United States District Court, W.D. Washington, Seattle
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
S. Lasnik United States District Judge
matter comes before the Court on “Plaintiff's
Motion for Summary Judgment.” Dkt. #14. For the
following reasons, plaintiff's motion is GRANTED.
Andrey Litvinchuk is an insured of plaintiff Commerce West
Insurance Company (“CWIC”). Dkt. #1 at ¶ 3.
On September 20, 2016, defendant was involved in an
automobile accident in Seattle, Washington. Id. at
¶ 12. At the time of the accident, defendant was driving
a 2015 Mercedes Sprinter. Id. Christopher Sharkey,
the driver of another vehicle involved in the accident, filed
a lawsuit in King County Superior Court against Litvinchuk
and the State of Washington in January 2018. Christopher
Sharkey and Katharine Sharkey v. State of Washington and
Andrey Litvincuk, No. 18-2-00347-4-SEA (the
“Underlying Lawsuit”); Ex. A, Dkt. #15-1 at 1-6.
Sharkey alleges that Litvinchuk negligently operated the
Mercedes and seeks damages for personal injuries arising from
the accident. Dkt. #1 at ¶ 14-15. In June 2018, CWIC
agreed to defend Litvinchuk in that lawsuit subject to a
reservation of rights. Id. at ¶ 17. CWIC now
seeks a declaratory judgment that it has no duty to defend or
indemnify Litvinchuk in the Underlying Lawsuit. Id.
at ¶ 30.
auto insurance policy with CWIC identifies only a 2009 Acura
TSX and a 2009 GMC Yukon as covered automobiles. Id.
at ¶ 10. The policy expressly excludes coverage for the
ownership, maintenance, or use of any vehicle that is not an
identified covered automobile and is owned by the insured or
furnished or available for the insured's regular use. Ex.
B, Dkt. #15-1 at 15 (Exclusion (B)(2)). The 2015 Mercedes
Sprinter was purchased and owned by defendant's
corporation, New Renaissance, Inc., and defendant regularly
uses it for his work. Dkt. #1 at ¶ 20; Ex. C, Dkt. #15-1
at 35:16-25. The Mercedes is separately insured by National
General Insurance Company, and that insurer is also defending
Litvinchuk in the Underlying Lawsuit. Dkt. #14 at 4; Ex. C,
Dkt. #15-1 at 32:14-23. Plaintiff's motion for summary
judgment is unopposed.
judgment is appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). To determine
whether an issue of material fact exists, the Court must
decide “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.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). The Court must “draw all
reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the
evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000) (citing Lytle v.
Household Mfg., Inc., 494 U.S. 545, 554-55 (1990)). A
court considering an unopposed summary judgment motion may
treat assertions of fact from the moving party as undisputed.
Washington, the interpretation of an insurance policy is a
question of law. Pub. Util. Dist. No. 1 v. Int'l Ins.
Co., 124 Wn.2d 789, 881 (1994). The Court must consider
the entire policy and apply a “fair, reasonable, and
sensible construction as would be given by the average person
purchasing insurance.” Overton v. Consol. Ins.
Co., 145 Wn.2d 417, 424 (2002) (quoting Sears v.
Grange Ins. Ass'n, 111 Wn.2d 636, 638 (1988)). If
the policy language is clear and unambiguous, the Court must
enforce it as written and may not modify it or create
ambiguity where none exists. Quadrant Corp. v. Am.
States. Ins. Co., 154 Wn.2d 165, 171 (2005). If an
ambiguity exists, it will be resolved in favor of the
insurance company's duty to indemnify is determined by
the insured's “actual liability to the claimant and
actual coverage under the policy.” Nat'l Union
Fire Ins. Co. of Pittsburgh, PA v. Coinstar, Inc., 39
F.Supp.3d 1149, 1156 (W.D. Wash. 2014) (internal quotation
marks omitted) (quoting Hayden v. Mut. of Enumclaw Ins.
Co., 141 Wash.2d 55, 64 (2000) (en banc)). To avoid
coverage, an insurer must show that the loss is
“excluded by specific policy language.” W.
Heritage Ins. Co. v. Rodriguez, No. C12-5758 RBL, 2014
WL 4085073, at *3 (W.D. Wash. Aug. 11, 2014) (citing
McDonald v. State Farm Fire & Cas. Co., 119
Wash.2d 724, 728, 837 (1992)). The duty to defend is based on
the insured's potential, rather than actual, liability.
State Farm Fire & Cas. Co. v. El-Moslimany, 178
F.Supp.3d 1048, 1054 (W.D. Wash. 2016). The Court must assess
whether the complaint, construed liberally, alleges facts
that may “impose liability upon the insured within the
policy's coverage.” W. Heritage Ins. Co.,
2014 WL 4085073, at *3 (citing Truck Ins. Exch. v.
VanPort Homes, 147 Wash.2d 751 (2002)). If the claims
are clearly outside the policy's coverage, the insurer is
relieved of its duty to defend. Id.
it is undisputed that the Underlying Lawsuit does not involve
any vehicle covered under defendant's CWIC policy. The
2015 Mercedes Sprinter is not a covered auto under the policy
and is expressly excluded by the policy language. Ex. B, Dkt.
#15-1 at 9, 15. Pursuant to exclusion (B)(2), defendant's
policy excludes liability coverage for “any
vehicle” owned by the insured or “[f]urnished or
available for [insured's] regular use.”
Id. at 15. Defendant's corporation owned the
Mercedes, and defendant confirmed that he used it
“regularly for work purposes.” Ex. C, Dkt. #15-1
at 35:16-25. Defendant acknowledged that his covered autos
were in working condition at the time of the accident, and
the Mercedes was not being used as a substitute for either of
those vehicles. See Ex. B, Dkt. #15-1 at 12, 25-26;
Ex. C, Dkt. #15-1 at 25:25 to 26:1-5, 35:16-25. The Mercedes
is not covered under the policy as a “newly acquired
auto” because it was purchased before the CWIC policy
period began and is separately insured. Dkt. #14 at 7.
Accordingly, the Mercedes falls within the exclusion and is
not covered by defendant's CWIC policy. The complaint
does not allege any possible claims arising out of
defendant's coverage under his CWIC policy.
the foregoing reasons, Commerce West Insurance Company's
unopposed motion for summary judgment is GRANTED. The Court
hereby DECLARES that Commerce West Insurance Company has no
duty to defend or indemnify Litvinchuk in the Underlying