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Kerrigan v. QBE Insurance Corp.

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

December 7, 2017

MARY ANN KERRIGAN, Plaintiff,
v.
QBE INSURANCE CORPORATION, a foreign insurance company, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         In 2013 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. at 13.

         On 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. Id.

         By 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.

         Ms. 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.

         Ms. 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.

         QBE 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.

         II. DISCUSSION

         A. Evidentiary Issues and Surreply

         The 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 in filing.

         Ms. 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).

         B. ...


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