United States District Court, W.D. Washington, Seattle
THOMAS S. ZILLY, District Judge.
THIS MATTER comes before the Court on Plaintiff's Motion for Summary Judgment, docket no. 21. Having reviewed all papers filed in support of, and in opposition to, Plaintiff's motion, the Court GRANTS Plaintiff's Motion for Summary Judgment.
The Court may grant summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To survive a motion for summary judgment, the adverse party must present affirmative evidence, which "is to be believed" and from which all "justifiable interferences" are to be favorably drawn. Id. at 255, 257.
Interpretation of an insurance contract is a question of law appropriate for resolution on summary judgment. Quadrant Corp. v. Am. States Ins. Co., 154 Wn.2d 165, 171, 110 P.3d 733 (2005). The Court should consider the policy as a whole and give it a "fair, reasonable, and sensible construction, as would be given to the contract by the average person purchasing insurance." Id. at 171. If the policy language is clear and unambiguous, the court must enforce it as written; it may not modify the language or create ambiguity where none exists. Id.
An insurance company has a duty to defend when there is a potential for coverage. Truck Ins. Co. v. VanPort Homes, Inc., 147 Wn.2d 751, 760 (2002). The duty arises when a complaint, construed liberally, against the insured alleges facts that could, if proven, impose liability upon the insured within the policy's coverage. Id. at 760. If the claims are clearly not covered by the policy, an insurer has no duty to defend. Nat'l Surety Co. v. Immunex Corp., 176 Wn.2d 872 (2013).
Johnston and M s West (collectively "M s West"), the plaintiffs in the underlying liability action, brought suit against Defendants Earth M s NW, LLC, M s & Junk Company and Richard and Deborah Pezzner (collectively "Earth M s") alleging six separate claims: breach of contract, violation of the Uniform Trade Secrets Act, unjust enrichment, violation of Washington's Consumer Protection Act, tortious interference with a business or contractual expectancy, and conversion. Pl.'s Complaint, docket no. 26-1 at 6-9. Plaintiff in this Declaratory Judgment Act matter, Atlantic Casualty Insurance Company ("Atlantic"), argues that Earth M s's insurance policy does not provide protection for any of the alleged claims. Pl.'s Mot. for Summary Judgment, docket no. 21 at 10, 12, 15.
Breach of Contract
The first cause of action in the underlying complaint (the "Complaint") is breach of contract. Pl.'s Complaint, docket no. 26-1 at 6. The policy provides that "property damage" coverage excludes liability for damages resulting from a breach of contract. Def.'s Ex. B, docket no. 26-2.
Violation of Uniform Trade Secrets Act & Unjust Enrichment
Next, the Complaint alleges trade secret infringement. Pl.'s Complaint, docket no. 26-1 at 6. However, Coverage B specifically excludes "personal and advertising injury arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights." Def.'s Ex. B, docket no. 26-2 (emphasis added).
The Complaint further alleges that Earth M s was unjustly enriched by utilizing M s West's trade secrets, trade name and good will. Pl.'s Complaint, docket no. 26-1 at 8. Again, Atlantic's argument is consistent with the language of the insurance policy: the policy does not include protection for unjust enrichment liability. Def.'s Ex. B, docket no. 26-2.
Violation of Consumer Protection Act
The Complaint also alleges that Earth M s violated the Consumer Protection Act. However, the insurance policy does not provide coverage for liability under the Consumer ...