United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant QBE Insurance
Corporation (“QBE”)'s Motion for Summary
Judgment. Dkt. #36. QBE argues that most of Plaintiff Mary
Ann Kerrigan's claims are untimely and that all claims
can be dismissed on summary judgment on the merits. Ms.
Kerrigan opposes this Motion. Dkt. #41. For the reasons set
forth below, the Court GRANTS QBE's Motion and DISMISSES
all claims in this case.
Ms. Kerrigan submitted a claim to QBE for property damage to
her house in Everett, Washington. QBE provided coverage for
plaintiff's house under policy number Q-5417334, for the
policy period of July 23, 2013 - July 23, 2014. Dkt. #38-1 at
3. The policy has a policy limit of $285, 000, with a $1, 000
deductible. Id. The policy covers “physical
loss to property”. Id. at 10. The policy does
not cover the contents of the dwelling. Id.; see
also Dkt #37-1 at 12 (Deposition of Ms. Kerrigan).
Importantly, the policy does not cover losses caused by
“wear and tear, marring, deterioration… [or]
domestic animals, ” and excludes coverage for
“neglect, ” as well as loss caused by
“faulty, inadequate or defective…
maintenance.” Dkt. #38-1 at 11-12. The policy contains
a one-year contractual limitations provision stating,
“[n]o action can be brought unless the policy
provisions have been complied with and the action is started
within one year after the date of loss.” Id.
August 23, 2013, Ms. Kerrigan notified QBE of damage caused
to her home by vandalism. Id. at 65. QBE asked Audit
Services, Inc. to appoint an independent adjuster to review
plaintiff's claimed damages, and to conduct an inspection
of the house. Dkt. #38 at 2. ASI then retained Claims
Adjustment Services (“CAS”), who in turn retained
an independent adjuster to perform the investigation.
letter dated September 4, 2013, QBE informed Ms. Kerrigan of
the results of the investigation, and announced its decision
that her policy did not provide coverage for portions of her
claim. Dkt. #38-1 at 76-79. The four-page letter noted that
the policy did not cover wear and tear, neglect, or improper
maintenance, and proceeded to detail by list what was and was
not being covered. Id. Notably, the letter stated
“under the terms of the Policy, there is a suit
limitation provision requiring any suit or action with regard
to a claim to be filed within 1 year after the above
captioned date of loss.” Id. at 79. The letter
proceeded to calculate the tolling of the suit limitation
period for claim investigation, and announced that “the
suit limitation will expire on August 28, 2014.”
Id. The letter announced that QBE was closing its
file on the matter. Id. Along with the letter, QBE
issued a check for $2, 409.63. Id. at 78.
Kerrigan hired her own investigator, a representative from a
company called Mr. Handyman, to conduct a separate
investigation. Mr. Handyman delivered an estimate of over
$21, 000 for repairs. Dkt. #41-7. However, Mr. Handyman and
QBE's investigations were different in scope. QBE's
investigation was looking for damage to the property from
vandalism, not damage caused by wear and tear, which is not
covered under the policy; Mr. Handyman's investigator was
not aware of the need to distinguish between these two
sources of damage. See Dkt. #37-1 at 13-14. Upon
being advised that plaintiff disputed its valuation of the
purported damages, QBE re-opened the claim. See Dkt.
#38-1 at 83. QBE hired another person to inspect the house,
and eventually sent a check for the additional sum of $2,
268.66 with a letter dated October 15, 2013. Dkt. #38-1 at
86-89. That letter indicated that the contractual limitation
period was tolled an additional day. Id. at 89.
Kerrigan filed this lawsuit in Snohomish County Superior
Court on September 12, 2016. Dkt. #1-1. It was removed here
on October 19, 2016. Dkt #1. The Complaint pleads causes of
action for statutory bad faith, breach of fiduciary duty
under certain regulations, violation of the Insurance Fair
Conduct Act (“IFCA”), breach of the state
Consumer Protection Act (“CPA”), common law
negligence, the tort of outrage, “exemplary
damages” under IFCA, and for “declaratory
judgment/injunctive relief.” Dkt. #1-1 at 2-4.
filed the instant Motion on October 10, 2017. Dkt. #36. Ms.
Kerrigan filed her Response brief on October 30, 2017, along
with a declaration and several exhibits. Dkt. #41.
Evidentiary Issues and Surreply
Court will first address QBE's motion to strike the
declaration of Ms. Kerrigan, relied on in the Response, as
improperly signed with “//M-A B Kerrigan//” in
the signature line instead of a pen signature. Dkt. #42 at 3
(citing Dkt. #41-1). This declaration provides a factual
background to this case from Ms. Kerrigan's personal
knowledge and authenticates several pictures of damage to her
home. The Court finds that Ms. Kerrigan's signature is
improper on this declaration, but the Court will consider Ms.
Kerrigan's statements and her photo exhibits as it is
evident to the Court that Ms. Kerrigan's error was
essentially a scrivener's error. The Court bases this
conclusion in part on Ms. Kerrigan's improper Surreply,
Dkt. #44. In this District, surreplies may only be filed to
strike material contained in a reply brief and must be
preceded by a notice of intent to file. LCR 7(g). Ms.
Kerrigan's counsel has not followed these procedures and
is advised to review Local Rule 7 and especially Local Rule
7(m) for the procedure to file a praecipe to correct an error
Kerrigan's declaration also attempts to authenticate
several estimates for repair to the damage to her home. QBE
moves to strike these exhibits. Dkt. #42 at 4. The Court
finds that Ms. Kerrigan cannot speak to the truth of the
matters contained in these documents, only that she received
them. The Court will not consider these documents for the
truth of the matter asserted. See Orr v. Bank of America,
NT & SA, 285 F.3d 764, 773-74 (9th Cir. 2002).