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Shavlik v. City of Snohomish

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

February 27, 2018

LORI SHAVLIK, et al., Plaintiffs,
CITY OF SNOHOMISH, et al., Defendants.



         This 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 explained herein.

         I. BACKGROUND

         An 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. (Id.)

         Following 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.)

         Officers 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.)

         Plaintiffs 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[1] (“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 at 6-7.)

         The 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).


         A. Summary Judgment Standard

         The 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).

         B. Defamation

         Plaintiffs 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).

         Plaintiffs 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.[2] (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 ...

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