United States District Court, W.D. Washington, Tacoma
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
B. Leighton, United States District Judge.
MATTER is before the Court on Plaintiff ACIC's Motion for
Summary Judgment. [Dkt. # 7]. This declaratory judgment
action arises out of the sale of Defendant
Ladenburg's Gig Harbor home. The home was insured
under an ACIC homeowners' policy.
listed the home for sale with a real estate agent, Wetter.
Ladenburg apparently negotiated with one potential buyer,
Hoffnagle, before selling the home to a different buyer,
Brandt. In December 2017, Hoffnagle sued Ladenburg in Pierce
County Superior Court, asserting only a breach of contract
made a claim under his homeowners' policy, asking ACIC to
defend him from Hoffnagle's claim, and potentially, to
indemnify him for any damages. ACIC commenced this
Declaratory Judgment action in January, seeking a declaration
that its policy provides Ladenburg no coverage for
Hoffnagle's breach of contract claim.
the same time, Hoffnagle amended his Pierce County complaint.
He added Wetter and Brandt as defendants, and asserted breach
of contract (duties of good faith and fair dealing), specific
performance, civil conspiracy, and fraud claims against
Ladenburg. He sued Wetter (as Ladenburg's agent) for
tortious interference, civil conspiracy, and fraud. The fraud
and civil conspiracy claims assert that Ladenburg and Wetter
concealed damage to the home.
moves for summary judgment, arguing that its policy does not
provide coverage for Hoffnagle's breach of contract
claim. Ladenburg argues that the Motion does not address the
second amended complaint and its various claims. ACIC argues
in reply that each of the new claims sounds in intentional
tort and none are covered under the policy as a matter of
judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In determining whether an issue of fact
exists, the Court must view all evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Anderson Liberty
Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v.
Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine
issue of material fact exists where there is sufficient
evidence for a reasonable factfinder to find for the
nonmoving party. Anderson, 477 U.S. at 248. The
inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Id. at 251-52. The moving party bears
the initial burden of showing that there is no evidence which
supports an element essential to the nonmovant's claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Once the movant has met this burden, the nonmoving party then
must show that there is a genuine issue for trial.
Anderson, 477 U.S. at 250. If the nonmoving party
fails to establish the existence of a genuine issue of
material fact, “the moving party is entitled to
judgment as a matter of law.” Celotex, 477
U.S. at 323-24. There is no requirement that the moving party
negate elements of the non-movant's case. Lujan v.
National Wildlife Federation, 497 U.S. 871 (1990). Once
the moving party has met its burden, the non-movant must then
produce concrete evidence, without merely relying on
allegations in the pleadings, that there remain genuine
factual issues. Anderson, 477 U.S. 242, 248 (1986).
interpretation of an insurance policy is a question of law.
Overton v. Consolidated Ins., 145 Wn.2d 417, 423
(2002). Insurance policies are contracts which are construed
as a whole with the terms interpreted in the way that an
average insurance buyer would understand. Id. If the
language is clear and unambiguous, the court must enforce it
as written and may not create ambiguity where none exists.
Am. Nat'l Fire Ins. v. B&L Trucking & Constr.
Co., 134 Wn.2d 413, 419 (1998).
whether insurance coverage exists is a two-step process.
McDonald v. State Farm Fire & Cas., 119 Wn.2d
724, 727 (1992). The insured must first demonstrate that
“the loss falls within the scope of the policy's
insured losses.” Id. To avoid coverage, the
insurer must then show that the loss is excluded by specific
policy language. Id. at 728. In Washington, the duty
to defend is broader than the duty to indemnify. Hayden
v. Mutual of Enumclaw Ins., 141 Wn.2d 55 (2000). A duty
to defend exists where the complaint against the insured,
construed liberally, alleges facts which could impose
liability upon the insured within the policy's coverage.
Truck Ins. Exch. v. VanPort Homes, 147 Wn.2d 751
(2002). The duty to defend is not, however, limitless.
E-Z Loader v. Travelers Ins., 106 Wn.2d 901, 910
(1986) (“We decline to impose on an insurer coverage of
a liability not set forth in the policy.”). A claim
that is clearly outside of the policy's coverage relieves
the duty to defend. Woo v. Fireman's Fund Ins.
Co., 161 Wn.2d 43, 53 (2007). The duty to indemnify,
unlike the duty to defend, turns on whether the facts of the
underlying matter are “actually covered.”
American Best Foods v. Alea London, 168 Wn.2d 398
insurer may not put its own interests ahead of its
insured's. Mut. of Enumclaw Ins. Co. v. T&G
Const., Inc., 165 Wash.2d 255, 269 (2008). To that end,
it must defend until it is clear that the claim is not
covered. Truck Ins. Exch., 147 Wash.2d at 765.
argues, and demonstrates, that its homeowners' policy
specifically excludes coverage for damages or liability
resulting from intentional acts. The policy's
“Property Coverages” exclude losses caused even
in part by intentional acts:
1. "We" do not pay for loss if one or more of
the following exclusions apply to the loss,
regardless of other causes or events that contribute to or
aggravate the loss, whether such causes or events act to
produce the loss before, at the same ...