by Benjamin Helford | Dec 10, 2024 | Blog News
The Ninth Circuit Court of Appeals issued a memorandum opinion in National Surety Corp. v. TIG Insurance Co., No. 23-35575, 2024 U.S. App. LEXIS 29612, 2024 WL 4850828 (Nov. 21, 2024), interpreting how Oregon’s Environmental Cleanup Assistance Act (OECAA) deals with insurers’ contributions where the insurers have overlapping coverage for an insured liable for environmental cleanup.
In National Surety, an insured dry cleaner facility contaminated soil and groundwater. The insured was then sued for cleanup by Oregon’s Department of Environmental Quality. Two insurers for the dry cleaner disputed allocation of defense and indemnity costs.
The court first noted that although the statute of limitations for contribution is 6 years, under Oregon law, the statute of limitations is triggered separately for each payment as it is made. As a result, the court held the statute of limitations has not tolled for any payment made on or after March 8, 2014.
The court reversed the district court on the allocation of defense costs. The district court had apportioned the defense costs according to the insurers’ time on risk, finding that policy limits are irrelevant in allocating defense costs. The Ninth Circuit remanded for the district court to apply in the first instance the ORS 465.480(5) factors to the apportionment of defense costs, noting that OECAA provides the district court considerable discretion in weighing the factors and that it was not directing that any specific weight must be applied to any one factor.
Finally, the court held that, because the total amount that was owed was already determined, even if the allocation had not been, the trial court did not abuse discretion in granting prejudgment interest.
Judge Hamilton, in a concurring opinion, addressed consideration of the respective policy limits in allocating defense costs under Lamb-Weston, Inc. v. Oregon Auto Ins. Co., 219 Or 129, 346 P2d 643 (1959) and its progeny.
Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.
by Benjamin Helford | Sep 11, 2024 | Blog News
Schools Insurance Association of Washington (SIAW), represented by Soha & Lang, P.S. attorneys Paul Rosner and J. William Ashbaugh, prevailed in a 3-0 decision by the Washington Court of Appeals in Bremerton Sch. Dist. v. Sch. Ins. Ass’n of Wash., No. 85811-4-I, 2024 Wash. App. LEXIS 1726 (Ct. App. Aug. 26, 2024)
The case originates from a lawsuit brought by Joseph Kennedy seeking reinstatement as football coach, claiming the Bremerton School District’s decision not to renew his contract was a violation of his First Amendment rights and Title VII of the Civil Rights Act. SIAW defended the school district under a reservation of rights. Kennedy’s case was dismissed by the Western District of Washington and the Ninth Circuit.
The U.S. Supreme Court, in Kennedy v. Bremerton School District, 597 U.S. 507 (2022), reversed the Ninth Circuit, and ordered the Western District of Washington to enter a summary judgment for declaratory and injunctive relief in favor of the plaintiff Joseph Kennedy. Kennedy then sought attorney’s fees under 42 U.S.C. § 1988. Ultimately Kennedy and the school district reached a settlement on attorney’s fees for approximately $1.77 million, of which SIAW contributed $300,000. The school district then sued SIAW seeking indemnity for the remainder of the settlement. SIAW won at the trial court on summary judgment. The district then filed an appeal.The Court of Appeals affirmed the trial court’s dismissal on summary judgment. At issue on appeal was the application of an exclusion which precludes coverage for “[r]elief or redress in any form other than monetary damages, or for any fees, costs or expenses which an Insured may become obligated to pay as a result of any adverse judgment for declaratory relief.” The Court of Appeals agreed with SIAW that a fair and reasonable interpretation of the exclusion would remove coverage for attorney’s fees in the underlying matter.
The Court of Appeals then turned to the school district’s arguments. First the school district argued that the exclusion only precluded coverage for cost or expenses required to implement an adverse declaratory or injunctive relief judgment, rather than the attorney’s fees related to the judgment. The court held that the school district’s interpretation was not reasonable, as it ignored the plain meaning of the exclusion.
The district also argued that SIAW’s reservation of rights letter did not specifically mention that attorney’s fees would not be covered by the policy to demonstrate that SIAW effectively agreed with the school district’s interpretation. The court noted that this ignores the purpose of a reservation of rights letter and that the letter expressly stated that it is not “a waiver of any policy defense” and that the letter included the entirety of the language of the exclusion in question, giving the district ample notice that SIAW may rely on that exclusion.
The court similarly dismissed the district’s argument that attorney fees under 42 U.S.C. § 1988 were not dependent on the award of declarative relief and were an “intervening act.” The court disagreed, noting that Kennedy can only request the fees under 42 U.S.C. § 1988 because he had prevailed in the declarative and injunctive relief.
The court also dismissed the district’s argument that their interpretation was more consistent with the purpose of providing coverage for civil rights lawsuits, and that it was ambiguous on with respect to the term “monetary damages.” The court noted that the parties are free to contract as they wanted, and exclusions are normal. Also, the court noted that when viewed as the whole policy the term “monetary damages” was clearly separate from attorney fees.
After weighing the arguments, the court agreed with SIAW that “the only reasonable interpretation of the exclusion excludes coverage for an award of attorney fees and costs resulting from an adverse judgment for declaratory or injunctive relief.
Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.
by Soha Lang | Mar 27, 2024 | Blog News, Publications
On March, 14 2024, the Washington Supreme Court held, in Gardens Condo. v. Farmers Ins. Exch., 2024 Wash. LEXIS 165 (2024), that a resulting loss exception to a faulty workmanship exclusion preserved coverage under the insured’s all-risk policy because the workmanship resulted in a covered loss.
In that case, the insured had discovered water damage to the roof of its 26-unit condominium building, caused by insufficient interior vents and design issues preventing needed ventilation. The insured had the roof assembly redesigned and repaired in attempts to increase ventilation and eliminate condensation. However, the improvements still did not provide sufficient ventilation causing the accumulation of water vapor and condensation in the space between the roof surface and ceiling. The insured sought coverage for this loss, and the insurer denied coverage under the policy’s faulty workmanship exclusion, which contained a resulting loss exception and which the Court interpreted to mean, “if faulty workmanship causes a covered peril to occur and that covered peril results in loss or damage, the loss or damage will be covered.”
Relying on the holdings in Vision One LLC v. Philadelphia Indemnity Insurance Co., 174 Wn.2d 501, 276 P.3d 300 (2012), and Sprague v. Safeco Insurance Co. of America, 174 Wn.2d 524, 276 P.3d 1270 (2012), both involving faulty workmanship exclusions and resulting loss exceptions, the court held that the resulting loss exception preserved coverage because, although faulty workmanship existed, the faulty workmanship resulted in a covered loss caused by water vapor and condensation. If the insurer had desired, it could have drafted the policy differently by omitting the resulting loss exception entirely or, if included, by limiting the exception to “ensure that the entire causal chain resulting from an excluded peril would [have been] excluded.”
The Court affirmed the ruling in favor of the insured.
Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.
by Soha Lang | Feb 6, 2024 | Blog News
On January 26, 2024, the Alaska Supreme Court reviewed the superior court ruling regarding an insurance policy exclusion which excluded coverage for “bodily injury… [a]rising out of … the ownership, maintenance, use, loading or unloading of… an ‘aircraft.’” The injury at issue arose when the plaintiff was pushing a 1946 Piper PA-12 airplane in 2019. The Piper had been purchased by the plaintiff’s husband in 2011 and had not flown since it failed an inspection in 2014. The plaintiff’s husband had begun to repair a fabric covering which had led to the inspection failure and had removed the plane’s wings, tail rudder, and elevators from the fuselage. The rest of the fuselage was intact, as well as many other parts of the Piper. The Piper was insured under an aircraft owner-specific policy and was registered as an aircraft with the FAA.
The issue the court reviewed was whether the plaintiff’s injury from pushing the Piper arose out of the ownership and maintenance of an “aircraft,” which would preclude coverage under the above exclusion. The court found “as USAA argues, a reasonable person would understand that the terms of the policy exclude bodily injury ‘that has a causal connection to the possession and control over (ownership [of]) an airplane.’” The court also determined that the plain language of the exclusion was clear and that it would be unreasonable to limit the exclusion to when an aircraft was fully assembled and operable. The court found that “to conclude otherwise would ignore the policy’s exclusion of coverage for bodily injury arising out of maintenance of an aircraft.” The court further held that it would be unreasonable of a lay insured to assume that the exclusion no longer applied solely because the aircraft had been partially disassembled and was no longer fully intact. The superior court’s rulings were affirmed.
Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha & Lang, P.S., or its clients.
by Benjamin Helford | Feb 6, 2024 | Blog News
The Western District of Washington granted an insurer’s motion for summary judgment, holding there was no coverage for the underlying lawsuits in Am. Strategic Ins. Corp. v. Jackson, No. 3:23-cv-05461-RJB, 2024 U.S. Dist. LEXIS 17172 (W.D. Wash. Jan. 31, 2024). The underlying litigation involves a former boys’ basketball coach for Sumner High School who was alleged to have sexual molested multiple former players while they were minors. The insurer filed a declaratory action and a motion for summary judgment, seeking a declaration that there was no duty to defend nor indemnify the underlying lawsuits.
The former coach first argued that the Motion for Summary Judgment was premature, as he could not testify on his behalf without waiving Fifth Amendment rights in the criminal case. The Court held that there was no issue, as there were no “substantive grounds” as to why the testimony of the defendant was necessary to argue for coverage under the insurance policy.
The Court then moved to the substance. First, they noted that, under the policy, there was coverage for an “occurrence,” defined as “an accident.” The Court noted that the allegations in the underlying lawsuits did not allege an accident, but rather they “allege a series of intentional acts of childhood sexual abuse” by the defendant. The Court therefore held there was no “occurrence” so no coverage under the policy.
The Court also took note that multiple exclusions apply, in particular an exclusion for bodily injury that is “expected or intended by an insured,” and an exclusion for bodily injury “arising out of sexual molestation.” The Court held that each of these exclusions would independently remove coverage for the underlying lawsuits. The Court therefore granted the Motion for Summary Judgment to the insurer.
Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.
by Soha Lang | Jan 24, 2024 | Blog News
The Washington Supreme Court, in Pacific Lutheran Univ., et. al., v. Certain Underwriters at Lloyd’s London, 2024 Wash. LEXIS 55*, Case No. 100752-3 (2024), reviewed the trial court’s rulings for abuse of discretion in (1) denying the Insurers’ motion to dismiss the Colleges’ action, based on forum non conveniens; and (2) granting the Colleges’ motion to enjoin the Insurers from taking further action in a parallel case subsequently initiated by the Insurers in Illinois State Court, based on equitable factors. On January 18, 2024, the Supreme Court affirmed those rulings.
This action arises from an insurance coverage dispute based on losses allegedly caused by the COVID-19 pandemic. The Insurers issued “all risk” insurance policies to the Colleges through the EIIA, a nonprofit organization that provides risk management and insurance services to member institutions. The Colleges brought this action against the Insurers in their selected forum, the Pierce County Superior Court, consistent with the policies’ “suit against the company” clause (the “Washington Action”). Several months later, two of the defendant Insurers to the Washington Action commenced a parallel action against the EIIA in Illinois State Court, and subsequently joined the Colleges as defendants (the “Illinois Action”).
The Colleges moved to enjoin the Insurers from taking further action in the Illinois Action, and the Insurers moved to dismiss the Washington Action on the basis of forum non conveniens. The trial court ruled in favor of the Colleges, and the Insurers sought review by the Washington Supreme Court.
The Supreme Court held that the trial court did not abuse its discretion in electing to enforce the policies’ forum selection clause, by denying the Insurers’ motion to dismiss based on forum non conveniens. The Court explained that the common law doctrine of forum non conveniens refers to “the discretionary power of a court to decline jurisdiction when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another forum” and “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Here, the Colleges had the contractual right under the policies to select their desired forum, all sixty plaintiff Colleges elected for the dispute to be heard in Pierce County Superior Court, and the Insurers failed to establish that the relevant private- and public-interest factors justified denying the Colleges’ contractual right. Accordingly, the Supreme Court held that the trial court properly enforced the policies’ forum selection clause and affirmed the trial court’s ruling.
The Supreme Court further held that the trial court properly issued the injunction enjoining the Insurers from taking further action in the Illinois Action, by granting the Colleges’ motion based on equitable factors. The Court explained that an injunction is an equitable remedy, and that a Washington Court may enjoin parties before it from pursuing an out-of-state action where equity clearly demands. Here, the important factors relied on by the trial court were the timing in which the actions were filed, the parallelism of the actions, and the presence of a forum selection clause that established the Colleges’ contractual right to select forum. Accordingly, the Supreme Court held that the trial court properly enjoined the Insurers to protect those interests and affirmed the trial court’s ruling.
The trial court’s rulings on the motions were affirmed.
Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.
