Northfield Insurance Company v. Yates Wood & MacDonald Inc

[8] UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE [10] 11 NORTHFIELD INSURANCE CASE NO. 2:24-cv-00441-TL COMPANY, a foreign insurer, 12 ORDER ON MOTION FOR Plaintiff, 13 v. SUMMARY JUDGMENT 14 YATES, WOOD, & MACDONALD, INC., a Washington Corporation; 1000 15 MADISON, LLC, a Washington Limited Liability Company; GARY R. ALLEN, an 16 individual; and HOLLY PUGSLEY, an individual, [17] Defendants. [19] 20 This is an action for declaratory judgment regarding an insurer’s duty to defend and duty 21 to indemnify its insureds in an underlying state lawsuit. This matter is before the Court on 22 Plaintiff Northfield Insurance Company’s Motion for Summary Judgment. Dkt. No. 42. Having 23 reviewed Defendants’ response (Dkt. No. 47), Plaintiff’s reply (Dkt. No. 49), and the relevant 24 record, and finding oral argument unnecessary, see LCR 7(b)(4), the Court GRANTS the motion. 1 I. BACKGROUND 2 A. The Underlying Lawsuit 3 Defendant Holly Pugsley filed the underlying lawsuit in King County Superior Court. See 4 Dkt. No. 43-1 (complaint). She sued Defendant Gary R. Allen for damages arising out of an 5 alleged incident at the Chasselton Apartments, the apartment complex where she resided. See id. 6 ¶¶ 3.1–3.5, 4.1–4.3, 5.1–5.4, 6.1–6.3, 11.1–11.10. She also sued the owner of the apartments, 7 Defendant 1000 Madison, LLC (“Madison”), and its property manager, Defendant Yates, Wood, 8 & MacDonald, Inc. (“Yates”), for various claims. See id. ¶¶ 7.1–7.4 (both for negligence), 8.1– 9 8.5 (Yates for negligent training and supervision), 9.1–9.4 (Yates for negligent hiring and 10 retention), 10.1–10.5 (both for vicarious liability), 11.1–11.10 (all defendants for sex 11 discrimination), 12.1–12.3 (Madison for premises liability). 12 Defendant Pugsley alleges that, on or about August 14, 2020, she was entering her 13 apartment when she was approached by Defendant Allen, the property manager of the 14 Chasselton Apartments. Id. ¶ 2.1. Defendant Allen asked Defendant Pugsley if she was interested 15 in seeing a larger unit in the building, and when she accepted, he took her to an apartment on the 16 fourth floor. Id. ¶¶ 2.2, 2.4. After entering the apartment, Defendant Puglsey learned that it 17 belonged to Defendant Allen. Id. ¶ 2.4. Defendant Allen offered her a drink, which she accepted 18 due to feeling intimidated. Id. When Defendant Pugsley turned to pour out the drink in the sink, 19 she felt a strike to the back of her head and lost consciousness. Id. She woke up the next morning 20 in her own bed, feeling like she had a concussion and with her clothing disheveled. Id. ¶¶ 2.4, 21 2.5. Two days later, Defendant Allen apologized to Defendant Pugsley—an apology she 22 understood to be for the physical and sexual assault. Id. ¶ 2.5. 23 After the alleged incident, Defendant Pugsley reported the alleged assault to Defendant 24 Yates, which fired Defendant Allen based on her report as well as other alleged assaults or 1 attempted assaults. Id. ¶ 2.7. Defendant Yates told Defendant Pugsley that Defendant Allen had 2 been fired, but Defendant Allen refused to leave for another four months, leading Defendant 3 Pugsley to change her locks. Id. ¶ 2.8. Defendant Pugsley also began therapy for the emotional 4 trauma and mental anguish caused by Defendant Allen’s assault. Id. ¶ 2.9. 5 Glenn Walter became the new on-site property manager for the Chasselton Apartments 6 (and an employee of Defendant Yates). Id. Defendant Pugsley met with Mr. Walter to better 7 understand what had happened to her. Id. ¶ 2.10. Mr. Walter explained that he had been familiar 8 with Defendant Allen and his mother for years prior to the assault. Id. He stated that Defendant 9 Allen was hired by Defendant Yates without a background check and despite Mr. Walter’s belief 10 that Defendant Allen was a “pathological liar.” Id. He stated that Defendant Allen had been fired 11 for assaulting Defendant Pugsley and/or at least one other female tenant at the Chasselton 12 Apartments. Id. He also stated that Defendant Allen had previously been fired from a job for 13 sexually inappropriate behavior toward female customers and that he had forged checks. Id. 14 Mr. Walter later met with Defendant Pugsley again and reiterated the “salient points” of their 15 prior conversation, as well his belief that Defendant Allen had committed the assault. Id. ¶ 2.11.1 16 Defendant Pugsley alleges that “[a]s a result of the physical and sexual assaults,” she 17 sustained “personal injuries, emotional distress, and special and general damages.” Id. ¶ 2.12. 18 She alleges that Defendant Allen was hired by Defendant Yates “without adequate background 19 check, training, or supervision of any type.” Id. ¶ 2.15. She alleges that Defendant Madison 20 “failed to ensure” that Defendant Yates “staffed the Chasselton Apartments with employees that [22] 1 Defendant Yates offers extrinsic facts through the declaration of Kelly Szeto, submitted with its opposition. See [23] Dkt. No. 48. Plaintiff moves to strike the declaration. See Dkt. No. 49 at 4–5. The motion is DENIED as moot, however, as the Court’s Order relies only on the underlying complaint and insurance policy and is not affected by 24 the proffered extrinsic facts. 1 did not pose a risk of harm to its female tenants,” and that Defendant Madison “knew or should 2 have known of the risk posed by Defendant Allen.” Id. ¶ 2.17. 3 B. The Insurance Policy 4 Plaintiff Northfield Insurance Company issued an insurance policy (the “Policy”) to 5 Defendant Yates, which provided coverage from July 19, 2020, to July 19, 2021. See Dkt. 6 No. 44-1 (policy). The Policy includes the following Insuring Agreement, which states in 7 relevant part: 8 SECTION I – COVERAGES 9 COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY [10] 1. Insuring Agreement [11] a. We will pay those sums that the insured becomes legally obligated to pay as damages because of [12] “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty [13] to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” [14] to which this insurance does not apply. [15] [. . .] 16 b. This insurance applies to “bodily injury” and “property damage” only if: [17] (1) The “bodily injury” or “property damage” is 18 caused by an “occurrence” that takes place in the “coverage territory”; [19] (2) The “bodily injury” or “property damage” 20 occurs during the policy period[.] 21 [. . .] 22 SECTION V – DEFINITIONS 23 [. . .] [24] 1 3. “Bodily injury” means bodily injury, sickness or disease sustained by a person, including death 2 resulting from any of these at any time. 3 4. “Coverage territory” means: 4 a. The United States of America (including its territories and possessions), Puerto Rico and 5 Canada[.] [. . .] [6] 13. “Occurrence” means an accident, including [7] continuous or repeated exposure to substantially the same general harmful conditions. [8] Dkt. No. 44-1 at 20, 31–32 (boldface in original). Relevant to the disposition of this motion, the [9] Policy also contains the following exclusion: [10] EXCLUSION – ASSAULT OR BATTERY [11] This endorsement modifies insurance provided under the 12 following: 13 COMMERCIAL GENERAL LIABILITY COVERAGE PART 14 PROVISIONS 15 1. The following exclusion is added to Paragraph 2., Exclusions, of SECTION I – COVERAGES – 16 COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY: [17] Assault or Battery [18] “Bodily injury” or “property damage” arising out of any act of “assault” or “battery” committed by any person, [19] including any act or omission in connection with the prevention or suppression of, or in response to, such [20] “assault” or “battery”. [21] [. . .] 22 3. The following is added to the DEFINITIONS Section: 23 “Assault” means any attempt or threat to inflict injury to another, including any conduct that would reasonably place 24 another in apprehension of such injury. 1 “Battery” means any intentional, reckless or offensive physical contact with, or any use of force against, a person 2 without his or her consent that inflicts some injury, regardless of whether the resulting injury inflicted is 3 intended or expected. 4 Dkt. No. 44-1 at 37 (boldface in original). 5 C. Procedural History 6 On April 2, 2024, Plaintiff filed this declaratory-judgment action seeking a determination 7 of coverage for any claims arising out of the underlying lawsuit. See Dkt. No. 1. All Parties 8 except for Defendant Allen have appeared in this matter.2 The Court denied Defendants’ joint 9 motion to stay while staying discovery against Defendant Yates (see Dkt. No. 52), and it granted 10 Defendant Yates’s motion to amend counterclaims (see Dkt. No. 51), which Defendant Yates 11 later amended again by stipulation (see Dkt. No. 56). Trial is scheduled for February 23, 2026. 12 See Dkt. No. 50 (scheduling order). 13 II. LEGAL STANDARD 14 A. Summary Judgment 15 Summary judgment is appropriate where “the movant shows that there is no genuine 16 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 17 Civ. P. 56(a). A genuine issue of material fact exists where “the evidence is such that a 18 reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., [19] 477 U.S. 242, 248 (1986). The inquiry turns on “whether the evidence presents a sufficient 20 disagreement to require submission to a jury or whether it is so one-sided that one party must 21 prevail as a matter of law.” Id. at 251–52. [23] 24 2 The deadline to serve Defendant Allen was July 22, 2024. See Dkt. No. 25. 1 The court must draw all justifiable inferences in favor of the non-movant. Id. at 255 . The 2 court does not make credibility determinations or weigh evidence at this stage. Munden v. 3 Stewart Title Guar. Co., 8 F.4th 1040 , 1044 (9th Cir. 2021); see also Lujan v. Nat’l Wildlife 4 Fed’n, 497 U.S. 871, 888 (1990) (“[W]here the facts specifically averred by [the non-moving] 5 party contradict facts specifically averred by the movant, the [summary judgment] motion must 6 be denied.”). 7 If the non-movant bears the burden of proof at trial, the movant only needs to show an 8 absence of evidence to support the non-movant’s case. In re Oracle Corp. Sec. Litig., 627 F.3d 9 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once such a 10 showing is made, the burden shifts to the non-movant to show more than the mere existence of a 11 scintilla of evidence in support of its case—the party must show sufficient evidence that a jury 12 could reasonably find for the non-movant. Id. (citing Anderson, 477 U.S. at 252 ). Even if the 13 non-movant does not have the burden of proof at trial, it must nonetheless show that a genuine 14 issue of material fact exists by presenting evidence in its favor. F.T.C. v. Stefanchik, 559 F.3d 15 924 , 929–30 (9th Cir. 2009) (affirming summary judgment for plaintiff where defendants failed 16 to show significantly probative evidence to dispute plaintiff’s evidence). 17 In short, the Federal Rules of Civil Procedure “mandate[] the entry of summary 18 judgment, after adequate time for discovery and upon motion, against a party who fails to make a 19 showing sufficient to establish the existence of an element essential to that party’s case, and on 20 which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322 (citing 21 Fed. R. Civ. P. 56(c)). 22 B. Duty to Defend 23 “The insurer’s duty to defend is separate from, and substantially broader than, its duty to 24 indemnify.” Nat’l Sur. Corp. v. Immunex Corp., 176 Wn.2d 872, 878 , 297 P.3d 688 (2013) 1 (citing Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 760 , 58 P.3d 276 (2002)). The 2 duty to defend “generally is determined from the ‘eight corners’ of the insurance contract and the 3 underlying complaint.” Expedia, Inc. v. Steadfast Ins. Co., 180 Wn.2d 793, 803 , 329 P.3d 59 4 (2014). The duty “arises when a complaint against the insured, construed liberally, alleges facts 5 which could, if proven, impose liability upon the insured within the policy’s coverage.” Id. 6 (quoting Truck Ins. Exch., 147 Wn.2d at 760 ); accord Woo v. Fireman’s Fund Ins. Co., 161 7 Wn.2d 43 , 52–53, 164 P.3d 454 (2007). “An insurer is not relieved of its duty to defend unless 8 the claim alleged in the complaint is ‘clearly not covered by the policy.’” Woo, 161 Wn.2d at 53 9 (quoting Truck Ins. Exch., 147 Wn.2d at 760 ). “[I]f a complaint is ambiguous, a court will 10 construe it liberally in favor of ‘triggering the insurer’s duty to defend.’” Id. (quoting Truck Ins. 11 Exch., 147 Wn.2d at 760 ); see also Immunex, 176 Wn.2d at 880 (“[I]f there is any reasonable 12 interpretation of the facts or the law that could result in coverage, the insurer must defend.” 13 (quoting Am. Best Food, Inc. v. Alea London, Ltd., 168 Wn.2d 398, 405 , 229 P.3d 693 (2010))). 14 “In sum, the duty to defend is triggered if the insurance policy conceivably covers the allegations 15 in the complaint . . . .” Woo, 161 Wn.2d at 53 (emphasis in original). 16 “There are two exceptions to the rule that the duty to defend must be determined only 17 from the complaint, and both the exceptions favor the insured.” Id. (quoting Truck Ins. Exch., [18] 147 Wn.2d at 761 ). “First, if it is not clear from the face of the complaint that the policy provides 19 coverage, but coverage could exist, the insurer must investigate and give the insured the benefit 20 of the doubt that the insurer has a duty to defend.” Id. (citing Truck Ins. Exch., 147 Wn.2d at 21 761). The insurer has the burden “to determine if there are any facts in the pleadings that could 22 conceivably give rise to a duty to defend.” Id. at 53–54 (emphasis in original) (citing R.A. 23 Hanson Co. v. Aetna Ins. Co., 26 Wn. App. 290, 294 , 612 P.2d 456 (1980)). “Second, if the 24 allegations in the complaint ‘conflict with facts known to or readily ascertainable by the insurer,’ 1 or if ‘the allegations . . . are ambiguous or inadequate,’ facts outside the complaint may be 2 considered.” Id. at 54 (quoting Truck Ins. Exch., 147 Wn.2d at 761 ). “The insurer may not rely 3 on facts extrinsic to the complaint to deny the duty to defend—it may do so only to trigger the 4 duty.” Id. (citing Truck Ins. Exch., 147 Wn.2d at 761 ). 5 Finally, “[w]hen interpreting an insurance policy, [a court] give[s] the language its plain 6 meaning, construing the policy as the average person purchasing insurance would.” Robbins v. 7 Mason Cnty. Title Ins. Co., 195 Wn.2d 618 , 626, 462 P.3d 430 (2020). “The Washington 8 Supreme Court has consistently ruled that where the policy language is clear and unambiguous, 9 it must be enforced as written.” Shepard v. Foremost Ins. Co., Inc., No. C08-434, 2009 WL 10 675093, at *6 (W.D. Wash. Mar. 11, 2009) (citing, inter alia, Wash. Pub. Util. Dist. Utils. Sys. v. 11 Pub. Util. Dist. No. 1 of Clallam Cnty., 112 Wn.2d 1 , 771 P.2d 701 (1989)). 12 III. DISCUSSION 13 A. Duty to Defend 14 Here, the Court finds that the claims alleged in the Complaint are not even conceivably 15 covered by the Policy, as they fall under the Policy’s assault and battery exclusion. All of 16 Defendant Pugsley’s claims against Defendant Yates concern “act[s] or omission[s] in 17 connection with the prevention or suppression of, or in response to,” the alleged assault and/or 18 battery by Defendant Allen. Dkt. No. 44-1 at 37. Defendant Pugsley alleges that Defendant Yates 19 negligently hired Defendant Allen without a background check, negligently failed to train or 20 supervise him, and failed to warn tenants and the public of Defendant Allen’s possible harm to 21 others. See Dkt. No. 43-1 ¶¶ 2.15, 2.17, 7.1–7.4, 8.1–8.5, 9.1–9.4, 12.1–12.3. These allegations 22 constitute both acts (i.e., hiring) and omissions (i.e., no background check, no training or 23 supervision, no warnings) “in connection with the prevention or suppression” of Defendant 24 Allen’s alleged attack. See, e.g., Northfield Ins. Co. v. Sandy’s Place, LLC, 530 F. Supp. 3d 952 , 1 967 (E.D. Cal. 2021) (holding a substantially similar exclusion applied to claims that defendants 2 “negligently owned, operated, controlled and managed” a bar where shooting occurred). 3 In its response, Defendant Yates argues that the Complaint makes a distinction between 4 “pre-assault” and “post-assault” conduct, and that Plaintiff has a duty to defend as to Defendant 5 Yates’s post-assault conduct. See Dkt. No. 47 at 10–12 (discussing Am. Best Food, 168 Wn.2d 6 398 , and Homesite Ins. Co. of the Midwest v. Walker, No. C18-5879, 2019 WL 4034690 (W.D. 7 Wash. Aug. 27, 2019)). Although Washington courts do make “a preassault/postassault 8 distinction” in analyzing “arising out of” assault and battery exclusions, Am. Best Food, 168 9 Wn.2d at 407, the distinction is made irrelevant here by additional language in the Policy: 10 Coverage is excluded for injury from acts or omissions “in response to” an assault or battery, 11 which unambiguously includes Defendant Yates’s alleged conduct after the assault (i.e., 12 Defendant Allen’s termination, delay in his eviction). This language was not at issue in American 13 Best Food (exclusion for injury “arising out of . . . [a]ssault and/or [b]attery” or “[a]ny actual or 14 alleged negligent act or omission in the prevention or suppression of” the assault or battery, 168 15 Wn.2d at 406) or Homesite (exclusion for injury “arising out of” assault or battery, 2019 WL 16 4034690, at *3). 17 Moreover, even when construing the complaint liberally, the Court finds the Complaint 18 alleges claims regarding only the hiring, management, and retention of Defendant Allen, not any 19 “post-assault” conduct. Defendant Yates cites to Defendant Pugsley’s claim for negligence (see 20 Dkt. No. 43-1 ¶¶ 7.1–7.4), but that claim (and all the others) says nothing about Defendant 21 Yates’s behavior after the assault. Defendant Yates also cites to Plaintiff’s allegations regarding 22 events after the alleged assault (see id. ¶¶ 2.7–2.11), but these paragraphs also do not support its 23 argument. Most of the cited allegations are about Defendant Yates’s termination of Defendant 24 Allen (presumably a positive step from Defendant Pugsley’s perspective) or information that 1 Defendant Pugsley learned after the assault about Defendant Allen’s history and reputation prior 2 to his hiring by Defendant Yates (which track to the acts or omissions in connection with the 3 prevention of the assault already discussed). While Defendant Pugsley makes a passing 4 allegation that Defendant Yates “did nothing to evict” Defendant Allen for four months (id. 5 ¶ 2.8), this single sentence regarding post-assault conduct appears to simply complete the 6 narrative and may also speak to Defendant Yates’s management of its employees. Ultimately, 7 Defendant Pugsley clarifies elsewhere the gravamen of her claims: Defendant Yates’s failure in 8 creating the risk of Defendant Allen in the first place. See id. ¶¶ 2.15, 2.17. 9 Therefore, as to the duty to defend, Plaintiff’s motion is GRANTED.3 10 B. Duty to Indemnify 11 “[T]he duty to indemnify ‘hinges on the insured’s actual liability to the claimant and 12 actual coverage under the policy.’” Woo, 161 Wn.2d at 53 (emphasis in original) (quoting 13 Hayden v. Mut. of Enumclaw Ins. Co., 141 Wn.2d 55, 64 , 1 P.2d 1167 (2000)); see also George 14 Sollitt Corp. v. Howard Chapman Plumbing & Heating, 67 Wn. App. 468, 475 , 836 P.2d 851 15 (1992) (“The duty to indemnify arises when the plaintiff in the underlying action prevails on 16 facts that fall within coverage.”). In other words, “the duty to indemnify exists only if the policy 17 actually covers the insured’s liability.” Id. (emphasis in original); accord Immunex, 176 Wn.2d 18 at 879 . 19 Here, the Court has already found that the Policy does not conceivably cover the claims 20 in the underlying lawsuit, including the post-assault conduct by Defendant Yates (to the extent 21 any such conduct is even alleged or relevant to the asserted claims). See supra Section III.B. “If 22 there is no duty to defend, then there is no duty to indemnify.” Am. Strategic Ins. Corp. v. [23] 3 Because the Court grants the motion based on this exclusion, it need not reach Plaintiff’s additional arguments 24 regarding other limitations and exclusions contained in the Policy. 1 Jackson, No. C23-5461, 2024 WL 3521530 , at *8 (W.D. Wash. July 24, 2024) (citing Liberty 2 Mut. Ins. Co. v. Lange, No. C20-309, 2023 WL 4704712 , at *6 (W.D. Wash. July 24, 2023)). 3 Defendant Yates argues that the motion should be denied because there are disputed material 4 facts regarding causation of Defendant Pugsley’s injuries (see Dkt. No. 47 at 23), but these facts 5 are not relevant to the Court’s application of the assault and battery exclusion. 6 Therefore, as to the duty to indemnify, Plaintiff’s motion is GRANTED. 7 IV. CONCLUSION 8 Accordingly, Plaintiff’s Motion for Summary Judgment (Dkt. No. 42) is GRANTED. 9 Plaintiff does not owe a duty under the Policy to defend or indemnify Defendant Yates in Holly 10 Pugsley v. Gary R. Allen, et al., King County Superior Court Cause No. 23-2-14966-1 SEA. 11 Dated this 3rd day of December 2024. [12] A [13] Tana Lin United States District Judge