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Tidewater Holdings Inc v. Westchester Fire Insurance Co.

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

May 31, 2019

TIDEWATER HOLDINGS, INC., et al., Plaintiffs,
v.
WESTCHESTER FIRE INSURANCE COMPANY, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          BENJAMIN H. SETTLE United States District Judge.

         This matter comes before the Court on Defendant Westchester Fire Insurance Company's (“Westchester”) motion to dismiss. Dkt. 12. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.

         I. PROCEDURAL HISTORY

         On December 18, 2018, Plaintiffs Tidewater Barge Lines, Inc., Tidewater Environmental Services, Inc., and Tidewater Holdings, Inc. (collectively “Tidewater”) filed a complaint against Westchester asserting claims for breach of contract and declaratory judgment. Dkt. 1.

         On February 22, 2019, Westchester filed a motion to dismiss. Dkt. 12. On March 18, 2019, Tidewater responded. Dkt. 13. On March 22, 2019, Westchester replied. Dkt. 16.

         II. FACTUAL BACKGROUND

         Almost all of the facts in this matter are undisputed, and the parties' dispute essentially boils down to the interpretation of their insurance contract. Westchester issued Tidewater a corporate indemnity package effective October 1, 2017, through October 1, 2018. Dkt. 14, Ex. A (“Policy”). Tidewater cites three relevant coverage provisions: (1) computer fraud coverage, (2) claim investigation expense coverage, and

         (3) supplemental funds transfer coverage. First, the computer fraud coverage provision provides as follows:

The Insurer will pay for loss of or damage to Money, Securities and Other Property resulting directly from the use of any computer to fraudulently cause a transfer of that property from inside the Premises or Banking Premises:
a) To a person (other than a Messenger) outside those Premises; or
b) To a place outside those Premises.

Id. at 19 (emphasis omitted) (ECF pagination).

Second, the claims investigation coverage provision provides as follows:
The Insurer will pay the reasonable and necessary costs, fees or other expenses incurred in excess of the deductible amount of $5, 000 and paid by the Company to an independent accounting, auditing or other service used to determine the amount of loss occurring from a valid and covered claim (“Claims Expense”). Provided, however, any such payment shall only be made after the settlement of all covered loss and only if such ...

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