United States District Court, E.D. Washington
ATLANTIC CASUALTY INSURANCE COMPANY, a North Carolina corporation, Plaintiff,
BRAD BELLINGER, an individual d/b/a LILAC CITY VAPOR; LILAC CITY VAPOR, a Washington limited liability company; MARLENE RUBERTT, an individual, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
STANLEY A. BASTIAN UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs Motion for Summary Judgment, ECF No.
26. A hearing was held on September 6, 2017 in Yakima,
Washington. Plaintiff was represented by Mary DeYoung.
Defendants Brad Bellinger and Lilac City Vapor, LLC were
represented by Benjamin McDonnell and Defendant Marlene
Rubertt by Liz McLafferty. This Order memorializes the
Court's oral ruling.
Atlantic Casualty Insurance Company (Atlantic) filed this
Declaratory Judgment Action on December 1, 2016 seeking a
declaration that, under an applicable insurance policy,
Defendants Brad Bellinger (Bellinger) and Lilac City Vapor,
LLC (LCV) are not entitled to insurance coverage for claims
made by Defendant Marlene Rubertt (Rubertt) in an underlying
state court products liability lawsuit and that it has no
duty to defend. On February 6, 2017, Defendants moved to
dismiss the complaint or, alternatively, stay this case
pending resolution of the underlying lawsuit. The Court
denied the motion and Plaintiff filed the present motion for
summary judgment on June 2, 2017.
material facts are not in dispute. On October 13, 2016,
Rubertt filed a lawsuit captioned Marlene Rubertt v.
Lilac City Vapor, LLC et al. in Spokane County Superior
Court alleging the following: Rubertt purchased an electronic
cigarette and related parts from LCV. On January 30, 2016,
Rubertt was home watching television and brought the
electronic cigarette to her mouth to inhale from the device
when the electronic cigarette suddenly exploded in her face.
As a result, Rubertt suffered severe, traumatic injuries to
her mouth and face, along with burns to her neck, chest,
face, and the roof of her mouth. Following the explosion,
Rubertt was driven to the emergency room and given an IV and
pain medication. She continued to receive treatment and care
for her injuries, including bone reconstruction in her jaw, a
sinus lift, and three surgical extractions of roots and
broken teeth. Pieces of the electronic cigarette plastic were
also removed from her upper lip. She will require additional
February 16, 2016, attorney Dayle Andersen sent a letter
notifying LCV and Bellinger that the Andersen Law Office had
been retained to represent Rubertt (then going by Ms. Garcia)
in her claim for personal injuries against LCV. After
receiving notification, Atlantic, through its agent American
Claims Service, Inc., sent LCV a letter dated March 29, 2016
in which it denied coverage for Rubertt's claim. The
claim was denied due to applicable insurance policy
Complaint stated causes of actions for products liability and
negligence. On October 21, 2016, LCV sent a Demand for
Defense Letter to Atlantic Casualty Insurance Company.
Atlantic tendered a defense subject to a reservation of
rights by letter dated November 3, 2016. Rubertt filed a
First Amended Complaint for Damages on December 7, 2016. She
again stated causes of action for products liability and
judgment is appropriate if the pleadings, discovery, and
affidavits demonstrate there is no genuine issue of material
fact and that the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (citing Fed.R.Civ.P. 56(c)). There is no
genuine issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict
in that party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). The moving party has the
burden of showing the absence of a genuine I issue of fact
for trial. Celotex, 477 U.S. at 325.
considering a motion for summary judgment, the Court neither
weighs evidence nor assesses credibility; instead,
“[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his
favor.” Anderson, 477 U.S. at 255. When
relevant facts are not in dispute, summary judgment as a
matter of law is appropriate, Klamath Water
Users Protective Ass'n v. Patterson, 204 F.3d
1206, 1210 (9th Cir. 1999), but “[i]f reasonable minds
can reach different conclusions, summary judgment is
improper.” Kalmas v. Wagner, 133 Wn. 2d 210,
of an insurance policy is a question of law that may be i
resolved on summary judgment. Reliable Credit Ass'n,
Inc. v. Progressive Direct Ins. Co., 171 Wn.App. 630,
638 (2012). Because insurance policies are contracts, the
rules of contract interpretation apply. Id. When
interpreting an insurance policy, the Court should consider
the contract as a whole and arrive at a "fair,
reasonable, and sensible construction as would be given to
the contract by the average person purchasing
insurance." Id. (quoting Quadrant Corp. v.
Am. States Ins. Co., 154 Wn. 2d, 165, 171 (2005))
(internal quotation marks omitted). If the language of the
insurance policy is unambiguous, the Court must enforce it as
written. Id. (citing Quadrant Corp., 154
Wn. 2d at 171). Exclusionary clauses in an insurance policy
must be strictly construed against the insurer; "[w]here
there is room for two constructions of an exclusionary
clause, one favorable to the insured and one favorable to the
insurer, courts must adopt the construction favorable to the
insured." Id. at 638-39 (citing Murray v.
W. Pac. Ins. Co., 2 Wn. App. 985, 992 (1970)).
Washington law, a "duty to defend 'arises at the
time an action is first brought, and is based on the
potential for liability.'" Woo v. Fireman's
Fund Ins. Co.,161 Wn. 2d 43, 52 (2007) (quoting
Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn. 2d
751, 760 (2002)). An insurer has a duty to defend "when
a complaint against the insured, construed liberally, alleges
facts which could, if proven, impose liability within the
policy's coverage." Id. at 52-53 (citing
Truck Ins. Exch., 147 Wn. 2d at 760) (internal
quotation marks omitted). "An insurer is not relieved of
its duty to defend unless the claim alleged in the complaint
is 'clearly not covered by the policy.'"
Id. at 53 (quoting Truck Ins. Exch., 147
Wn.2d at 760)). Thus, the duty to defend must be determined
from the complaint. However, "[t]here are two exceptions