United States District Court, W.D. Washington, Seattle
MIKE HOWISEY, as attorney in fact for WALLACE E. HOWISEY, an incapacitated person, Plaintiff,
TRANSAMERICA LIFE INSURANCE COMPANY, a foreign corporation organized under the laws of the State of Iowa, Defendant.
ORDER DENYING MOTION FOR RECONSIDERATION
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Mike Howisey's
Motion for Reconsideration. Dkt. #75. The Court has
determined that a Response is unnecessary and has not
requested one from Defendant. See LCR 7(h)(3). The
Court incorporates by reference the facts of this case as
stated in the underlying Summary Judgment Order
(“Order”), Dkt. #73.
for reconsideration are disfavored.” LCR 7(h)(1).
“The court will ordinarily deny such motions in the
absence of a showing of manifest error in the prior ruling or
a showing of new facts or legal authority which could not
have been brought to its attention earlier with reasonable
diligence.” Id. Under Washington law,
interpretation of an insurance contract is a question of law.
Overton v. Consol. Ins. Co., 145 Wn.2d 417, 424, 38
P.3d 322 (2002). “The terms of a policy should be given
a fair, reasonable, and sensible construction as would be
given to the contract by the average person purchasing
insurance.” Id. Furthermore, a policy must be
considered “as a whole, ” including riders or
endorsements. Kitsap Cty. v. Allstate Ins. Co., 964
P.2d 1173, 1177 (Wash. 1998). Defined terms “should be
interpreted in accordance with [the] policy
speaking, Mr. Howisey has diligently and respectfully
presented why he disagrees with the Court's rulings, but
has failed to demonstrate manifest error in those rulings.
Mr. Howisey cites to new facts obtained in discovery after
all of the summary judgment briefing was submitted, however
these facts are immaterial to the Court's ruling and
would not have altered it.
Court will address each of Mr. Howisey's arguments in
turn. First, Mr. Howisey argues the Court overlooked or
misapprehended ambiguities in the Policy. Dkt. #75 at 2-3.
The Court found the Policy's language unambiguous in
“defining the requirements of receiving Nursing Home
Benefits versus Assisted Living Facility Benefits, ”
and that “to receive Nursing Home Benefits, the insured
must be staying at a Nursing Home licensed as such by the
state.” Dkt. #73 at 9-10. Mr. Howisey asserts the Court
overlooked how the definition of “nursing home”
in the policy is more restrictive than a state statutory
definition and more restrictive than the term as used in the
sale of the policy. Dkt. #75 at 2. It was unnecessary to
compare the Policy's definition to statute or sales
documents, because under the above standard for interpreting
insurance contracts, the policy could be found unambiguous on
its own merits by the average person purchasing insurance.
Mr. Howisey also argues that the Court overlooked the
“substantial compliance” provision. Id.
at 3. However, as argued in the underlying briefing and
considered by the Court, it is undisputed that this provision
was never at issue because no Transamerica representative
found Aegis substantially complied with the Policy
definition, as required under the Policy. See Dkt.
#40 at 18 n.7 (citing Dkt. #41 at 12); Dkt. #63 at 13.
Arguments about elements of the nursing home definition other
than the requirement that the nursing home be licensed as
such by the state are irrelevant as the licensing requirement
the instant Motion argues the Order is inconsistent with
previously cited Washington State statutes and regulations.
Dkt. #75 at 3-8. The Court stands by its analysis of each of
those statutes and regulations, and finds that Mr. Howisey
has failed to demonstrate manifest error. The Court
reiterates that the Policy complies with these regulations
because it covers all types of care within a covered
facility, and that no regulation cited by Mr. Howisey
prevents insurers from requiring facilities to be
appropriately licensed, or from offering nursing home
benefits and separate assisted living benefits.
Mr. Howisey argues that the Court has overlooked issues of
material fact with respect to substantial compliance. As
stated above, substantial compliance is not at issue in this
case as it is undisputed that no Transamerica representative
found Aegis substantially complied with the Policy definition
and because the Court found Aegis' failure to meet the
licensing requirement dispositive.
Mr. Howisey questions the Court's rulings on the
remaining claims of bad faith, CPA and IFCA violations,
negligent supervision, and intentional misrepresentation.
Id. at 9- 11. This just reiterates and rehashes
prior arguments addressed and dismissed in the Court's
Order. The Court finds that its Order reached rulings as a
matter of law and did not resolve issues of fact.
Mr. Howisey addresses his Rule 56(d) request to defer summary
judgment and the fact that the Court did not rule on his
pending Motion to Compel. Id. at 11. Because the
Court was able to rule that Mr. Howisey “failed to
identify specific facts that further discovery would reveal
and why those facts would preclude summary judgment, ”
this request was properly denied and the Motion to Compel was
moot. Even now, Mr. Howisey does not identify helpful
specific facts that further discovery might reveal.
Mr. Howisey points to new facts obtained in discovery on
November 7 and 8, 2017, after all briefing was submitted.
Dkt. #75 at 11-12; see also Dkt #76. Mr. Howisey
argues that these facts show Transamerica acted in bad faith.
The Court notes that this information was obtained weeks
before the Court's Order was issued, and Mr. Howisey has
failed to demonstrate that this could not have been brought
to the Court's attention earlier with reasonable
diligence. In any event, these facts would not have altered
the Court's ruling because they do not change the fact
that Aegis was not licensed as a nursing home, and they fail
to materially alter the analysis relied on by the Court in
ruling on Mr. Howisey's bad faith claims and other
reviewed the relevant briefing and the remainder of the
record, the Court hereby finds and ORDERS that
Defendants' Motion for Reconsideration (Dkt. #75) is
 Mr. Howisey argues the Court did not
address in its Order “WAC 284-54-050(6), ” which
“requires prior skilled or intermediate care as a
condition of coverage for institutional or community based
care.” Mr. Howisey has erroneously cited this
regulation, which can be found at WAC 284-54-150(6). The
Court did consider this regulation as well as WAC