United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO STRIKE OR CONTINUE
L. ROBART UNITED STATES DISTRICT JUDGE
the court is Defendant American Family Insurance
Company's (“AFI”) motion to strike Plaintiff
Naxos, LLC's (“Naxos”) supplemental
disclosures or continue the trial date. (Mot. (Dkt. # 49);
see also Reply (Dkt. # 54).) Naxos filed a response.
(Resp. (Dkt. # 52).) The court has considered the
parties' submissions, the relevant // portions of the
record, and the applicable law. Being fully advised, the
court DENIES AFI's motion.
The Sewage Spill and Naxos's Insurance Claim
formerly owned and operated Spiro's Greek Restaurant in
Kent, Washington. (Compl. (Dkt. # 1-2) ¶ 3.1.) On August
5, 2015, “[o]ver 600 gallons of black water sewage
spewed from a ruptured sewer pipe” into Spiro's.
(See Id. ¶¶ 3.1-3.4.) Naxos claims that
this incident caused significant damage to Spiro's and
ultimately forced Naxos to cease all business operations at
the restaurant. (See Id. ¶¶ 3.5-3.7.)
After this sewage spill, Naxos notified its insurer, AFI,
about the incident. (See Id. ¶ 3.8.) Although
AFI eventually began issuing payments to Naxos in response to
Naxos's insurance claim, Naxos alleges that AFI failed to
adequately respond to Naxos's claim and continues to
improperly withhold amounts owed to Naxos. (See Id.
The Underlying Action
filed its complaint in King County Superior Court on August
3, 2018. (See Compl. at 9.) AFI removed Naxos's
lawsuit to this court on August 30, 2018. (See Not.
of Removal (Dkt. # 1).) Naxos pleads causes of action for (1)
breach of contract, (2) insurance bad faith, (3) negligent
claims handling, (4) violation of Washington's Consumer
Protection Act (“CPA”), and (5) violation of
Washington's Insurance Fair Conduct Act
(“IFCA”). (Compl. ¶¶ 4.1-8.5.) Naxos
alleges that each cause of action arises out of AFI's
handling of Naxos's claim to recover insurance proceeds
as a result of the sewage spill at Spiro's. (See
Id. ¶¶ 3.2-3.34.) AFI counterclaims for (1)
breach of contract, (2) misrepresentation and concealment,
and (3) bad faith and violation of the CPA. (Answer (Dkt. #
15) at 13-14.)
Naxos's Damages Disclosures
motion to strike centers on the timeliness and adequacy of
Naxos's damages disclosures. (See generally
Mot.) Naxos issued its initial disclosures under Federal Rule
of Civil Procedure 26(a)(1) on November 28, 2018.
(See Muth Decl. (Dkt. # 50) ¶ 7, Ex. F
(“Initial Disc.”).) In those disclosures, Naxos
claimed the following categories of damages:
• The cost of “experts, engineers and public
• The cost of appraisal;
• The cost of physical damage to Spiro's;
• Lost profits;
• “[A]ll other out of pocket expenses suffered by
• The “damages arising out of” AFI's
breach of contract, CPA violation, IFCA violations, and bad
faith under the policy; and
• Naxos's Fees and costs.
(Id. at 215.) Naxos did not provide calculations or
estimates of its damages in its initial disclosures. (See
id.) Naxos did, however, indicate that “[t]he
total amount [of damages] will be determined by an expert at
a later date.” (Id.)
accordance with the court's case schedule, Naxos
disclosed its expert witnesses on September 11, 2019.
(See Am. Sched. Order (Dkt. # 14) at 1 (setting
September 11, 2019, deadline to disclose expert witnesses);
Muth Decl. ¶ 4, Ex. C.) Naxos disclosed one damages
expert, William Partin. (Muth Decl., Ex. C at 41-89
(“Partin Rpt.”).) According to Mr. Partin's
report, Naxos tasked him with “evaluati[ng] . . .
claims for economic damage asserted by Naxos, LLC”
arising out of Naxos's insurance dispute with ...