (quoting Yeti by 14 Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)). “The party facing 15 sanctions bears the burden of proving that its failure to disclose the required information was 16 substantially justified or is harmless.” Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 52 F.4th 17 1054, 1073 (9th Cir. 2022) (quoting R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1246 18 (9th Cir. 2012)). Factors bearing on harmlessness include “(1) prejudice or surprise to the party 19 against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the 20 likelihood of disruption of trial; and (4) bad faith or willfulness in not timely disclosing the 21 evidence.” Liberty Ins. Corp. v. Brodeur, 41 F.4th 1185, 1192 (9th Cir. 2022) (quoting Silvagni 22 v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 242 (D. Nev. 2017)).
23 While Plaintiffs assert that none of their proffered evidence “is new or a surprise” to 24 Defendants, they do not identify which of these documents were produced in state court 1 litigation involving these Defendants. Dkt. 98 at 12. Nor do they make any argument that their 2 failure to produce these documents was justified. Id. Plaintiffs’ vague statements regarding 3 Defendants’ knowledge of underlying facts do not meet their burden of proving that their failure
4 to disclose was harmless. However, USF&G concedes that it already possessed copies of 60 of 5 the 79 challenged exhibits, albeit with different Bates numbers on 34 documents. See Dkt. 91 6 App’x A. The Court therefore concludes that Plaintiffs’ failure to produce those 60 documents 7 was not prejudicial. The Court strikes the 19 exhibits that USF&G identifies as having neither 8 been produced in this litigation or in another matter: Exhibits 10, 11, 21, 22, 32, 34–36, 43, 44, 9 46, 48, 52, 67, and 80–84. 10 B. The Court declines to strike Plaintiffs’ evidence on the basis of Defendants’ hearsay and authentication objections. 11 Defendants also object to many of Plaintiffs’ exhibits on the grounds that they are 12 improperly authenticated or contain inadmissible hearsay.2 Dkt. 91 at 12–13; Dkt. 93 at 23–25; 13 Dkt. 95 at 5–7. 14 At the summary judgment stage, “[a] party may object that the material cited to support 15 or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. 16 Civ. P. 56(c)(2). Once such an objection has been lodged, “[t]he burden is on the proponent to 17 show that the material is admissible as presented or to explain the admissible form that is 18 anticipated.” Id. advisory committee’s note to 2010 amendment. 19 When evaluating these objections, the Court focuses on whether the content of the 20 evidence—not its form—may be admissible at trial. Sandoval v. County of San Diego, 985 F.3d 21 22 2 Granite State also objects to Exhibits 32–37 and 77 on the basis that they “consist of allegations 23 and assertions of Plaintiffs’ counsel.” Dkt. 95 at 7. The Court has stricken some of these documents under Rule 37(c)(1). See infra Part IV.A. As for the remaining documents, the Court 24 does not consider them for the truth of the matters asserted therein. 1 657, 666 (9th Cir. 2021). This means that “[i]f the contents of a document can be presented in a 2 form that would be admissible at trial—for example, through live testimony by the author of the 3 document—the mere fact that the document itself might be excludable hearsay provides no basis
4 for refusing to consider it.” Id. This principle applies regardless of which party submitted the 5 challenged evidence. Cont’l Cas. Co. v. Heredia, No. C24-0917-JCC, 2025 WL 2161543, at *2 6 (W.D. Wash. July 30, 2025). 7 Here, Defendants do not argue that Plaintiffs’ exhibits could not be presented in an 8 admissible form at trial; they merely assert that the challenged exhibits are inadmissible as 9 currently presented. See Dkt. 91 at 12–13; Dkt. 93 at 23–25; Dkt. 95 at 5–7. These objections, 10 based on form rather than contents, are “premature” at this stage and do not warrant exclusion of 11 the proffered evidence. See Zimmerman v. PeaceHealth, No. 3:22-CV-05960, 2025 WL 12 2458051, at *12 (W.D. Wash. Aug. 26, 2025); see also Floyd v. Saber Fitness Hegenberger,
13 LLC, No. 24-CV-01278-TSH, 2025 WL 2173413, at *8 (N.D. Cal. July 31, 2025) (“[D]istrict 14 courts in this circuit have routinely overruled authentication and hearsay challenges at the 15 summary stage where the evidence could be presented in an admissible form at trial.” (alteration 16 in original) (quoting Hodges v. Hertz Corp., 351 F. Supp. 3d 1227, 1232 (N.D. Cal. 2018))). 17 However, the Court notes that Plaintiffs rely on several pieces of evidence that are decades old, 18 and Plaintiffs do not explain how they intend to present that evidence in an admissible form 19 before a jury. See, e.g., Dkt. 90 at 20–39. The Court’s decision to consider the evidence on 20 summary judgment does not mean that the Court will deem this evidence admissible at trial, 21 absent a showing from Plaintiffs that the evidence may be admitted. 22 C. The Court does not decide whether any duty to indemnify exists.
23 Chubb seeks denial of Plaintiffs’ motion under Federal Rule of Civil Procedure 56(d). 24 Dkt. 93 at 22–23. Under this rule, if a party opposing a motion for summary judgment “shows by 1 affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its 2 opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain 3 affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R.
4 Civ. P. 56(d). Chubb argues that the dispute in this case concerns only its duty to indemnify, not 5 its duty to defend, and relief under Rule 56(d) is warranted because it cannot present all relevant 6 facts to oppose the motion for summary judgment until those facts have been adjudicated in state 7 court. Dkt. 93 at 11–13, 22–23. Plaintiffs disagree, arguing that Chubb has failed to identify the 8 specific facts it needs to oppose the motion and that the motion does not seek a ruling that 9 Defendants had a duty to indemnify McCarthy and Cornwell. Dkt. 98 at 4–5, 13. 10 Chubb is correct that this case concerns only its duty to indemnify. In the Amended 11 Complaint, Plaintiffs’ only factual allegations related to the duty of defend are (1) “USF&G 12 unreasonably denied McCarthy’s and Cornwell’s defense tenders under the primary policies
13 issued by USF&G” and (2) “[a]lthough INA purportedly agreed to defend McCarthy under the 14 primary policies, it neither retained defense counsel to represent him, nor paid any portion of his 15 defense costs.” Dkt. 5 ¶¶ 4.28, 4.30. Plaintiffs do not allege that Chubb, via either INA or 16 Federal, disputes its duty to defend McCarthy and Cornwell. Therefore, the only insurer for 17 which the duty of defend is disputed is USF&G. 18 This distinction is important because “[t]he duty to indemnify exists only if the insurance 19 policy actually covers the insured’s liability, whereas the duty to defend arises when the policy 20 could conceivably cover allegations in a complaint.” Xia v. ProBuilders Specialty Ins. Co., 21 188 Wn.2d 171, 182, 400 P.3d 1234 (2017), as modified (Aug. 16, 2017). “The duty to defend 22 generally is determined from the ‘eight corners’ of the insurance contract and the underlying
23 complaint.” Expedia, Inc. v. Steadfast Ins. Co., 180 Wn.2d 793, 803, 329 P.3d 59 (2014), as 24 corrected (Aug. 6, 2014). A summary judgment ruling on the duty to indemnify, however, is 1 “premature” when factual issues that may preclude coverage remain in dispute. Indian Harbor 2 Ins. Co. v. City of Tacoma Dep’t of Pub. Utils., 354 F. Supp. 3d 1204, 1215 (W.D. Wash. 2018); 3 State Farm Fire & Cas. Co. v. Doucette, No. C16-5169BHS, 2016 WL 4793294, at *4 (W.D.
4 Wash. Sept. 14, 2016). 5 The declaration of Jonathan Torren, attached to Chubb’s opposition brief, states that 6 “Chubb cannot present all facts relevant to opposing Plaintiffs’ motion because the relevant 7 facts—including, in particular, whether Kiwanis International controlled LCYE— have not yet 8 been determined in the Underlying Actions.” Dkt. 94 ¶ 18. Because the question of Kiwanis’s 9 relationship to KVH remains unresolved in the Underlying Actions, the Court cannot and does 10 not adjudicate Defendants’ duties to indemnify McCarthy and Cornwell at this time. However, 11 the Court agrees with Plaintiffs that the question of whether McCarthy and Cornwell are insureds 12 under Chubb policies is a different, preliminary question from whether any duty to indemnify
13 exists. A court may interpret policy language on a motion for partial summary judgment, even 14 where “issues of fact remain in the broader case,” so long as those disputed factual issues do not 15 “implicate interpretation of the policy language” itself. Sixty-01 Ass’n of Apartment Owners v. 16 Pub. Serv. Ins. Co., No. C22-1373-JCC, 2023 WL 5152666, at *2 (W.D. Wash. Aug. 10, 2023). 17 Based on the information already before the Court, the Court may determine whether McCarthy 18 and Cornwell were insured for activities performed on Kiwanis’s behalf without reaching the 19 question of whether they actually performed any such activities. Therefore, “the Court declines 20 [Chubb’s] invitation to postpone ruling on these issues.” Id. 21 22
23 24 1 D. Plaintiffs have not established that McCarthy and Cornwell are insured as Kiwanis members under policies issued by Defendants. 2 Plaintiffs first seek summary judgment on the question of whether McCarthy and 3 Cornwell are insured as Kiwanis members under the USF&G policies, the Granite State policies, 4 and certain Chubb policies. Dkt. 89 at 12–15. 5 1. Plaintiffs have not shown that McCarthy and Cornwell were Kiwanis 6 members during the coverage periods of the USF&G and Granite State policies. 7 Granite State argues that Plaintiffs have failed to show that McCarthy and Cornwell were 8 members of Kiwanis during its policy periods.3 Dkt. 95 at 8–15. Although USF&G does not 9 dispute McCarthy and Cornwell’s Kiwanis membership, because Plaintiffs bear the burden of 10 proof the Court also considers this argument with regard to USF&G’s policy periods, which 11 overlap with Granite State’s. See Dkt. 91 at 5–6. 12 The Court agrees with Granite State that Plaintiffs have not submitted sufficient evidence 13 to establish that McCarthy was a Kiwanis member during the USF&G and Granite State policy 14 periods, which spanned from 1980 to 1985. McCarthy testified that he was a Kiwanis member 15 “[j]ust when [KVH] was formed” and that he was a member of the Centralia Kiwanis Club “[f]or 16 a short time.” Dkt. 90-6 at 94; Dkt. 90-7 at 75. In a declaration he submitted in the Underlying 17 Actions, McCarthy stated that LCYE was incorporated in 1977, and he became Executive 18 Director of KVH in 1978. Dkt. 96-5 ¶¶ 1–2. Other testimony in the record regarding McCarthy’s 19 Kiwanis membership is vague or speculative. See Dkt. 90-6 at 131 (testimony from Dale 20
21 3 Granite State seeks relief under Rule 56(d) because Plaintiffs failed to respond to its discovery requests, and Granite State “anticipates that Plaintiffs’ eventual discovery responses (and 22 potential deposition) will confirm that neither [McCarthy nor Cornwell] was a member or affiliate of Kiwanis during the period of the Granite State policies.” Dkt. 95 at 7–8. Because the 23 Court determines that Plaintiffs have not offered sufficient evidence that either individual was a Kiwanis member during the policy periods, the Court denies Granite State’s 56(d) request as 24 moot. 1 Shannon that he “believe[d]” McCarthy was a member of a Kiwanis club); Dkt. 90-8 at 17 2 (testimony from Cornwell that McCarthy had “been a Kiwanian for a long time”). 3 Moreover, it is undisputed that Cornwell was not a Kiwanis member during the USF&G
4 and Granite State policy periods. In a deposition submitted by Plaintiffs, Cornwell testified that 5 he likely became a Kiwanis member “a few months after” he began his employment with KVH 6 in 1986. Dkt. 90-9 at 76; see Dkt. 89 at 7. And Granite State offers both a letter from Cornwell’s 7 counsel stating that Cornwell was a Kiwanis member during his employment at KVH from 1986 8 to 1991 and a declaration by Cornwell stating that “[u]ntil 1986 [he] had never heard of KVH 9 and had no knowledge of its existence.” Dkt. 96-4 at 3; Dkt. 97-9 at 2–3. In the reply brief, 10 Plaintiffs concede that “Cornwell was not a Kiwanis member until he began employment at 11 KVH.” Dkt. 98 at 6. 12 Because Cornwell was not a Kiwanis member during the USF&G and Granite State
13 policy periods, he was not insured as a Kiwanis member under those policies. And because there 14 is insufficient evidence to show that McCarthy was a member during that time, the Court cannot 15 grant summary judgment to Plaintiffs on this issue. 16 2. Any coverage for Kiwanis members under the USF&G and Granite State policies is limited to liability for Kiwanis’s activities or activities they 17 performed on Kiwanis’s behalf. 18 Even if McCarthy were a Kiwanis member during the USF&G and Granite State policy 19 periods, it does not follow that he was insured under those policies for activities unrelated to his 20 affiliation with Kiwanis. The USF&G policies list “Kiwanis members” as Named Insureds, but 21 they also include an endorsement defining “persons insured” to include “any member of the 22 Named Insured but only with respect to his liability for activities of the Named Insured or 23 activities performed by such member on behalf of the Named Insured.” Dkt. 90-1 at 19, 28, 52, 24 57, 91, 94. Plaintiffs argue that any ambiguity created by these two provisions should be 1 interpreted in favor of coverage. Dkt. 89 at 14. But adopting an expansive, unrestricted reading 2 of the coverage afforded to Kiwanis members as Named Insureds would render the “persons 3 insured” endorsement superfluous, going against the directive that courts read an insurance
4 policy as a whole. Quadrant Corp., 154 Wn.2d at 171. And reading either the USF&G or Granite 5 State policies as providing coverage to Kiwanis members for all activities—even those unrelated 6 to their status as Kiwanis members—would lead to an absurd result. See Moeller, 173 Wn.2d at 7 272. As Granite State asserts in its brief, “Plaintiffs’ interpretation would effectively and 8 retroactively transform Kiwanis into an unlicensed insurance broker, placing insurance on behalf 9 of its members for personal and professional risks that Kiwanis does not itself share.” Dkt. 95 at 10 19. Plaintiffs ask the Court to adopt a strained interpretation that would provide expansive 11 coverage to anyone who happened to join a Kiwanis club, rather than a “practical and 12 reasonable” interpretation that Kiwanis members are insured for liability arising from their
13 connection with Kiwanis. See Moeller, 173 Wn.2d at 272. The Court declines to adopt Plaintiffs’ 14 construction, and partial summary judgment on this basis is denied. 15 3. Plaintiffs have not shown that McCarthy and Cornwell were insured as Kiwanis members under certain Chubb policies. 16 Plaintiffs argue that McCarthy and Cornwell are insureds under Federal Policy 17 (91) 7909-28-88 and the 1992 to 1993 iterations of INA Policies SVP D16962351 and 18 XOO G15589760 because those policies each included an endorsement listing “Kiwanis 19 members” as “Named Insureds.”4 Dkt. 89 at 12. Plaintiffs refer to these as the “Chubb No- 20 21 4 Documents in the record suggest that INA Policies SVP D16962351 and XOO G15589760 22 each contained an “abuse or molestation” exclusion. Dkt. 90-2 at 47; Dkt. 90-3 at 76. The parties have not raised the existence of these exclusions in their briefing. The burden of proving the 23 application of a policy exclusion lies with the insurer. Windcrest Owners Ass’n v. Allstate Ins. Co., 24 Wn. App. 2d 866, 871, 524 P.3d 683 (2022). Nothing in this order should be construed as 24 a ruling on the applicability of these exclusions. 1 Agency Policies.” Id. Chubb responds that McCarthy and Cornwell cannot be insureds under 2 these policies because the “Named Insured” endorsements in these policies apply only to 3 organizations, not individuals. Dkt. 93 at 14–15.
4 As with the USF&G and Granite State policies, it is not clear that McCarthy and 5 Cornwell were Kiwanis members during all relevant policy periods: 1990 to 1991 (Federal 6 Policy (91) 7909-28-88) and 1992 to 1993 (INA Policies SVP D16962351 and XOO 7 G15589760). Again, the letter from Cornwell’s counsel offered by Granite State asserts that he 8 was a Kiwanis member only from 1986 to 1991, placing his membership in the policy period for 9 Federal Policy (91) 7909-28-88 but not the other two policies, Dkt. 97-9 at 2–3, and the time 10 period of McCarthy’s membership in Kiwanis is not clear. 11 Even assuming that McCarthy and Cornwell were both Kiwanis members from 1990 to 12 1993, Plaintiffs have not shown that McCarthy and Cornwell were insured under these policies
13 as Kiwanis members. At the outset, it is not clear that two of the policies named by Plaintiffs 14 contain the endorsement that Plaintiffs describe. The “Named Insured” endorsement to the 1992– 15 93 iteration of INA Policy SVP D16962351 does not include Kiwanis members. See Dkt. 90-2 at 16 51. And as explained above, there are two documents in the record that appear to be the “Named 17 Insured” endorsement for INA Policy XOO G15589760, and they contain contradictory 18 information as to whether Kiwanis members are included. Id. at 52; Dkt. 90-3 at 70. Without 19 clear policy language identifying Kiwanis members as Named Insureds, the Court cannot grant 20 summary judgment to Plaintiffs on this issue. 21 By contrast, Federal Policy (91) 7909-28-88 did identify “Kiwanis members” as Named 22 Insureds, and its list of Named Insured entities, which included various Kiwanis-affiliated clubs
23 “and members” along with “non-member volunteer workers,” clearly contemplated that the word 24 “member” could apply to individuals. Dkt. 90-4 at 28. But as explained above, reading this 1 policy to afford expansive coverage to Kiwanis members unrelated to their status as such would 2 lead to an absurd result. Regardless, this policy applied only excess of INA Policy XOO 3 G14552467, which did not include Kiwanis members as Named Insureds. Dkt. 90-3 at 13;
4 Dkt. 90-4 at 13, 26; see Quellos Grp. LLC v. Fed. Ins. Co., 177 Wn. App. 620, 623, 312 P.3d 734 5 (2013) (“An excess insurance policy provides coverage only after underlying insurance coverage 6 is exhausted.”). Plaintiffs do not argue that McCarthy and Cornwell were insured under XOO 7 G14552467. In the absence of evidence that McCarthy and Cornwell were insured under XOO 8 G14552467, the Court cannot say that Federal Policy (91) 7909-28-88 provided them coverage. 9 E. Plaintiffs have not established that McCarthy and Cornwell are insured as Kiwanis affiliates under policies issued by USF&G and Granite State. 10 Next, Plaintiffs ask the Court to rule that McCarthy and Cornwell are insured under the 11 USF&G and Granite State policies as Kiwanis affiliates. Dkt. 89 at 15–16. Plaintiffs point to the 12 policies’ definition of “Named Insured,” which includes “Subsidiaries and Affiliates.” Id. at 15. 13 They argue that the ordinary dictionary definition of the word “affiliate” should guide the 14 Court’s interpretation of the policy language. Id. at 15–16. In response, USF&G urges the court 15 to interpret “affiliates” alongside “subsidiaries” to refer to “corporate Kiwanis entities” rather 16 than individuals. Dkt. 91 at 6–7. Granite State similarly argues that the common usage of the 17 noun “affiliate” is in reference to companies and organizations rather than individuals. Dkt. 95 at 18 21–25. 19 In the policy, the term “affiliates” appears alongside the word “subsidiaries” and should 20 be interpreted in that context. See Certification From U.S. Dist. Ct. ex rel. W. Dist. of Wash. v. 21 GEICO Ins. Co., 184 Wn.2d 925, 930, 366 P.3d 1237 (2016) (explaining that courts should “not 22 interpret a phrase in isolation” and should “give[] effect to each provision”). Therefore, the Court 23 considers the common meanings of these two words together. Merriam-Webster’s Dictionary 24 1 defines “affiliate” as a “person or organization” that is associated with or closely connected to an 2 entity. Affiliate, MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/affiliate 3 (last visited Dec. 30, 2025). In other words, the common meaning of affiliate includes both
4 natural persons and corporate entities. But “subsidiary” means “one that is subsidiary[,] 5 especially: a company wholly controlled by another.” Subsidiary, MERRIAM-WEBSTER.COM, 6 https://www.merriam-webster.com/dictionary/subsidiary (last visited Dec. 30, 2025). Read in 7 context, the word “affiliates” is narrowed by its neighbor “subsidiaries” to include only part of its 8 common meaning: organizations that are affiliated with Kiwanis. Because McCarthy and 9 Cornwell are natural persons, they are not insured as “affiliates” under the USF&G and Granite 10 State policies. 11 F. Cornwell is an insured under the primary Chubb policies in effect from November 1988 to November 1991, but only for Kiwanis activities or 12 activities that he performed on Kiwanis’s behalf. 13 Next, Plaintiffs seek a ruling that McCarthy and Cornwell are insured under the Chubb 14 policies in effect from November 1988 to November 1991—namely, INA policies OGL 15 G10790499 and SVP D16962351—under the endorsement contained in both policies that 16 provided coverage for members of any Named Insured, “but only with respect to their liability 17 for [the Named Insured’s] activities or activities they perform on [the Named Insured’s] behalf.” 18 Dkt. 89 at 16–17; see Dkt. 90-1 at 164, 195, 248. Chubb agrees that these policies provide 19 insurance for Kiwanis members for Kiwanis activities or activities that they perform on 20 Kiwanis’s behalf, but it maintains that Plaintiffs’ request is not yet ripe because the underlying 21 factual issues have not yet been adjudicated in the state court litigation. Dkt. 93 at 7, 18–19. 22 As the Court explained above, it is possible to determine whether McCarthy and
23 Cornwell were insured as Kiwanis members for Kiwanis activities without reaching issues of 24 fact that remain unresolved in the Underlying Actions. See supra Subsection IV.C. Because the 1 parties agree that the policies at issue provided limited coverage for Kiwanis members, the 2 availability of coverage to McCarthy and Cornwell depends on whether they were Kiwanis 3 members during the policy periods.
4 In at least one of the relevant policies, “members” was defined to include “the entire 5 members of all entities listed under the heading ‘Named Insured’ as computed in accordance 6 with the manuals in use by the company.” Dkt. 90-1 at 195. Chubb does not dispute that 7 McCarthy and Cornwell were members of local Kiwanis clubs at certain times. See Dkt. 93 at 3. 8 Plaintiffs have not demonstrated that McCarthy was a Kiwanis club member during the coverage 9 periods for these Chubb policies, and thus the Court cannot rule that he was insured under these 10 policies as a Kiwanis member. However, because the parties do not dispute that Cornwell was a 11 Kiwanis member from 1986 to 1991, Plaintiffs have demonstrated that he was insured under the 12 November 1988 to November 1991 primary Chubb policies only for any Kiwanis activities or
13 activities that he may have performed on Kiwanis’s behalf. 14 In making this determination, the Court does not decide whether Cornwell actually acted 15 as an agent of Kiwanis or performed any activities that would have fallen within the scope of 16 coverage, nor does the Court make any ruling regarding the relationship between Kiwanis and 17 KVH or LCYE. The Court’s narrow holding is that because Cornwell was a Kiwanis member 18 between 1988 and 1991, the primary Chubb policies in effect during that time would have 19 provided coverage to him if he performed any Named Insured’s activities or activities on a 20 Named Insured’s behalf. 21 G. Plaintiffs have not met their burden of establishing coverage under Washington’s continuous trigger rule. 22 Finally, Plaintiffs seek a ruling that Washington’s continuous trigger rule imposes 23 liability under a given policy if any Plaintiff’s injury “began or continued to occur” during that 24 1 policy period. Dkt. 89 at 17–20. Under the continuous trigger rule, “when an insured sustains 2 continuous damages all insurers providing coverage for any portion of the total time period of 3 the continuing damage are jointly and severally liable for the entire amount of damage.” Baker v.
4 Fireman’s Fund Ins. Co., 5 Wn. App. 2d 604, 619, 428 P.3d 155 (2018) (citing Am. Nat’l Fire 5 Ins. Co. v. B & L Trucking & Const. Co., 134 Wash. 2d 413, 424, 951 P.2d 250 (1998)). 6 Plaintiffs assert that the rule applies to continuous bodily injury, including emotional distress 7 with physical manifestations, that results from prior sexual abuse. Dkt. 89 at 18–20. Chubb 8 responds that emotional distress following sexual abuse is not the kind of “ongoing process” of 9 damage contemplated by the rule. Dkt. 93 at 19–22 (quoting Villella v. Pub. Emps. Mut. Ins. Co., 10 106 Wn.2d 806, 811, 725 P.2d 957 (1986)). USF&G argues that even if the continuous trigger 11 rule could apply to sexual abuse claims, a ruling here would be premature and hypothetical 12 because Plaintiffs have not submitted any evidence proving or even alleging that they
13 experienced physical manifestations of emotional distress. Dkt. 91 at 10–11. 14 Washington courts have applied the continuous trigger rule to “undiscovered, 15 progressively worsening condition[s]” such as dry rot, leaching chemicals, and water damage. 16 Villella, 106 Wn.2d at 811; see, e.g., Gruol Const. Co. v. Ins. Co. of N. Am., 11 Wn. App. 632, 17 635–37, 524 P.2d 427 (1974) (dry rot); Am. Nat’l Fire Ins. Co., 134 Wn.2d at 423–26 (pollutants 18 leaching from landfill); Certain Underwriters at Lloyd’s London v. Valiant Ins. Co., 155 Wn. 19 App. 469, 474, 229 P.3d 930 (2010) (“continuous and repeated exposure . . . to harmful moisture 20 that gradually intruded through the building envelope over a five year period”); Baker, 5 Wn. 21 App. 2d at 619 (pollutants leaching from landfill). 22 But courts have declined to apply the rule where there is “no ‘continuing process’ of
23 damage” or where the insured was on notice that the damage was occurring. See, e.g., Villela, 24 106 Wn.2d at 811–12 (declining to apply the continuous trigger rule where negligent installation 1 of a drainage system did not cause property damage until after the expiration of the policy 2 period); Swift v. Am. Home Assur. Co., 22 Wn. App. 777, 780, 591 P.2d 1216 (1979) (concluding 3 that an insurance agent’s negligent failure to include a church parsonage in a fire insurance
4 policy, leading to lack of coverage when the parsonage burned down, was not a continuing act); 5 City of Okanogan v. Cities Ins. Ass’n of Wash., 72 Wn. App. 697, 703, 865 P.2d 576 (1994) 6 (concluding that continuous trigger rule did not apply where insured was on notice of damage); 7 Overton v. Consol. Ins. Co., 145 Wn.2d 417, 426–27, 38 P.3d 322 (2002) (“Under some 8 circumstances PCB contamination may very well be the kind of invisible, slow process that leads 9 to an unexpected and unintended damage. But here the facts are different. In this situation the 10 insureds knew of the contamination, and the process was not invisible from their standpoint.”). 11 The Court agrees with USF&G that Plaintiffs have submitted insufficient evidence to 12 support the application of the continuous trigger rule at this stage of the litigation. As evidence of
13 their injuries, Plaintiffs rely primarily on exhibits that the Court has stricken from the record. 14 Dkt. 89 at 19; Dkt. 98 at 10; see supra Subsection IV.A (striking Exhibits 32, 34, 35, and 36). In 15 the reply, Plaintiffs cite allegations contained in two complaints in the Underlying Actions. 16 Dkt. 98 at 10; Dkt. 90-5 at 7; Dkt. 90-6 at 61. But these vague allegations of emotional distress, 17 which have not been adjudicated in the Underlying Actions, are not enough to support a ruling 18 that Defendants have a duty to indemnify Plaintiffs based on any continuing emotional injuries. 19 See Xia, 188 Wn.2d at 182. 20 Moreover, it is not clear that emotional injury resulting from a discrete act or acts of 21 sexual abuse constitutes continuous, worsening conditions in the same way that dry rot or landfill 22 pollution does. See Allstate Ins. Co. v. Cameron, No. C05-1312JLR, 2006 WL 314337, at *5–6
23 (W.D. Wash. Feb. 8, 2006) (declining to apply continuous trigger rule when a battery resulted in 24 the victim’s death years later because the battery “was not continuous; it was discrete”). 1 Plaintiffs cite four cases from this district for the proposition that the continuous trigger rule 2 “applies specifically to allegations of ongoing physical and emotional effects caused by prior 3 sexual abuse.” Dkt. 89 at 18–19. But each of these cases applied in the context of the duty to
4 defend or involved interpretations of specific policy language and evidence of injury in the 5 summary judgment record. See Liberty Mut. Ins. Co. v. Lange, No. C20-0309JLR, 2023 WL 6 4704712, at *6–8 (W.D. Wash. July 24, 2023) (denying an insurer’s motion for summary 7 judgment that it had no duty to defend against claims regarding physical manifestations of 8 emotional distress resulting from earlier abuse because those claims were “conceivably covered” 9 by the applicable insurance policies); Markel Ins. Co. v. Secret Harbor, No. C23-0158-KKE, 10 2024 WL 381178, at *2–3 (W.D. Wash. Feb. 1, 2024) (declining to rule on an insurer’s duty to 11 indemnify for sexual abuse that occurred before the relevant policy period); St. Paul Fire & 12 Marine Ins. Co. v. Highline Sch. Dist. No. 401, No. C17-1917 TSZ, 2018 WL 4205019, at *2–3
13 (W.D. Wash. Sept. 4, 2018) (denying an insurer’s motion for summary judgment that it had no 14 duty to defend because it was conceivable that bodily injury arising from sexual assault had 15 occurred during the coverage period); Markel Ins. Co. v. Secret Harbor, No. C23-0158-KKE, 16 2025 WL 745566, at *5 (W.D. Wash. Mar. 7, 2025) (considering specific policy language 17 defining bodily injury and specific evidence of injuries occurring during the policy periods to 18 conclude that an insurer was not entitled to summary judgment on the duty to indemnify an 19 insured related to claims of sexual abuse by the insured’s employees). Those cases, which are 20 narrow in scope, do not support a sweeping, hypothetical ruling that the continuous trigger rule 21 applies to severe emotional distress caused by sexual abuse. 22 At its heart, Plaintiffs’ position would functionally require that “any policy purchased at
23 any time after an act of sexual abuse provides full coverage for the life of the victim.” Bishop of 24 Charleston v. Century Indem. Co., 225 F. Supp. 3d 554, 566 (D.S.C. 2016). There is insufficient l evidence in the record for the Court to adopt this “extraordinary proposition” at this stage of 2 litigation. /d. The Court expresses no opinion on whether Plaintiffs may later be able to prove 3 coverage under individual policies based on specific evidence of bodily injury to their clients. 4 Vv. CONCLUSION 5 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the
6 motion for partial summary judgment (Dkt. 89). As a Kiwanis member, Guy Cornwell was
7 insured under the primary Chubb policies in effect from November 1988 to November 1991 for
g any Kiwanis activities or activities he did on Kiwanis’s behalf. The motion is otherwise denied.
9 10 Dated this 23rd day of January, 2026.
2 Tiffany“M. Cartwright United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PARTIAL SUMMARY JUDGMENT