Crum & Forster Specialty Insurance Company v. Sierra Pacific Industries Inc

• Court: District Court, W.D. Washington
• Decided: September 5, 2023
• Docket: 3:23-cv-05163
• Status: Unknown

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 CRUM & FORSTER SPECIALTY CASE NO. 3:23-cv-5163 MJP INSURANCE COMPANY, 11 ORDER DENYING MOTION TO Plaintiff, DISMISS 12 v. 13 SIERRA PACIFIC INDUSTRIES, 14 INC., 15 16 This matter is before the Court on Defendant Sierra Pacific Industries, Inc.’s Motion to 17 Dismiss. (Dkt. No. 9.) Having reviewed the Motion, the Opposition (Dkt. No. 13), the Reply 18 (Dkt. No. 16), and all other materials and documents, the Court DENIES the Motion to Dismiss. 19 Defendant also requests the Court take judicial notice of two documents (Dkt. No. 8), which the 20 Court GRANTS in part and DENIES in part. 21 BACKGROUND 22 Sierra Pacific Industries (“SPI”) operates a lumber mill in Shelton, Washington. (MTD at 23 3.) SPI contracted with ASC Security & Investigations, LLC (“ASC”) to provide security 24 1 services under a Masters Services Agreement (“MSA”). (Id.) The MSA states that ASC shall 2 provide “(1) main gate guard 24/7, (1) south gate guard as agreed upon and (1) rover as agreed 3 upon.” (MTD, Exhibit C at 18 (Dkt. No. 9-3).) The MSA also has an indemnification clause that 4 states ASC and SPI shall indemnify and hold harmless the other from all claims arising out of or

5 relating to all acts, failures to act or other conduct of the indemnitor. (Id. at 7.) 6 In addition to the security services, ASC agreed to add SPI as an additional insured under 7 a commercial general liability policy issued by Crum & Forster (“C&F”). (MTD at 3.) The 8 policy contains two provisions that appear to be at issue here. First, the provision that names SPI 9 as an additional insured states that the policy is amended to include SPI as an additional insured, 10 “but only with respect to liability for ‘bodily injury,’ ‘property damage’ or ‘personal and 11 advertising injury’ caused, in whole or in part, by [ASC’s] acts or omissions or the acts or 12 omissions of those acting on [ASC’s] behalf: (1) in the performance of [ASC’s] ongoing 13 operations . . .” (MTD, Exhibit B at 39 (Dkt. No. 9-2).) The second provision is an Employers 14 Liability Coverage Endorsement for Washington, which states C&F “will pay those sums that

15 the insured becomes legally obligated by Washington Law to pay as damages because of ‘bodily 16 injury by accident’ or ‘bodily injury by disease’ to your ‘employee’ to which this insurance 17 applies . . .” (Id. at 33.) 18 On February 14, 2022, a pickup truck struck the SPI guard house and killed the ASC 19 security guard inside. (MTD at 3.) The estate of the deceased filed a complaint in Pierce County 20 Superior Court against the driver of the vehicle and SPI. (Opposition at 3.) The complaint alleges 21 that SPI knew the guard house was vulnerable to errant vehicles due to its location and that it had 22 been subject to “near misses” in the past, but that SPI failed to take any action to protect the 23 guards. (Id.) SPI tendered its defense to C&F, who denied the tender on the grounds that SPI’s

24 1 liability was not caused, in whole or in part, by any act or omission of ASC in the performance 2 of ASC’s ongoing security operations. (MTD at 4.) C&F also allegedly denied the existence of 3 the Washington State Employer’s Liability Coverage and instead relied on a general worker 4 injury exclusion endorsement. (Id.)

5 Following the initial complaint filed in Pierce County, SPI made a third-party complaint 6 against ASC. (See Request for Judicial Notice Exhibit 1 (Dkt. No. 8-1).) SPI is suing ASC for 7 two breach of contract claims, one is a claim for breach of contract on the agreement to procure 8 insurance, the second breach of contract claim is breach of delegated duty for workplace safety 9 of ASC employees. (Id. at 4-5.) SPI is also suing on indemnity claims and for declaratory relief. 10 (Id. at 5-6.) In return, ASC asserted several affirmative defenses, including defenses that SPI has 11 failed to state a claim upon which relief can be granted, and that any injuries or damages to SPI 12 were not caused by any acts or omissions by ASC. (Id. at 7.) It appears C&F is defending ASC 13 against SPI in this matter, and shortly before ASC filed its answer, C&F sought declaratory relief 14 in this Court.

15 SPI seeks to dismiss the Complaint, arguing that on the face of the insurance policy there 16 is conceivable coverage. In the alternative, SPI also requests the Court stay the case while the 17 underlying state action is being litigated to avoid any duplicative or conflicting rulings. 18 ANALYSIS 19 A. Legal Standard 20 1. Fed. R. Civ. P. 12(b)(6) Standard 21 When deciding a motion to dismiss under the Federal Rule of Civil Procedure 12(b)(6) 22 standard, a court must construe the complaint in the light most favorable to the non-moving party 23 and accept all well-pleaded allegations of material fact as true. Livid Holdings Ltd. v. Salomon 24 1 Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). Dismissal is appropriate only where a 2 complaint fails to allege “enough facts to state a claim to relief that is plausible on its face.” Bell 3 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 4 On a motion to dismiss, a court “may generally consider only allegations contained in the

5 pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” 6 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (internal 7 citation and quotation omitted). A court is permitted to take judicial notice of matters of public 8 record outside of the pleadings. Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 9 1988). 10 Under Federal Rule of Civil Procedure 12(d), if on a motion under 12(b)(6), matters 11 outside the pleadings are presented to and not excluded by the court, the motion must be treated 12 as one for summary judgment under Rule 56. See Fed. R Civ. P. 12(d). “All parties must be 13 given a reasonable opportunity to present all the material that is pertinent to the motion.” 14 a. Materials before the Court

15 C&F attached three exhibits to its Complaint for Declaratory Relief: (1) the Pierce 16 County Complaint; (2) the insurance policy; and (3) the MSA. (See Complaint Exhibits 1-3 (Dkt. 17 Nos. 1-1, 1-2, 1-3).) These form the basis for the action and are proper for the Court to consider. 18 SPI requests the Court take judicial notice of two documents. (Dkt. No. 8.) A court may 19 take judicial notice of facts that are “not subject to reasonable dispute,” Fed. R. Evid. 201(b), as 20 well as documents that are referred to in the complaint, that are central to the plaintiff’s claims, 21 and whose authenticity is not disputed. See, e.g., Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 22 1994). A court may also take judicial notice of undisputed matters of public records. Lee v. City 23 of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). The first document SPI requests judicial

24 notice of is ASC’s Answers to SPI’s Amended Complaint and Third-Party Claim filed in the 1 Pierce County Action. (Request at 1-2.) SPI argues this document is relevant to their request to 2 stay the case if it is not dismissed. Because this is a public record, the Court may take judicial 3 notice of it. The Court GRANTS the request as to this document. 4 The second is ASC’s responses to interrogatories, response number 1. (Id. at 2.) SPI

5 states the basis for this judicial notice is to demonstrate that C&F is in privity with ASC in the 6 underlying action. The point of the request goes to reasons why SPI believes a stay is in order 7 while the underlying action is pending. But demonstrating privity is not a basis for judicial 8 notice. The Court DENIES the request as to this document. 9 Lastly, SPI filed an objection to C&F’s counsel’s declaration and exhibits in support of 10 the opposition. (Dkt. No. 18.) The Court notes that this should be a motion to strike so that C&F 11 has the opportunity to respond. Regardless, if the Court were to consider the deposition 12 testimony it would need to convert the motion to a motion for summary judgment and provide 13 the parties with an opportunity to file additional materials. The Court finds that unnecessary at 14 this stage. As such, the Court will not consider the deposition testimony in its ruling on the

15 Motion to Dismiss. 16 B. Fed. R. Civ. P. 12(b)(6) and Declaratory Relief 17 Pursuant to the Declaratory Judgment Act, the Court “may declare the rights and other 18 legal relations of any interested party seeking such declaration, whether or not further relief is or 19 could be sought. 28 U.S.C. § 2201(a). The Washington State Supreme Court previously 20 recognized that insurers “may sue for a declaratory judgment before they undertake a defense, to 21 determine their liability.” Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 391 (1986). 22 “Where the critical issue for purposes of coverage will not be decided in the [underlying] tort 23 action . . . the Courts of Appeals have uniformly held that is an abuse of discretion for a District

24 1 Court to dismiss declaratory judgment actions brought by insurance carriers.” Globe Indem. Co. 2 v. First Am. State Bank, 720 F. Supp. 853, 858 (W.D. Wash. 1989), aff’d, 904 F.2d 710 (9th Cir. 3 1990). 4 In the insurance context, Washington courts recognize that the duty to indemnify is

5 narrower than the duty to defend. Am. Best Food, Inc. v. Alea London, Ltd., 168 Wn.2d 398, 6 404 (2010). Although the duty to indemnify arises only if the policy “actually covers” the 7 insured’s liability, the duty to defend is triggered if the policy “conceivably covers” the 8 allegations in the underlying complaint. Id. (emphasis in original). In evaluating whether an 9 insurer owes a duty to defend, the Court must ordinarily look within the “eight corners” of the 10 insurance contract and the underlying complaint, which it must “construe liberally,” to determine 11 whether the alleged facts could, if proven, impose liability on the insured that would be covered 12 under the policy. See Expedia, Inc. v. Steadfast Ins. Co., 180 Wn.2d 751, 760 (2002). 13 Here, SPI argues that C&F’s claim fails to state a cause of action for four reasons:

14 “[1] The Estate of Kyle Ford’s complaint alleges that, at the time of his death, decedent Kyl Ford was an ASC employee performing security as part of ASC’s ongoing 15 operations. This included assessing the security risk of traffic approaching SPI’s main gate and admitting or denying entry accordingly. 16 [2] The Estate of Ford’s underlying complaint alleges SPI has vicarious liability for the 17 acts of its agents. This includes apparent authority for ASC. 18 [3] The policy contains Washington State Employer’s liability coverage promising to defend and indemnify SPI for bodily injury to an ASC employee as part of ASC’s 19 ongoing operations for SPI. 20 [4] The policy’s ‘separability clause’ treats SPI as the only insured. Because Mr. Ford was not an SPI employee, the general employee exclusion doesn’t apply.” 21 (Motion at 4.) 22 All of these arguments require the Court to reach the merits of the case rather than test 23 the sufficiency of the complaint. Typically, declaratory actions are decided on motions for 24 1 summary judgment, rather than motions to dismiss. This is because declaratory actions are 2 seeking clarification on a party’s rights and obligations. And while all a court needs to make that 3 determination is typically the “eight corners” of the insurance contract and underlying complaint, 4 which can be before a court on a 12(b)(6) motion, the standard the court must apply is different.

5 Under a Rule 12(b)(6) framework, the Court is to construe all well-pleaded allegations as true 6 and draw all reasonable inferences in the non-moving party’s favor. Applying the test, the Court 7 would have to construe the scope of the additional insured clause in favor of C&F, as well as 8 C&F’s arguments regarding Ford’s acts or omissions and the definition of “ongoing operations.” 9 The Court concludes C&F has pleaded a plausible claim for relief. If it were to analyze the issues 10 SPI claims are grounds for dismissal, it would be deciding the case on the merits. Instead, the 11 Court merely concludes that C&F’s Complaint for Declaratory Relief survives a Rule 12(b)(6) 12 motion to dismiss. For this reason, the Court DENIES the Motion to Dismiss. 13 C. Request to Stay the Action 14 In the alternative, SPI asks the Court to stay the case pending resolution of the third-party

15 suit in state court. (Motion at 13-14.) C&F opposes a stay, but informs the Court that before this 16 motion was filed, the parties were mediating these coverage issues. (Opposition at 3.) C&F asks 17 that if the Court does not intend to deny SPI’s motion that it request the Court take the motion 18 off the calendar pending the outcome of the settlement negotiations. (Id.) Because of the time 19 that has passed since the filing of the motion and this Order, the Court requests a status update 20 from the parties as to the settlement negotiations and the underlying state court case. The parties 21 are ORDERED to provide a status update within ten days of this Order. Absent an understanding 22 of these matters, the Court cannot grant the request to stay. Therefore, the Court DENIES the 23 request to stay without prejudice to bring once the Court is apprised of the underlying matters.

24 1 The clerk is ordered to provide copies of this order to all counsel. 2 Dated September 5, 2023. A 3 4 Marsha J. Pechman United States Senior District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23