United States District Court, W.D. Washington, Tacoma
B. Leighton, United States District Judge
MATTER is before the Court on Plaintiff American Family's
Motion for Summary Judgment [Dkt. # 16] American Family's
insured, Bell, is the defendant in a state court tort action.
The plaintiff there, Dye, claims Bell “knowingly,
intentionally, or negligently exposed him to a sexually
transmitted disease.” Kurkoski Dec. Dkt. # 17 at Ex. 1.
sought coverage and a defense from American Family under her
homeowners policy. American Family brought this Declaratory
Judgment action and now seeks a judgment as a matter of law
that it has no duty to defend or indemnify Bell based on
Dye's allegations and on the policy's definition of
bodily injury (“bodily injury does not include exposure
to disease transmitted through sexual contact”), and on
its exclusion for occurrences arising out of “sexual
contact, regardless of intent to cause injury.”
Kurkoski Dec. Dkt. # 17 at Ex. 2 at pp. 16 and 29 (pages 1
and 14 of the policy).
has not appeared or responded to the Motion, and is in
default. Dkt. # 19. Dye has not appeared or responded.
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) (emphasis added); 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.
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 v. Liberty Lobby, Inc., 477 U.S. 242, 248
of an insurance contract is a question of law.” Woo
v. Fireman's Fund Ins. Co., 161 Wash.2d 43, 52
(2007). Terms are to be interpreted as the “average
person purchasing insurance” would understand them.
Id. While the insured has the burden of proving that
claims fall within a grant of coverage, the insurer has the
burden of proving that an exclusion bars coverage. See
McDonald v. State Farm Fire & Cas. Co., 119 Wn.2d
724, 731 (1992). The duty to defend is broader than the duty
to indemnify, and arises at the time the action is filed
based on the potential for liability. Woo, 161
Wash.2d at 52. “If the insurer is unsure of its
obligation to defend in a given instance, it may defend under
a reservation of rights while seeking a declaratory judgment
that it has no duty to defend.” Truck Ins. Exch. v.
Vanport Homes, Inc., 147 Wash.2d 751, 761 (2002).
Washington, in a declaratory judgment action, the duty to
defend is determined by the facts alleged in the complaint.
Indian Harbor Ins. Co. v. Transform LLC, 2010 WL
3584412, at *3 (W.D. Wash. Sept. 8, 2010) (citing Holland
Am. Ins. Co. v. Nat'l Indem. Co., 75 Wash.2d 909,
911 (1969)). The insurer is permitted to use the “eight
corners rule” to determine whether, on the face of the
complaint and the insurance policy, there is an issue of fact
or law that could conceivably result in coverage under the
policy. See Xia v. ProBuilders Specialty Ins. Co.,
188 Wn.2d 171, 182, 400 P.3d 1234, 1240 (2017) (internal
citations omitted). If there is any reasonable interpretation
of the facts or the law that could result in coverage, the
insurer must defend. Id. “[I]f a complaint is
ambiguous, a court will construe it liberally in favor of
triggering the insurer's duty to defend.”
Woo, 161 Wash.2d at 53. Although an insurer may look
outside the complaint if the allegations are contradictory or
ambiguous, or if coverage is unclear, the insurer may only
rely on extrinsic facts to trigger the duty to
defend. Grange Ins. Ass'n v. Roberts, 179
Wash.App. 739, 752 (2013) (quoting Woo v. Fireman's
Fund Ins. Co., 161 Wash.2d 43, 52-54 (2007)).
“After obtaining a declaration of noncoverage, an
insurer will not be obligated to pay from that point
forward.” Natl Sur. Corp. v. Immunex Corp.,
176 Wash.2d 872, 885 (2013) (internal quotations omitted).
Family has met its summary judgment burden of demonstrating
that its policy number 46-BV2152-01does not conceivably cover
Dye's allegations against its insured, Bell, in Pierce
County Cause No. 18-2-11732-7. Its Motion for Summary
Judgment seeking a declaratory judgment to this effect is