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Atlantic Casualty Co. v. Ohana Enterprises

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

November 20, 2017

ATLANTIC CASUALTY INSURANCE COMPANY, a North Carolina corporation, Plaintiff,
v.
OHANA ENTERPRISES dba HAWAIIAN VAPOR; TWIN OHANA ENTERPRISES, LLC, a Washington limited liability company, LOREN ETENGOFF, as guardian of T.W., a minor, Defendants.

          ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN, United States District Judge

         THIS MATTER comes before the Court on the Plaintiff's Motion for Summary Judgment. Dkt. 28. The Court has reviewed the pleadings filed regarding the motion and the remaining file, and is fully advised.

         On January 25, 2017, Plaintiff Atlantic Casualty Insurance Company (“Atlantic”) filed this case seeking declaratory relief regarding whether it owes a defense or indemnity under a general liability policy it alleges it issued to Ohana Enterprises, dba Hawaiian Vapor (“Ohana”), with respect to damages claims Defendant Loren Etengoff made against Twin Ohana Enterprises, LLC dba Hawaiian Vapor (“Twin Ohana”) in a lawsuit filed in Clark County, Washington Superior Court (“underlying lawsuit”). Dkt. 1. In the underlying lawsuit, Etengoff, as guardian of T.W., alleges that T.W. was injured when a battery or batteries purchased from Twin Ohana “exploded, ignited, or combusted while in his pocket, resulting in third-degree burns to his lower body.” Dkt. 22. Atlantic now moves for a judgment summarily granting it relief. For the reasons provided below, the motion should be granted.

         I. BACKGROUND FACTS AND PROCEDURAL HISTORY

         A. BACKGROUND FACTS

         Atlantic issued an insurance policy to “Ohana Enterprises dba Hawaiian Vapor, ” for the policy term of April 28, 2016 to April 28, 2017. Dkt. 29, at 24. (Atlantic asserts that there is a question as to whether Twin Ohana, the entity named in the underlying suit, is insured under the policy, but is not raising this issue for the purposes of this motion alone). The policy covers “sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury' . . . to which this insurance applies.” Id., at 26. It excludes coverage of expenses for “bodily injury” . . . “[i]ncluded within the ‘products completed operations hazard.'” Id., at 27-28. The policy defines “products completed operations hazard” as:

a. Includes all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except:
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned. However, “your work” will be deemed completed at the earliest of the following times:
(a) When all of the work called for in your contract has been completed.
(b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site.
(c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project.
Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed. b. Does not include “bodily injury” or “property damage” arising out of:
(1) The transportation of property, unless the injury or damage arises out of a condition in ...

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