United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Snohomish County
Fire Protection District No. 4's (“Fire
District”) motion for summary judgment (Dkt. No. 29),
Defendant City of Snohomish's (“City”) motion
for summary judgment (Dkt. No. 34), and Plaintiffs'
cross-motion for partial summary judgment solely against the
Fire District (Dkt. No. 33.) Having thoroughly considered the
parties' briefing and the relevant record, the Court
finds oral argument unnecessary and hereby GRANTS
Defendants' motions (Dkt. Nos. 29, 34) and DENIES
Plaintiffs' motion (Dkt. No. 33) for the reasons
employee of the Tan Line, a tanning business owned by
Plaintiffs Lori and Kenneth Shavlik, called the Fire District
to extinguish a fire at the business on February 4, 2010.
(Dkt. No. 1-2 at 3.) The fire started in a wall abutting a
utility room. (Id.) The utility room contained a
dryer used to dry towels for the business. (Id.)
Upon extinguishing the fire, Fire District personnel
discovered a sponge they believed smelled of mineral spirits
and a can of solvent near the potential source of the fire,
the dryer vent pipe, which they deemed suspicious.
(Id. at 3-4.) Fire District personnel photographed
the area and notified the City's police department, who
took additional photographs upon their arrival.
a lengthy investigation, the City's police detectives
concluded they had probable cause to arrest Plaintiff Lori
Shavlik for arson. (Id. at 4.) They theorized that
she intentionally caused the fire with a handheld flame,
intending to use the solvent, sponge, and accumulated dryer
lint as accelerants, which she stuffed into the wall behind
the dryer. (Id.) City detectives completed a
Snohomish County Superform to support their probable cause
determination. (Dkt. No. 35 at 86-95.) The Superform alleged
Mrs. Shavlik intentionally set the February 4, 2010 fire, and
attempted to set two other fires at the business in the
preceding days, in an effort to “destroy the business,
collect monies as a result of an ‘accidental' fire
and realize financial gain or relief from heavy debt.”
(Id. at 94.) The Superform referenced an
“insurance policy for the store at the time of the fire
[that] would have paid up to $1, 000, 000 for losses for a
total loss or injury” and estimated Plaintiffs'
debt to be $500, 000, which included approximately $380, 000
in outstanding lease obligations for Plaintiffs'
businesses. (Dkt. No. 35 at 92.)
arrested Mrs. Shavlik on January 5, 2011 and charged her with
first degree arson and attempted first degree arson. (Dkt.
Nos. 1-2 at 5, 34 at 3.) Mrs. Shavlik endured two criminal
trials. The first ended in a hung jury on April 13, 2015 and
the second ended in acquittal on March 3, 2016. (Dkt. No.
30-2 at 2-5.) The Fire District's Deputy Chief, Ron
Simmons, one of the original responders to the fire,
testified at both trials. (Dkt. No. 29 at 1, 9.) According to
his determination report, prepared shortly after responding
to the fire, he deemed the “fire to be
intentional” with the “most probable cause being
a handheld flame.” (Dkt. No. 31-1 at 3.) He reached
this conclusion through a process of elimination, after
finding no other clear triggers. (Id.) This
“negative corpus” method was recommended by the
fire investigation guidelines in effect at the time, the 2008
version of the National Fire Protection Association's
(“NFPA”) 921 Guidelines. (Dkt. No. 29 at 19.) The
2008 NFPA 921 guidelines were in effect until January 3,
2011, when the 2011 version was published. (Dkt. No. 41 at
7.) The 2011 NFPA 921 guidelines, in effect from January 2,
2011 through September 11, 2014, disfavored the use of this
“negative corpus” method, but did not rule out
its use. (Dkt. No. 29 at 21-22.) The 2014 NFPA 921
guidelines, effective on September 11, 2012 similarly
disfavored the use of the “negative corpus”
method. (Dkt. No. 50 at 12.)
vigorously dispute that Mrs. Shavlik intentionally set the
fire. They allege City police and Fire District personnel
predetermined she set the fire and then attempted to support
their case through failing to preserve, destroying, and
fabricating evidence, as well as through defamatory public
statements. (Dkt. No. 1-2 at 3-5.) Accordingly, Plaintiffs
bring suit against the City, the Fire District, and Snohomish
County (“County”) for (1) defamation;
(2) civil rights violations under 42 U.S.C. § 1983; (3)
intentional or reckless infliction of emotional distress,
i.e., outrage; and (4) malicious prosecution. (Dkt. No. 1-2
City and Fire District move for dismissal of Mr.
Shavlik's § 1983 claim due to a lack of standing and
for summary judgment on all of Plaintiffs' remaining
claims, asserting Plaintiffs fail to provide sufficient
evidence to support a required element for each claim and
that all claims but the malicious prosecution claim are
untimely. (Dkt. Nos. 29 at 4-33, 34 at 6-18.) Plaintiffs
cross-move for partial summary judgment, asking the Court to
rule that Fire District personnel should have used the 2014
version of NFPA 921 in investigating the fire, as it was in
effect before Mrs. Shavlik's criminal trials began. (Dkt.
No. 49 at 4); (see Dkt. No. 41 at 7).
Summary Judgment Standard
Court shall grant summary judgment if the moving party shows
there is no genuine dispute as to any material fact and they
are entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). In making this determination, the Court must view the
facts and justifiable inferences to be drawn therefrom in the
light most favorable to the nonmoving party. Anderson v.
Liberty Lobby, 477 U.S. 242, 255 (1986). Once a motion
for summary judgment is properly made and supported, the
opposing party must present specific facts showing that there
is a genuine issue for trial. Fed.R.Civ.P. 56(e);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). A dispute about a material fact is
genuine if there is sufficient evidence for a reasonable jury
to return a verdict for the non-moving party.
Anderson, 477 U.S. at 248-49. Summary judgment is
appropriate against a party who “fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986).
bring a defamation claim, alleging “Defendants claimed
Lori Shavlik was an arsonist” and “Defendants
reported to the media that Mrs. Shavlik would receive up to
$1, 000, 000 from the insurance policy from the subject
fire.” (Dkt. No. 1-2 at 6.) Plaintiffs further allege
that as a result of these statements, they lost their
business and were forced to file for bankruptcy protection.
(Dkt. No. 45 at 7.) In order to survive summary judgment,
Plaintiffs must put forward sufficient evidence to establish
a prima facie case for the following elements: a false
statement of fact, made without privilege, with the requisite
level of fault, resulting in damages. See Mohr v.
Grant, 108 P.3d 768, 773 (Wash. 2005); LaMon v.
Butler, 770 P.2d 1027, 1029 (Wash. 1989).
submit a number of statements made by Defendants'
representatives. First, Plaintiffs submit Deputy Chief
Simmons' February 2010 determination and incident
reports, which label the incident as an “arson.”
(Dkt. No. 31-1 at 2, 7.) Second, Plaintiffs point to a July
29, 2010 e-mail from City Detective Fontenot to
Plaintiffs' insurance company, seeking information on any
insurance claims on the fire made to date by Plaintiffs.
(Dkt. No. 20-9 at 1.) In the e-mail, Detective Fontenot
indicates that he is “investigating an arson which
occurred at . . . Tan Line Inc.” and “[d]uring
the course of this investigation it is suspected that the
owner, Lori D. Shavlik, may be responsible for the
intentionally set fire inside the business on
2/4/2010.” (Id.) Third, Plaintiffs reference
the probable cause Superform prepared by City detectives in
December 2010, indicating that “Lori D. Shavlik
maliciously and with intent” set the fire at issue at
her business. (Dkt. No. 35 at 93.) Fourth, Plaintiffs direct
the Court to a January 7, 2011 newspaper article in the
Snohomish Valley Reporter with attribution to Snohomish
Police Department Commander A.J. Bryant. (Dkt. No. 20-5 at
1-2.) The article theorizes that Mrs. Shavlik was responsible
for the “arson” at the tanning salon and that its
purpose was to collect on an insurance policy to compensate
for the failing business. (Id.) Fifth, Plaintiffs
submit a February 4, 2014 e-mail from Deputy Chief Simmons to
County prosecutors, in which ...