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Snohomish County v. Allied World National Assurance Co.

United States District Court, W.D. Washington, Seattle

August 21, 2017

SNOHOMISH COUNTY, Plaintiff,
v.
ALLIED WORLD NATIONAL ASSURANCE COMPANY, et al., Defendants.

          ORDER GRANTING LEXINGTON INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT

          Barbara Jacobs Rothstein U.S. District Court Judge

         I. Introduction

         This matter is before the Court on a motion for summary judgment by Defendant Lexington Insurance Company (“Lexington”) against Plaintiff Snohomish County (“the County”). The dispute centers around whether Lexington owed a duty to defend the County against a series of lawsuits in the wake of a catastrophic landslide in 2014.

         Having reviewed the parties' briefing, the relevant case law, and the entire record, the Court will grant Lexington's motion for summary judgment against the County and dismiss the lawsuit against Lexington without prejudice. The Court's reasoning follows:

         II. Background

         On March 22, 2014, in Snohomish County, the town of Oso was the scene of a catastrophic mudslide that wreaked havoc on lives and property. The number of deaths, personal injuries, and destruction to homes and other property resulted in four lawsuits (hereinafter the "underlying lawsuits"). The underlying lawsuits are Pszonka v. Snohomish County (King Co. Sup. Ct. No. 14-2-18401-8-SEA; “Pszonka”); Ward v. Snohomish County, King Co. Sup. Ct. No. 14-2-2955-4-SEA; “Ward”); Regelbrugge v. State of Washington, King Co. Sup. Ct. No. 15-2-01672-5-SEA (“Regelbrugge”); Lester v. Snohomish County, King Co. Sup. Ct. No. 15-2-02908-6-SEA (“Lester”).

         At issue in this summary judgment motion are five successive annual excess insurance policies issued by Lexington.[1] Lexington is a “second-layer” excess insurer whose duty to cover and defend begins when the County's self-insured retention and the first layer of excess coverage has been exhausted.

         The second-layer Lexington policies share the following features:

• The duty to defend and/or pay a covered loss arises only after the County has fully exhausted its self-insured retention and the respective policy limits of its underlying insurance policies;
• The policies follow the form of the underlying first-layer excess insurance policies issued by Defendant The Insurance Company of the State of Pennsylvania (“ICSOP”) during the same policy period (i.e., if an underlying ICSOP Policy does not cover a claim or suit, the Lexington Policy from that same policy period will also not cover the claim or suit).[2]

On September 14, 2016, the underlying lawsuits against the County were dismissed. (Dkt. No. 204, Declaration of Meyers, Exs. 1, 2.) The dismissal of the underlying litigation is currently on appeal. (Dkt. No. 200, Declaration of Genster at ¶ 3.)

         III. Discussion

         A. Legal standards

         Summary judgment is proper “if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). 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). In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the ...


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