HONORABLE RICHARD A. JONES 1
6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 TAMMY J. DETRAY and GREGORY S. 9 DEYTRAY, 10 Case No. 2:17-cv-00983-RAJ Plaintiffs,
11 ORDER GRANTING v. DEFENDANT NORTHBRIDGE 12 COMMERICAL INSURANCE AIG INSURANCE COMPANY OF CORPORATION’S MOTION 13 CANADA, et al., FOR SUMMARY JUDGMENT
14 Defendants. 15 I. INTRODUCTION 16 This matter is before the Court on Defendant Northbridge Commercial Insurance 17 Corporation’s Motion for Summary Judgment (“Motion”). Dkt. # 81. For the reasons 18 below, the Court GRANTS the Motion. 19 II. BACKGROUND 20 The facts of this case have been extensively discussed in the Court’s prior order 21 denying the parties’ motions for summary judgment and will not be repeated here. Dkt. # 22 77. The Court incorporates the facts and analysis as detailed in that order by reference. As 23 noted in that order, the Court concluded (i) there were no genuine issues of material fact as 24 to Mrs. DeTray’s potential coverage under the Northbridge policy and (ii) the underlying 25 complaints did not establish that she could “conceivably” be covered by the Northbridge 26 Policy. Id. at 17. 27 Northbridge now brings a motion for summary judgment as to all of Plaintiffs’ remaining claims. Dkt. # 81. Plaintiffs oppose the motion. Dkt. # 83. 1 2 III. LEGAL STANDARD 3 Summary judgment is appropriate if there is no genuine dispute as to any material 4 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 5 The moving party bears the initial burden of demonstrating the absence of a genuine issue 6 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving 7 party will have the burden of proof at trial, it must affirmatively demonstrate that no 8 reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty 9 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party 10 will bear the burden of proof at trial, the moving party can prevail merely by pointing out 11 to the district court that there is an absence of evidence to support the non-moving party’s 12 case. Celotex Corp., 477 U.S. at 325. If the moving party meets the initial burden, the 13 opposing party must set forth specific facts showing that there is a genuine issue of fact for 14 trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 15 (1986). The court must view the evidence in the light most favorable to the nonmoving 16 party and draw all reasonable inferences in that party’s favor. Reeves v. Sanderson 17 Plumbing Prods., 530 U.S. 133, 150-51 (2000). 18 However, the court need not, and will not, “scour the record in search of a genuine 19 issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also White 20 v. McDonnel-Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court need not 21 “speculate on which portion of the record the nonmoving party relies, nor is it obliged to 22 wade through and search the entire record for some specific facts that might support the 23 nonmoving party’s claim”). The opposing party must present significant and probative 24 evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 25 952 F.2d 1551, 1558 (9th Cir. 1991). Uncorroborated allegations and “self-serving 26 testimony” will not create a genuine issue of material fact. Villiarimo v. Aloha Island Air, 27 Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); T.W. Elec. Serv. v. Pac Elec. Contractors Ass’n, 1 809 F. 2d 626, 630 (9th Cir. 1987). 2 IV. DISCUSSION 3 Given the Court’s prior ruling, Northbridge requests summary judgment in its favor 4 as to all of Plaintiffs’ remaining claims, specifically that: (1) Plaintiffs are not entitled to a 5 defense or indemnity under the subject policy; (2) Northbridge did not breach the contract 6 by denying Plaintiffs a defense or indemnity under the subject policy; (3) Plaintiffs cannot 7 succeed as a matter of law on their bad faith claim because they are not insureds under the 8 subject policy; and (4) Plaintiffs cannot succeed as a matter of law on their Consumer 9 Protection Act (“CPA”) claim because their theories of liability are not actionable by 10 noninsureds. Dkt. # 81 at 2. 11 Having reviewed the parties’ submissions, the Court incorporates by reference the 12 full analysis in the its prior order concerning Mrs. DeTray’s potential coverage under the 13 Northbridge policy. There are no genuine issues of material fact as to Mrs. DeTray’s 14 potential coverage under the Northbridge policy and the complaints do not establish that 15 she could “conceivably” be covered by the Northbridge Policy. See Dkt. # 77 at 17. The 16 Court now turns to whether Northbridge is entitled to summary judgment on Plaintiffs’ 17 remaining claims. 18 As an initial matter, Plaintiffs request a continuance of the motion to conduct 19 discovery under Federal Rule of Civil Procedure 56(d). Dkt. # 83 at 6-7. This rule applies 20 where the non-moving party must obtain “facts essential to justify its opposition.” Fed. R. 21 Civ. P. 56(d). Northbridge’s motion is based on the Court’s prior ruling that Plaintiffs are 22 not insured under the Northbridge policy. Because the Court has already made this finding, 23 Plaintiffs’ request for a continuance for further discovery to dispute this point is denied. 24 Plaintiffs claim that Northbridge breached its duty to defend and seek a declaratory 25 judgment to that effect. Dkt. # 1-2. The duty to defend under Washington law arises at 26 the time an action is first brought and is based on the potential for liability. Woo v. 27 Fireman’s Fund Ins. Co., 164 P.3d 454, 459 (2007). “An insurer has a duty to defend when 1 a complaint against the insured, construed liberally, alleges facts which could, if proven, 2 impose liability upon the insured within the policy’s coverage.” Id. at 52-53 (internal 3 citations omitted). 4 “[T]he duty to defend is triggered if the insurance policy conceivably covers the 5 allegations in the complaint.” Id. at 53; see also Goodstein v. Cont’l Cas. Co., 509 F.3d 6 1042, 1055 (9th Cir. 2007). The Court previously found no genuine issue of material fact 7 as to Mrs. DeTray’s potential coverage and that the complaints did not establish that Mrs. 8 DeTray could “conceivably” be covered by the Northbridge Policy. See Dkt. # 77 at 17 9 (finding that all of the complaints in the Underlying Lawsuits allege Mrs. DeTray was 10 driving a vehicle owned by and licensed to her and Mr. DeTray, and that even as an alleged 11 employee, she would not be entitled to coverage under the Northbridge policy). 12 Accordingly, Northbridge is entitled to summary judgment on Plaintiffs’ claim for 13 declaratory relief regarding Northbridge’s duty to defend.
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HONORABLE RICHARD A. JONES 1
6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 TAMMY J. DETRAY and GREGORY S. 9 DEYTRAY, 10 Case No. 2:17-cv-00983-RAJ Plaintiffs,
11 ORDER GRANTING v. DEFENDANT NORTHBRIDGE 12 COMMERICAL INSURANCE AIG INSURANCE COMPANY OF CORPORATION’S MOTION 13 CANADA, et al., FOR SUMMARY JUDGMENT
14 Defendants. 15 I. INTRODUCTION 16 This matter is before the Court on Defendant Northbridge Commercial Insurance 17 Corporation’s Motion for Summary Judgment (“Motion”). Dkt. # 81. For the reasons 18 below, the Court GRANTS the Motion. 19 II. BACKGROUND 20 The facts of this case have been extensively discussed in the Court’s prior order 21 denying the parties’ motions for summary judgment and will not be repeated here. Dkt. # 22 77. The Court incorporates the facts and analysis as detailed in that order by reference. As 23 noted in that order, the Court concluded (i) there were no genuine issues of material fact as 24 to Mrs. DeTray’s potential coverage under the Northbridge policy and (ii) the underlying 25 complaints did not establish that she could “conceivably” be covered by the Northbridge 26 Policy. Id. at 17. 27 Northbridge now brings a motion for summary judgment as to all of Plaintiffs’ remaining claims. Dkt. # 81. Plaintiffs oppose the motion. Dkt. # 83. 1 2 III. LEGAL STANDARD 3 Summary judgment is appropriate if there is no genuine dispute as to any material 4 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 5 The moving party bears the initial burden of demonstrating the absence of a genuine issue 6 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving 7 party will have the burden of proof at trial, it must affirmatively demonstrate that no 8 reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty 9 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party 10 will bear the burden of proof at trial, the moving party can prevail merely by pointing out 11 to the district court that there is an absence of evidence to support the non-moving party’s 12 case. Celotex Corp., 477 U.S. at 325. If the moving party meets the initial burden, the 13 opposing party must set forth specific facts showing that there is a genuine issue of fact for 14 trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 15 (1986). The court must view the evidence in the light most favorable to the nonmoving 16 party and draw all reasonable inferences in that party’s favor. Reeves v. Sanderson 17 Plumbing Prods., 530 U.S. 133, 150-51 (2000). 18 However, the court need not, and will not, “scour the record in search of a genuine 19 issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also White 20 v. McDonnel-Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court need not 21 “speculate on which portion of the record the nonmoving party relies, nor is it obliged to 22 wade through and search the entire record for some specific facts that might support the 23 nonmoving party’s claim”). The opposing party must present significant and probative 24 evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 25 952 F.2d 1551, 1558 (9th Cir. 1991). Uncorroborated allegations and “self-serving 26 testimony” will not create a genuine issue of material fact. Villiarimo v. Aloha Island Air, 27 Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); T.W. Elec. Serv. v. Pac Elec. Contractors Ass’n, 1 809 F. 2d 626, 630 (9th Cir. 1987). 2 IV. DISCUSSION 3 Given the Court’s prior ruling, Northbridge requests summary judgment in its favor 4 as to all of Plaintiffs’ remaining claims, specifically that: (1) Plaintiffs are not entitled to a 5 defense or indemnity under the subject policy; (2) Northbridge did not breach the contract 6 by denying Plaintiffs a defense or indemnity under the subject policy; (3) Plaintiffs cannot 7 succeed as a matter of law on their bad faith claim because they are not insureds under the 8 subject policy; and (4) Plaintiffs cannot succeed as a matter of law on their Consumer 9 Protection Act (“CPA”) claim because their theories of liability are not actionable by 10 noninsureds. Dkt. # 81 at 2. 11 Having reviewed the parties’ submissions, the Court incorporates by reference the 12 full analysis in the its prior order concerning Mrs. DeTray’s potential coverage under the 13 Northbridge policy. There are no genuine issues of material fact as to Mrs. DeTray’s 14 potential coverage under the Northbridge policy and the complaints do not establish that 15 she could “conceivably” be covered by the Northbridge Policy. See Dkt. # 77 at 17. The 16 Court now turns to whether Northbridge is entitled to summary judgment on Plaintiffs’ 17 remaining claims. 18 As an initial matter, Plaintiffs request a continuance of the motion to conduct 19 discovery under Federal Rule of Civil Procedure 56(d). Dkt. # 83 at 6-7. This rule applies 20 where the non-moving party must obtain “facts essential to justify its opposition.” Fed. R. 21 Civ. P. 56(d). Northbridge’s motion is based on the Court’s prior ruling that Plaintiffs are 22 not insured under the Northbridge policy. Because the Court has already made this finding, 23 Plaintiffs’ request for a continuance for further discovery to dispute this point is denied. 24 Plaintiffs claim that Northbridge breached its duty to defend and seek a declaratory 25 judgment to that effect. Dkt. # 1-2. The duty to defend under Washington law arises at 26 the time an action is first brought and is based on the potential for liability. Woo v. 27 Fireman’s Fund Ins. Co., 164 P.3d 454, 459 (2007). “An insurer has a duty to defend when 1 a complaint against the insured, construed liberally, alleges facts which could, if proven, 2 impose liability upon the insured within the policy’s coverage.” Id. at 52-53 (internal 3 citations omitted). 4 “[T]he duty to defend is triggered if the insurance policy conceivably covers the 5 allegations in the complaint.” Id. at 53; see also Goodstein v. Cont’l Cas. Co., 509 F.3d 6 1042, 1055 (9th Cir. 2007). The Court previously found no genuine issue of material fact 7 as to Mrs. DeTray’s potential coverage and that the complaints did not establish that Mrs. 8 DeTray could “conceivably” be covered by the Northbridge Policy. See Dkt. # 77 at 17 9 (finding that all of the complaints in the Underlying Lawsuits allege Mrs. DeTray was 10 driving a vehicle owned by and licensed to her and Mr. DeTray, and that even as an alleged 11 employee, she would not be entitled to coverage under the Northbridge policy). 12 Accordingly, Northbridge is entitled to summary judgment on Plaintiffs’ claim for 13 declaratory relief regarding Northbridge’s duty to defend. Similarly, the absence of 14 coverage and an accompanying duty to defend disposes of Plaintiffs’ claim for breach of 15 contract. 16 On the other hand, claims for insurance bad faith and violation of the CPA may 17 potentially be viable, as neither is based solely on an allegation that Northbridge denied 18 coverage owed under the policy. Washington courts have said that, under the duty of good 19 faith and fair dealing, an insurer must deal fairly with an insured, give equal consideration 20 in all matters to an insured’s interests, thoroughly investigate an insured’s accident or 21 injuries, provide defense counsel that will represent only the insured, disclose all material 22 information to the insured, and refrain from placing its own monetary interest above an 23 insured’s financial risk. Tank v. State Farm & Cas. Co., 715 P.2d 1133 (Wash. 1986). 24 However, those courts have further held that insurers do not owe a duty of good faith to 25 third-party claimants. Id. Because Plaintiffs are not insureds under the Northbridge policy, 26 their bad faith claim fails as a matter of law. 27 As for Plaintiffs’ CPA claims, which are based on per se violations of the 1 Washington Administrative Code (“WAC”) and bad faith by Northbridge, those fail for 2 similar reasons. Only an insured can bring a per se action or allege a CPA claim based on 3 the statutory duty of good faith. Tank, 715 P.2d at 1140; Transamerica Title Ins. Co. v. 4 Johnson, 418, 693 P.2d 697 (1985). Moreover, Plaintiffs submit no evidence to suggest a 5 triable issue as to whether Northbridge engaged in an “act or practice which has the 6 capacity to deceive a substantial portion of the public” that proximately caused their 7 injuries. Hangman Ridge Training Stables v. Safeco Title Ins. Co., 719 P.2d 531, 535 8 (1986) (outlining the factors for a CPA claim). Accordingly, Northbridge is entitled to 9 summary judgment on Plaintiffs’ CPA claims. 10 For the reasons set forth herein and the Court’s prior order (Dkt. # 77), the Court 11 GRANTS Northbridge’s Motion. 12 V. CONCLUSION 13 For the reasons stated above, the Court GRANTS Northbridge’s Motion. Dkt. # 14 81.
15 DATED this 14th day of August, 2019. 16 A 17 18 The Honorable Richard A. Jones 19 United States District Judge 20 21 22 23 24 25 26 27