Preferred Contractors Insurance Company Risk Retention Group LLC v. Baker and Son Construction Inc

• Court: District Court, W.D. Washington
• Decided: April 3, 2023
• Docket: 3:21-cv-05016
• Status: Unknown

Opinion

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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 PREFERRED CONTACTORS INSURANCE CASE NO. 3:21-cv-05016-JHC 8 COMPANY RISK RETENTION GROUP LLC, ORDER RE: MOTION FOR SUMMARY 9 Plaintiff, JUDGMENT

10 v. 11 BAKER AND SON CONSTUCTION INC ET AL, 12 Defendants. 13

14 I 15 INTRODUCTION 16 This matter comes before the Court on Plaintiff Preferred Contractors Insurance 17 Company’s motion for summary judgment. Dkt. # 73. Plaintiff requests a declaratory judgment 18 that Plaintiff has no duty to defend or indemnify Defendant Baker and Son Construction, Inc. for 19 claims asserted against Baker in a separate lawsuit. Dkt. # 1 at 10. Plaintiff argues that (1) it has 20 no duty to defend or indemnify Baker under the insurance policies at issue, and (2) even if 21 Plaintiff owes such a duty, coverage is limited to the Washington minimum of $100,000 under 22 RCW 18.27.050(1). Dkt. # 73 at 4–8. The Court has considered the parties’ briefing, the 23 balance of the case file, and the applicable law. Being fully advised, the Court DENIES the 24 motion. 1 II BACKGROUND 2 The background of this matter is well presented in (1) the Order Granting in Part 3 Defendants[’] Motion for Certification and Denying Plaintiff’s Motion for Summary Judgment, 4 Dkt. # 57; and (2) Preferred Contractors Insurance Company, Risk Retention Group, LLC v. 5 Baker and Son Construction Inc., 200 Wash. 2d 128, 514 P.3d 1230 (2022). PCIC now seeks 6 summary judgment on coverage, arguing preemption under the Liability Risk Retention Act 7 (“LRRA”). Dkt. # 73 at 4–8. In the alternative, PCIC argues that if preemption does not apply, 8 the Court should limit PCIC’s coverage obligation to the $100,000 minimum required by RCW 9 18.27.50. Id. 10 In analyzing the summary judgment motion, the Court determined that its resolution may 11 depend on whether the insurance policy at issue violated Montana public policy. Dkt. # 81. But 12 the Court did not find Montana law to be clear. Id. Accordingly, the Court ordered the parties to 13 show cause as to whether it should certify the question to the Montana Supreme Court. Id. For 14 varying reasons, the parties do not support certification of the question. Dkt. ## 82, 83, 86 & 87. 15 In light of the parties’ positions, and for reasons set forth below, the Court declines to certify the 16 question. 17 III 18 DISCUSSION 19 Summary judgment is proper only if the evidence, when viewed in the light most 20 favorable to the non-moving party, demonstrates “that there is no genuine dispute as to any 21 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 22 23 24 1 The LRRA generally preempts state law governing RRGs. 15 U.S.C. § 3902(a)(1). But 2 “the jurisdiction in which [an RRG] is chartered may regulate the formation and operation [of the 3 RRG].” Id. Plaintiff is chartered in Montana. See Dkt. # 24-6.

4 Under Montana law, “[e]very stipulation or condition in a contract by which any party to 5 the contract is restricted from enforcing the party’s rights under the contract by the usual 6 proceedings in the ordinary tribunals or that limits the time within which the party may enforce 7 the party’s rights is void.” MCA 28-2-708. The Court continues to find Montana law unclear as 8 to whether the policy at issue offends the state’s public policy. But as argued by Defendants, 9 Ninth Circuit case law binds this Court. And in J. G. Link & Co v. Continental Cas. Co., the 10 Ninth Circuit essentially held that the combination of “occurrence” and “claims made” 11 provisions in an insurance policy violated the public policy underlying R.C.M. § 13-806, an 12 earlier version of MCA 28-2-708.1 470 F.2d 1133, 1137 (9th Cir. 1972). Thus, under J.G. Link, 13 this Court must conclude that the policy at issue, which combines such provisions, violates 14 Montana public policy, and so preemption does not apply.2 Given this conclusion, the Court 15 does not reach the other arguments raised by Defendants opposing the application of preemption. 16 17

18 1 The former and current versions of the statute provide basically the same legal standard. Compare MCA 28-2-708 (“Every stipulation or condition in a contract by which any party to the contract 19 is restricted from enforcing the party’s rights under the contract by the usual proceedings in the ordinary tribunals or that limits the time within which the party may enforce the party’s rights is void.”), with 20 Palmer Steel Structures v. Westech, Inc., 178 Mont. 347, 350, 584 P.2d 152 (1978) (quoting section 13- 806, R.C.M. 1947) (“Every stipulation or condition in a contract by which any party thereto is restricted 21 from enforcing his rights under the contract, by the usual proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void.”). 22 2 Granted, for several reasons, the foregoing application of J.G. Link does not sit perfectly well with this Court. First, that case is over 50 years old. Second, while not dicta as argued by Plaintiff, the analysis therein on the question before the Court is not extensive. And third, it is not altogether clear to 23 the Court how the policies at issue and in J.G. Link violate the Montana statute. But again, the case binds this Court. 24 l Plaintiff next contends that, if it owes a duty to defend Baker, liability is limited to 2 $100,000, the minimum coverage required under RCW 18.27.050(1). Defendants say that the 3 minimum coverage amount does not apply because the parties contracted for $1,000,000 in 4 coverage. Dkts. ## 76 at 18-23, 78 at S—6. Plaintiff concedes that “no Washington case 5 answers . . . that [Plaintiffs] obligation should be limited to $100,000.” Dkt. # 73 at 7. 6 Perhaps if this Court declined to enforce the exclusion at issue on the ground that it 7 || violates RCW 18.27.050, Plaintiff's argument might be more persuasive. But either way, no 8 authority supports the argument. The parties contracted for $1,000,000 in coverage and but for g unenforceable coverage exclusion are entitled to that full amount. See LK Operating, LLC v. 10 __ || Collection Grp., LLC, 181 Wash. 2d 48, 94, 331 P.3d 1147 (2014) (quoting Fallahzadeh v. 11 Ghorbanian, 119 Wash. App. 596, 605, 82 P.3d 684 (2004)) (“Where a contract is entered in 12 || violation of public policy, ‘the rule is to leave the parties in the positions where the court finds 13 them, even if they acted in good faith.””). 14 CONCLUSION 15 6 Based on the above, the Court DENIES the motion for summary judgment. Dkt. # 73.

7 Dated this 3rd day of April, 2023. C eke 4 Char 18 John H. Chun 19 United States District Judge

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