United States District Court, W.D. Washington, Seattle
STEAMSHIP MUTUAL UNDERWRITING ASSOCIATION LIMITED, a foreign limited liability corporation, Plaintiff,
OSPREY UNDERWRITING AGENCY LIMITED, AND ITS CERTAIN UNDERWRITERS, a foreign unincorporated entity and/or corporation, and AMERICAN STEAMSHIP OWNERS MUTUAL PROTECTION AND INDEMNITY ASSOCIATION, INC., a New York corporation, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS OR STAY
RICARDO S. MARTINEZ, District Judge.
This matter comes before the Court upon Motion to Dismiss for Forum Non Conveniens or to Stay by Defendant Osprey Underwriting Agency Limited ("Osprey"). Dkt. # 13. Also pending is Plaintiff's Motion to Strike filed in its opposition brief. Dkt. # 20, p. 20. No party has requested oral argument and the Court deems it unnecessary. Having considered the parties' moving papers and supporting exhibits, as well as the remainder of the record, the Court DENIES both Motions for the reasons stated herein.
This case is an insurance coverage dispute between three insurers: Plaintiff Steamship Mutual Underwriting Association Limited ("Steamship Mutual") and Defendants Osprey and American Steamship Owners' Mutual Protection and Indemnity Association, Inc. ("The American Club"). Steamship Mutual and Osprey are both English insurers, with their headquarters and principal places of business in England, while The American Club is a New York corporation. Dkt. # 15 ("Tobin Decl."), ¶ 3; Second Amended Complaint, Dkt. # 24 ("SAC"), ¶¶ 1.1-1.3; Dkt. # 25, ¶ 1.3. The three insurers issued successive marine liability insurance policies to Shelford Boats Limited ("Shelford"), a Washington limited liability company that owns and operates the Fishing Vessel Aleutian Lady. SAC at ¶¶ 3.2-4.1. Steamship Mutual provided coverage for the period February 20, 2006 to February 20, 2011, Osprey for the period February 20, 2011 to February 20, 2013, and The American Club for the period February 20, 2013 to February 20, 2014. Id. at ¶¶ 3.2.-3.4.
This coverage action arises out of injuries incurred by Mauricio Sanchez while employed by Shelford. In June 2010, Mr. Sanchez was allegedly injured while working aboard the F/V Aleutian Lady. SAC at ¶ 4.1. Mr. Sanchez underwent surgery to repair the injury and in 2011 made a claim to Shelford for medical expenses. Id. at ¶ 4.2. Shelford tendered Mr. Sanchez's claim to Steamship Mutual on September 2, 2011, which Steamship Mutual accepted without reservation. Id. Mr. Sanchez returned to work, whereupon he allegedly suffered a second injury in early 2013 while again working aboard the F/V Aleutian Lady. Id. at ¶ 4.3. According to Plaintiff, this latter injury occurred during the period of coverage provided by either Osprey or The American Club. Id.
Mr. Sanchez filed suit against Shelford in Snohomish County Superior Court on May 2, 2013 for injuries he sustained in both June 2010 and in early 2013. See Dkt. # 14 ("Allen Decl."), Ex. B; SAC at ¶ 4.4. The lawsuit was initially tendered only to Steamship Mutual, which paid for Shelford's defense. Id. at ¶ 4.5. However, on March 4, 2014, Shelford, via its Seattle-based claims adjuster Polaris, notified Osprey and The American Club that Mr. Sanchez was alleging that he suffered a new injury in 2013, which could trigger coverage obligations under their policies. Id. at ¶ 4.6; Allen Decl. at Ex. C. Osprey initially responded to the notice by asserting that it "would appreciate directing operations at this stage given that the claimant is alleging a new injury and that it falls within one of the Osprey Policy years." Dkt. # 21 ("Powell Decl."), Ex. 1. That same day, Osprey wrote back to Polaris that it would prefer that Steamship Mutual retain direction of the claim but that Osprey would "step up" if the evidence showed the Mr. Sanchez was injured during an Osprey policy year. Id. at Ex. 3. Finally, on March 6, 2014, Osprey wrote to its Washington claims broker, Wells Fargo Insurance Services, that it had determined to reserve its coverage position upon determining that Mr. Sanchez's claim was made solely in respect to the 2010 injury, and that the 2013 injury was merely an aggravation thereof. Id. at Ex. 4, p. 3.
On September 25, 2014, counsel for Shelford wrote to the three insurers threatening to bring a lawsuit under Washington's Insurance Fair Conduct Act ("IFCA") if they refused to defend and indemnify. Counsel specifically asserted that " the allegations in the Underlying Action trigger all three Assurer's duties-jointly and severally-to defend and reimburse. " Powell Decl. at Ex. 5, p. 25 (emphasis in original). Mr. Sanchez settled his claims against Shelford on November 5, 2014. SAC at ¶ 4.11. Ultimately, Steamship Mutual agreed to reimburse Shelford for all expenses incurred, while Osprey and the American Club declined to do so. Id. at ¶ 4.9.
Steamship Mutual filed this lawsuit against Osprey and The American Club on January 9, 2015, and Osprey was served with summons and complaint on February 20, 2015. See Dkt. # 1; Tobin Decl. at ¶ 10. Steamship Mutual seeks a declaratory judgment establishing that both Osprey's and The American Club's defense and indemnity obligations were triggered by the underlying litigation. SAC at ¶ 5.2. The operative complaint asserts additional causes of action for contribution, equitable contribution, and unjust enrichment against both Defendants. See SAC. On February 9, 2015, Osprey served upon Steamship Mutual its own declaratory judgment action filed in the High Court of Justice in London, Queen's Bench Division, seeking the English Court's declaration that Steamship Mutual is entitled to neither contribution nor restitution for expenses arising out of its provision for the defense against Mr. Sanchez's lawsuit. Tobin Decl. at Ex.'s C & D.
Through the instant Motion, Osprey seeks dismissal of all claims against it on the basis of forum non conveniens or, alternatively, a stay of these proceedings pending resolution of the action before the English High Court of Justice. Dkt. # 13. Osprey asserts that the gravamen of the claims against it rests in England, where both companies are headquartered, where documents and witnesses relevant to the two insurers' policies are allegedly located, and whose law it asserts applies to interpretation of both policies. Steamship Mutual opposes both dismissal and a stay on the grounds that the relief Osprey requests would lead to duplicative litigation with possibly inconsistent results, that its claims turn primarily on events centered in Washington, and that its action was the first filed. Dkt. # 20. The American Club has not responded to the instant Motion, although it has since filed its Answer to Plaintiff's Second Amended Complaint. See Dkt. # 25.
I. Motion to Strike
As an initial matter, the Court addresses Plaintiff's Motion to Strike portions of the declaration of Andrew Tobin filed in support of Defendant's Motion to Dismiss. See Dkt. # 20, p. 20. Plaintiff moves the Court to strike the several averments in Mr. Tobin's declaration that are prefaced by the language "to the best of my knowledge." Id.
Pursuant to Federal Rule of Civil Procedure 56(c)(4), a declaration used to support a motion "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the...declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56 (c)(4). Mr. Tobin is a solicitor of the Senior Courts of England and Whales and counsel of record in London for Defendant Osprey. Tobin Decl. at ¶ 2. He attests that his declaration is made on the basis of personal knowledge of the matters contained therein. Id. As it accordingly appears that Mr. Tobin possesses the requisite ...