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Homesite Insurance Company of Midwest v. Ascolese

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

March 5, 2018

HOMESITE INSURANCE COMPANY OF THE MIDWEST, a North Dakota corporation Plaintiff,
PATRICK ASCOLESE, a Washington resident, EMILY ASCOLESE, a Washington resident, PAUL DRINKWINE, a Washington resident, and WILLIAM REED, a Washington resident, Defendants.




         This matter comes before the Court on Plaintiff's Motion for Summary Judgment. Dkt. #17. Plaintiff Homesite Insurance Company of the Midwest (“Homesite”) moves the Court for a declaratory judgment stating that it owes no duty to defend or indemnify Defendants Patrick and Emily Ascolese in an underlying King County Superior Court case. In that case, Paul Drinkwine and William Reed accuse the Ascoleses of breaching covenants and/or easements governing certain real property. The Ascoleses tendered Homesite, their homeowner's insurance provider, to arrange insurance protection and/or defense to their underlying case. Homesite agreed to defend the Ascoleses while under a full reservation of rights to disclaim coverage for both defense and indemnity based on policy exclusions. Homesite argues that because Mr. Drinkwine and Mr. Reed do not allege bodily harm or property damage in the underlying case and because the Ascoleses acted intentionally, it owes no duty to defend or indemnify. For reasons discussed herein, the Court now DENIES Plaintiff's Motion for Summary Judgment.


         The background facts do not appear to be in dispute. On or about March 19, 2015, Defendants Patrick Ascolese and Emily Ascolese (collectively, “Ascoleses”) purchased a single-family home on Lot B of a seven-unit residential short plat (“Subject Property”) in Seattle, Washington. Dkt. #1-1 at ¶ ¶ 2.2 and 2.4.

         Homesite underwrote a Home Owners 3 Insurance Policy No. 33020771 to the Ascoleses from March 2, 2015, to March 2, 2016, (“15-16 Policy”) and from March 2, 2016, to March 2, 2017 (“16-17 Policy”). Dkt. #1-2 at 3 and 39. Under the applicable definitions, Patrick and Emily Ascolese were the “named insured” shown in the Declaration for Policy Number 33020771. Dkt. #1-2 at 3 and 39. The Policies provided $300, 000 of Personal Liability Coverage. Id. at 3 and 20. The Ascoleses also purchased supplemental insurance coverage in the form of a Personal Injury-Washington Endorsement (HO 46 18 0900) for which they paid an additional $20.00 annual premium. Dkt. #1-2 at 4 and 40. This Personal Injury Endorsement covered both Policies, including the date when the underlying case was filed. Id.

         Paul Drinkwine and William Reed are the Ascoleses' neighbors and owners of separate townhomes within the Subject Property. The Subject Property includes an easement for “Ingress, Egress, Parking and Trash/Recycle.” Dkt. #19-1, Ex. B at 10-20. An alleged infringement of this easement is the subject of the underlying King County case. See Dkt. #1-1.

         On or about October 12, 2016, Defendants Paul Drinkwine and William Reed filed a Complaint that alleged the following against the Ascoleses:

Ascolese [sic] have repeatedly and on a continuing basis parked . . . vehicles on the Easement portion of Lot A and outside of their permitted parking area pursuant to the Declaration . . . that have impeded plaintiffs' access to and ability to maneuver their vehicles in an out of the parking pad assigned to Lot E . . . and have used the Easement for other purposes not constituting ingress and egress to their respective homes, including, without limitation, placing outdoor furniture, grills, and other items of personal property, fixtures, and/or structures therein.

Dkt. #1-1 at ¶ ¶ 2.11-12.

         In the underlying case, Mr. Drinkwine and Mr. Reed pleaded claims against the Ascoleses for (1) Quiet Title, (2) Request for Declaratory and Injunctive Relief, (3) Nuisance, (4) Trespass, and (5) Breach of Declaration. Dkt. #1-1 at ¶ ¶ 3.1-16. They seek declaratory and equitable relief, unspecified damages, and attorney's fees. Id. at 8.

         On February 23, 2017, Homesite received the Ascoleses' notice and request for insurance and/or defense in the underlying case. Dkt. #1-3 at 2. On March 7, 2017, Homesite notified the Ascoleses via mail that it had received their request, and that Homesite was “prepared to provide them with a defense to this lawsuit while reserving its rights to disclaim coverage for both defense and indemnity in the future based on the exclusions noted herein.” Id. at 5. On July 31, 2017, Homesite mailed the Ascoleses a second letter “as supplement to the prior Reservation of Rights letter dated March 7, 2017.” See Dkt. #1-4. As of December 12, 2017, Homesite had, and was still, providing the Ascoleses with legal defense in the underlying King County case. Dkt. #17 at 4.

         On September 1, 2017, in this Court, Plaintiff Homesite filed a Complaint seeking declaratory judgment that “it owes no duty to defend or indemnify Defendants Patrick and Emily Ascolese, Paul Drinkwine, and William Reed from any of the claims in the Underlying Lawsuit.” See Dkt. #1. Further, on October 23, 2017, both Homesite and the Ascoleses stipulated that Paul Drinkwine and William Reed “have only a nominal interest in the outcome of this insurance coverage dispute between Homesite and the Ascoleses.” Dkt. #11 at 3. Defendants Drinkwine and Reed are expected to participate minimally, if at all, in this matter. Id.

         On December 12, 2017, Homesite filed the instant Motion for Summary Judgment and declaratory Judgment. See Dkt. #17.

         Both the 15-16 Policy and the 16-17 Policy insuring agreements provide:

In this policy, "you" and "your" refer to the "named insured" shown in the Declarations. In addition, certain words and phrases are defined as follows:
2. Bodily injury means bodily harm, sickness or disease, except a disease which is transmitted by an insured through sexual contact.
Bodily injury includes required care, loss of services and death resulting from covered bodily harm, sickness or disease. . . .
7. Occurrence means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:
a. Bodily injury; or
b. Property damage.
8. Property damage means physical injury to, destruction of, or loss of use of tangible property.
HO 00 03 08 96

Dkt. #1-2 at 7 (bold in original).


If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which the insured is legally liable. Damages include prejudgment interest awarded against the insured; and
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for ...

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