United States District Court, W.D. Washington, Seattle
TAMMY J. DETRAY and GREGORY S. DEYTRAY, Plaintiffs,
AIG INSURANCE COMPANY OF CANADA, et al., Defendants.
ORDER GRANTING DEFENDANT NORTHBRIDGE COMMERICAL
INSURANCE CORPORATION'S MOTION FOR SUMMARY
HONORABLE RICHARD A. JONES, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Northbridge
Commercial Insurance Corporation's Motion for Summary
Judgment (“Motion”). Dkt. # 81. For the reasons
below, the Court GRANTS the Motion.
facts of this case have been extensively discussed in the
Court's prior order denying the parties' motions for
summary judgment and will not be repeated here. Dkt. # 77.
The Court incorporates the facts and analysis as detailed in
that order by reference. As noted in that order, the Court
concluded (i) there were no genuine issues of material fact
as to Mrs. DeTray's potential coverage under the
Northbridge policy and (ii) the underlying complaints did not
establish that she could “conceivably” be covered
by the Northbridge Policy. Id. at 17.
now brings a motion for summary judgment as to all of
Plaintiffs' remaining claims. Dkt. # 81. Plaintiffs
oppose the motion. Dkt. # 83.
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). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Where the moving
party will have the burden of proof at trial, it must
affirmatively demonstrate that no reasonable trier of fact
could find other than for the moving party. Soremekun v.
Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
2007). On an issue where the nonmoving party will bear the
burden of proof at trial, the moving party can prevail merely
by pointing out to the district court that there is an
absence of evidence to support the non-moving party's
case. Celotex Corp., 477 U.S. at 325. If the moving
party meets the initial burden, the opposing party must set
forth specific facts showing that there is a genuine issue of
fact for trial in order to defeat the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court
must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in that
party's favor. Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133, 150-51 (2000).
the court need not, and will not, “scour the record in
search of a genuine issue of triable fact.” Keenan
v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see
also White v. McDonnel-Douglas Corp., 904 F.2d 456, 458
(8th Cir. 1990) (the court need not “speculate on which
portion of the record the nonmoving party relies, nor is it
obliged to wade through and search the entire record for some
specific facts that might support the nonmoving party's
claim”). The opposing party must present significant
and probative evidence to support its claim or defense.
Intel Corp. v. Hartford Accident & Indem. Co.,
952 F.2d 1551, 1558 (9th Cir. 1991). Uncorroborated
allegations and “self-serving testimony” will not
create a genuine issue of material fact. Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.
2002); T.W. Elec. Serv. v. Pac Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
the Court's prior ruling, Northbridge requests summary
judgment in its favor as to all of Plaintiffs' remaining
claims, specifically that: (1) Plaintiffs are not entitled to
a defense or indemnity under the subject policy; (2)
Northbridge did not breach the contract by denying Plaintiffs
a defense or indemnity under the subject policy; (3)
Plaintiffs cannot succeed as a matter of law on their bad
faith claim because they are not insureds under the subject
policy; and (4) Plaintiffs cannot succeed as a matter of law
on their Consumer Protection Act (“CPA”) claim
because their theories of liability are not actionable by
noninsureds. Dkt. # 81 at 2.
reviewed the parties' submissions, the Court incorporates
by reference the full analysis in the its prior order
concerning Mrs. DeTray's potential coverage under the
Northbridge policy. There are no genuine issues of material
fact as to Mrs. DeTray's potential coverage under the
Northbridge policy and the complaints do not establish that
she could “conceivably” be covered by the
Northbridge Policy. See Dkt. # 77 at 17. The Court
now turns to whether Northbridge is entitled to summary
judgment on Plaintiffs' remaining claims.
initial matter, Plaintiffs request a continuance of the
motion to conduct discovery under Federal Rule of Civil
Procedure 56(d). Dkt. # 83 at 6-7. This rule applies where
the non-moving party must obtain “facts essential to
justify its opposition.” Fed.R.Civ.P. 56(d).
Northbridge's motion is based on the Court's prior
ruling that Plaintiffs are not insured under the Northbridge
policy. Because the Court has already made this finding,
Plaintiffs' request for a continuance for further
discovery to dispute this point is denied.
claim that Northbridge breached its duty to defend and seek a
declaratory judgment to that effect. Dkt. # 1-2. The duty to
defend under Washington law arises at the time an action is
first brought and is based on the potential for liability.
Woo v. Fireman's Fund Ins. Co., 164 P.3d 454,
459 (2007). “An insurer has a duty to defend when a
complaint against the insured, construed liberally, alleges
facts which could, if ...