United States District Court, W.D. Washington, Seattle
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.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
about October 12, 2016, Defendants Paul Drinkwine and William
Reed filed a Complaint that alleged the following against the
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
Dkt. #1-1 at ¶ ¶ 2.11-12.
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
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.
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.
December 12, 2017, Homesite filed the instant Motion for
Summary Judgment and declaratory Judgment. See Dkt.
the 15-16 Policy and the 16-17 Policy insuring agreements
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
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).
E - PERSONAL LIABILITY
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
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 ...