Travelers Casualty Insurance Company of America v. Wild Waters, LLC et al

Filing 36

MEMORANDUM DECISION AND ORDER denying 24 Motion for Summary Judgment. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (klw) Modified on 8/30/2013 to relfect memorandum decision (cjm).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TRAVELERS CASUALTY
INSURANCE COMPANY OF
AMERICA, a Connecticut
corporation,

Case No. 2:12-cv-00481-CWD
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
WILD WATERS, LLC, an Idaho limited
liability company, and RIVER HOUSE,
LLC, an Idaho limited liability company,
Defendant.

INTRODUCTION
Travelers Casualty Insurance Company of America (Travelers), and Defendants
Wild Waters, LLC, and River House, LLC (Wild Waters), dispute whether the
commercial property insurance policy Wild Waters purchased from Travelers covers a
vandalism loss Wild Waters suffered on or about September 1, 2011. Travelers filed a
motion for summary judgment on May 15, 2013, seeking a declaration that it has no
obligation to provide coverage, and the policy excludes Wild Water’s damages. The
Court conducted a hearing on July 16, 2013. After carefully considering the parties’

MEMORANDUM DECISION AND ORDER - 1

briefs, oral arguments, the evidentiary record, and the relevant authorities, the Court will
deny Travelers’ motion.
FACTS1
Wild Waters operated a water park in Coeur d’Alene, Idaho. Wild Waters leases
the buildings from another entity, the Lavin Family Trust, which owns the water park,
and subleases the concessions buildings to River House. Mr. Stacey Lavin was the person
responsible for park operations.
Wild Waters customarily operated as a water park open to the public during the
summer from Memorial Day in May, to Labor Day in September. Considering the park’s
location in Northern Idaho, Wild Waters’ operation was seasonal, and it closed during the
fall, winter, and spring months. At the end of its summer season, park staff would prepare
the park for winter, by winterizing the pools, storing equipment, and closing accounts to
minimize its expenses during the off season. In March of each year, personnel would
prepare to open the park by hiring park personnel, preparing for concession and gift shop
sales, and conducting required maintenance and repair of the park facilities, such as gelcoating the waterslides and refinishing the pools.
As early as 2002, Mr. Tim Warner, an insurance broker with Moloney & O’Neill,
assisted Mr. Stacy Lavin with obtaining insurance for Wild Waters. (Warner Depo. at 4,
11, Dkt. 29-5.) In 2002, Mr. Warner represented Travelers and presented a quote to Wild
Waters for property and casualty insurance. The Travelers policy required renewal on a

1

The Court considers the following facts to be the material and undisputed facts for purposes of deciding the
motion.

MEMORANDUM DECISION AND ORDER - 2

yearly basis, and expired each year on the 5th of October. (Warner Depo. at 10—12, Dkt.
29-5.)
The Travelers policy issued to Wild Waters covered four buildings leased by Wild
Waters. The policy contained a coverage exclusion as follows:
C. LIMITATIONS
The following limitations apply to all policy forms and endorsements,
unless otherwise stated.
*****
5. If the building where loss or damage occurs has been “vacant” for more
than 60 consecutive days before loss or damage occurs:
a. We will not pay for any loss or damage caused by any of the following
even if they are Covered Causes of Loss
(1) Vandalism;
(2) Sprinkler leakage…;
(3) Building glass breakage;
(4) Discharge or leakage of water;
(5) Theft; or
(6) Attempted theft.
*****
F. DEFINITIONS
3. “Vacant” means:
a. When this policy is issued to a tenant, and with respect to that
tenant’s interest in Covered Property, building means the unit or
suite rented or leased to the tenant. Such building is vacant when it
does not contain enough business personal property to conduct
customary operations. 2
b. When this policy is issued to the owner or general lessee of a
building, building means the entire building. Such building is vacant
unless at least 31% of its total square footage is:
(1) Rented to a lessee or sub-lessee and used by the lessee or
sub-lessee to conduct its customary operations; and/or
(2) Used by the building owner to conduct customary
operations.
c. Buildings under construction or renovation are not considered
vacant.

2

The parties do not contend that section 3(a) applies here.

MEMORANDUM DECISION AND ORDER - 3

At the time Mr. Warner began assisting Mr. Lavin with procuring insurance in
2002, they discussed the vacancy clause. The consensus of both Mr. Warner and Mr.
Lavin at that time was that Wild Waters was always being used for the business, and
would not be considered vacant despite the seasonal closure. (Warner Depo. at 23—24,
Dkt. 29-5.)
In the spring of 2010, Mr. Lavin determined the park would not open that summer,
because spring weather prevented park personnel from performing necessary preparations
and maintenance. Mr. Warner learned that the park would not open for the summer 2010
season in June of 2010, when Mr. Lavin failed to renew the park’s separate liability
insurance policy covering its summer operations. (Warner Depo. at 28—29, Dkt. 29-5.)
As it had done in years prior, Travelers, through Mr. Warner, renewed the commercial
property insurance policy effective October 5, 2010.
In March of 2011, a similar situation confronted park personnel regarding the
inclement weather, and in May, the decision was made not to open for the 2011 summer
season.3 Again, due to the nonrenewal of the liability insurance policy, Mr. Warner knew
the park was not open to the public for the 2011 summer season. During the summer of
2011, Mr. Lavin was occasionally at the park to check on its status. Amy Hensley, the
park manager, and Rich Johnson also occasionally checked the park.

3

Travelers cites a newspaper article published July 11, 2010, that recounted financial difficulties facing the park as
the reason for its closure. However, the newspaper article does not refute the sworn testimony of Mr. Lavin, who
stated that weather prevented necessary repairs. In any event, the dispute regarding the reason for Wild Waters not
opening for the summer seasons is not material.

MEMORANDUM DECISION AND ORDER - 4

Mr. Lavin became aware of vandalism to the property on September 21, 2011,
when he received a telephone call from the local police department stating two suspects
had been apprehended. Mr. Lavin was not in Idaho at the time, but he believes the
vandalism loss could not have occurred prior to September 1, 2011. Wild Waters gave
notice to Travelers of a claim under the insurance contract and Mr. Hal Campbell was
assigned to handle the loss claim on behalf of Travelers. Mr. Campbell allegedly
informed Mr. Lavin that the loss was covered. Mr. Lavin claims he was unaware of the
vacancy provision in the policy. Travelers denied the claim under the vacancy exclusion,
because the park had not been open for business since September 2010.
It is Wild Waters’ position that it was conducting its customary operations when it
made the decision not to open for the 2011 season, because its customary operations
included not opening if inclement weather prohibited the necessary preparation and
maintenance for the summer season. Travelers, however, contends that Wild Waters was
not conducting customary operations because the park was not open to the public during
the summer water park season, and therefore had been vacant as defined by the policy for
more than sixty consecutive days prior to the loss.
ANALYSIS
1.

Summary Judgment Standards
A principal purpose of summary judgment is to “isolate and dispose of factually

unsupported claims ....” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). It is “not
a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually
MEMORANDUM DECISION AND ORDER - 5

insufficient claims or defenses [can] be isolated and prevented from going to trial with
the attendant unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986).
The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).
To carry this burden, the moving party need not introduce any affirmative evidence (such
as affidavits or deposition excerpts) but may simply point out the absence of evidence to
support the nonmoving party’s case. Fairbank v. Wunderman Cato Johnson, 212 F.3d
528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in its favor. Anderson, 477 U.S. at 256–57. The non-moving party
must go beyond the pleadings and show “by [its] affidavits, or by the depositions,
answers to interrogatories, or admissions on file” that a genuine issue of material fact
exists. Celotex, 477 U.S. at 324.
The party bearing the burden of proof at trial “must establish beyond controversy
every essential element of its ... claim.” S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d
885, 889 (9th Cir. 2003) (adopting decision of district court “as our own”). Because
Travelers bears the burden of proving at trial that there is no coverage, to succeed on its

MEMORANDUM DECISION AND ORDER - 6

summary judgment motion, it must establish beyond controversy every essential element
of its claim.
A party who does not have the burden “may rely on a showing that a party who
does have the trial burden cannot produce admissible evidence to carry its burden as to
the fact.” Fed. R. Civ. P. 56(c)(1)(B) (advisory committee’s note.) Furthermore, as a
general rule, the “party opposing summary judgment must direct [the Court’s] attention
to specific triable facts.” S. Cal. Gas Co., 336 F.3d at 889.
2.

Insurance Contract Interpretation4
Insurance policies are contracts between the insurer and the insured. Mortensen v.

Stewart Title Guar. Co., 2010 WL 2605798 *3 (Idaho 2010) (citing Hall v. Farmers
Alliance Mut. Ins. Co., 179 P.3d 276, 280 (Idaho 2008)). Whether an insurance policy is
ambiguous is a question of law over which the court exercises free review. Armstrong v.
Farmers Ins. Co. of Idaho, 205 P.3d 1203, 1205 (Idaho 2009) (citing Purvis v.
Progressive Cas. Ins. Co., 127 P.3d 116, 119 (Idaho 2005)) (citation omitted). If the
Court finds the policy language to be unambiguous, the Court is to construe the policy as
written, “and the Court by construction cannot create a liability not assumed by the
insurer nor make a new contract for the parties, or one different from that plainly
intended, nor add words to the contract of insurance to either create or avoid liability.” Id.
“Unless contrary intent is shown, common, non-technical words are given the meaning
applied by laymen in daily usage—as opposed to the meaning derived from legal usage—

4

Under Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938), the Court must apply Idaho state law to this
diversity case. Neither party appears to dispute the application of Idaho law to the case.
MEMORANDUM DECISION AND ORDER - 7

in order to effectuate the intent of the parties.” Id. (quoting Howard v. Ore. Mut. Ins. Co.,
46 P.3d 510, 513 (Idaho 2002)). Where there is an ambiguity in an insurance contract,
special rules of construction apply to protect the insured. Id. at 1206 (citing Hall, 179
P.3d at 281).
In determining whether a particular provision is ambiguous, the provision must be
read within the context in which it occurs in the policy. Armstrong, 205 P.3d at 1206
(citing Purvis, 127 P.3d at 119). An insurance policy provision is ambiguous if “it is
reasonably subject to conflicting interpretations.” North Pac. Ins. Co. v. Mai, 939 P.2d
570, 572 (Idaho 1997). If an ambiguity is found, and because insurance contracts are
adhesion contracts that are not typically subject to negotiation between the parties, any
ambiguity that exists in the contract is construed most strongly against the insurer and in
favor of the insured. Armstrong, 205 P.3d at 1206 (citing Arreguin v. Farmers Ins. Co.,
180 P.3d 498, 500 (Idaho 2008)). The Court also is to construe insurance contracts “in a
manner which will provide full coverage for the indicated risks rather than to narrow its
protection.” Smith v. O/P Transp., 918 P.2d 281, 284 (Idaho 1996). “The burden is on the
insurer to use clear and precise language if it wishes to restrict the scope of its coverage.”
Arreguin, 180 P.3d at 500.
3.

The Policy is Not Ambiguous
The Court finds the Policy, when taken as a whole, is not ambiguous. Nor do the

parties appear to contend that that the vacancy provision is ambiguous. Rather, the parties
argue instead about whether Wild Waters was conducting its customary operations,
which operations include being closed, such that Wild Waters was not “vacant” under the
MEMORANDUM DECISION AND ORDER - 8

terms of the policy for sixty days prior to the loss. Travelers asserts that, because the park
was closed during a time when it customarily would be open, and had not operated as a
water park for two summer seasons, the park was vacant at the time of the loss and for
the sixty day period prior to the loss. Thus, Travelers contends that the exception to
coverage applies.
Travelers relies upon four cases to support its position that Wild Waters’ closure
during the summer water park season renders the vacancy clause applicable. First, in
Bellevue Roller-Mill Co. v. London & L. Fire Ins. Co., 39 P.196 (Idaho 1895), a case that
remains viable today, the Idaho Supreme Court considered whether a mill run by water
power that shut down its operations during the winter was vacant under the terms of an
insurance policy. In Bellevue, the insurance company issued a policy that was void if a
covered building had become “vacant or unoccupied and remained so for ten days.” The
insurance company knew the mill could not be operated during cold weather, and had not
been operated during certain months in each previous year, but issued the policy. A fire
caused a loss during the winter closure.
The court held that, having known of the winter closure, the insurance company
waived its right to rely upon the vacancy clause, and was estopped from repudiating the
contract. Bellevue, 39 P. at 198. The court explained that nonoperation of the mill during
the winter was “incident to use of the mill, and taken into consideration by the insurance
company when it issued said policy for a period covering or including the time of such
nonoperation of the policy.” Id. The court described other situations where closures or
nonoccupation were incident to use—for example, a church that only conducted services
MEMORANDUM DECISION AND ORDER - 9

on Sunday, or a schoolhouse that was unoccupied during vacations. Id. Therefore, the
vacancy provision was waived, and the loss that occurred due to the fire was covered.
Similarly, in Keren Habinyon Hachudosh D’Rabeinu Yoel v. Philadelphia
Indemnity Ins. Co., 462 Fed. Appx. 70 (2nd Cir. 2012),5 an insurer excepted from
coverage any loss that occurred if the building had been vacant for more than 60
consecutive days before the loss. “Vacant” was defined as a building in which the owner
did not use at least 31% of the total square footage of the building to conduct its
“customary operations” within 60 days of the incident. Keren, 462 Fed. Appx. at 72. The
building was insured as a school, but no students had been enrolled, and the buildings
were primarily being used for storage of school supplies, furniture, and computers. In
defining the word “customary,” the court relied upon the context. In Keren, the building
was insured as a high school, so customary operations meant the activity of operating a
school. Id. at 73. The court held that the vacancy provision applied, and the loss was not
covered, because the building had not been used as a school for over a year. Id. at 72. The
court further explained that mere access to, or incidental use (such as for meetings) did
not constitute “customary operations.” Id. at 73—74.
In Oakdale Mall Assoc. v. Cincinnati Ins. Co., 702 F.3d 1119 (8th Cir. 2012), the
court confronted a vacancy clause similar to the one in Wild Waters’ policy that applied
to a shopping mall. The mall was deemed vacant unless at least 31% of its total square
footage was “rented to a lessee or sub-lessee and used by them to conduct their
customary operations; or used by the building owner to conduct customary operations.”
5

This case was not selected for publication in the Federal Reporter.

MEMORANDUM DECISION AND ORDER - 10

The mall in this case had only four operating tenants occupying less than 31% of the total
mall square footage. Other tenants “occupied” space, but were not actually open for
business. The mall argued, however, that it was actively seeking mall tenants to occupy
the space. The court rejected the mall’s argument, explaining that if its contention were
accepted, then a mall that was completely vacant with a large sign outside that said “for
lease” would be deemed fully occupied for purposes of the vacancy provision in the
insurance policy, which was an absurd result. Oakdale, 702 F.3d. at 1124. Nor did other
tenants’ use of their space for storage constitute “customary operations” of that tenant’s
business such that the mall could overcome the vacancy provision. Id. The mall’s
business, the court explained, was not that of a lessor---but that of a shopping mall. Id. at
1124—25. And if there were no tenants in the mall operating retail or other businesses,
the vacancy clause was considered applicable.
Finally, the last case cited is another unpublished decision from the Southern
District of Florida, JJD Assoc. of Palm Beach, LTD. v. Am. Empire Surplus lines Ins. Co.,
No. 11-80247, 2011 WL 5873001 (S.D. Fla. Nov. 22, 2011). Again, the vacancy clause
provided that the building covered by the policy was deemed vacant unless at least 31%
of its total square footage was rented to a lessee and “used by the lessee to conduct its
customary operations; and/or used by the building owner to conduct customary
operations.” 2011 WL 5873001 at *1. The covered property was a shopping center with
seven sub-properties, and the vandalized building was vacant for the sixty days prior to
the loss. The court explained that each sub-property or building had to be occupied under
the facts of this case. Id. at *2. As a means of disputing the vacancy provision, the
MEMORANDUM DECISION AND ORDER - 11

building tenant explained that maintenance personnel frequented the premises where the
loss occurred, and stored materials. However, the court rejected that argument, because
“customary operations” of a shopping center did not include storage of tools and sporadic
entry for maintenance purposes. Id. at *3.
Wild Waters attempts to distinguish the above cited cases, explaining that
Travelers knew the water park was seasonal, and that from the inception of the policy,
Wild Waters never changed the nature and character of its use as a water park. Rather, it
had simply not opened to admit customers because of inclement weather, but the
activities of preparation and maintenance had continued and the park was ready for
seasonal opening, weather permitting. Wild Waters argues that seasonal “waxing and
waning” in Wild Waters’ operations was “customary,” and noted that Mark Franken with
Travelers “acknowledged that had the waterslide park opened for the season, a vandalism
loss during the winter would be within customary operations.” (Mem. at 5, Dkt. 29.) Wild
Waters cites Bellevue as the most analogous to the facts of this matter.
The problem with Wild Waters’ argument and reliance upon Bellevue is that Wild
Waters’ loss did not occur during its customary closure period, but rather during the
summer, when it normally would be open to the public as a water park. Wild Waters had
not opened for business as a water park to the public for two consecutive summers prior
to the loss on September 1, 2011. Although Tim Warner, the agent who procured the
insurance policy for Wild Waters, knew the park would be vacant during the winter
months, and was of the opinion that winter closure was part of Wild Waters’ customary

MEMORANDUM DECISION AND ORDER - 12

operations, that is no different than the mill in Bellevue closing during the winter and
reopening during the summer, just as Wild Waters was supposed to do.
One distinguishing factor, however, is that in Bellevue, the mill suffered its loss
during the winter, whereas here, the loss occurred just after Wild Waters’ second summer
season, a time when it was supposed to be open to the public. Wild Waters can certainly
have periods of closure, and there is no doubt from the record that Travelers had to have
known of that fact given Wild Waters’ location in Northern Idaho. But Wild Waters’ loss
did not occur during its “usual and customary” winter closure period for normal
maintenance and repair operations, but instead just after it was supposed to be open for
the summer season. Wild Waters was not, therefore, engaged in its customary operations
at the time of the loss, or for the sixty days prior to the loss.
Like the school in Keren, Wild Waters could certainly have periods of customary
closure and remain engaged in its usual and customary operations. But it had not operated
as a water park, or been open to the public, for two consecutive summers. As in JJD
Assoc. of Palm Beach, mere incidental use as a storage facility and the performance of
occasional maintenance does not constitute customary operations. And, as in Oakdale, if
Wild Waters’ premise were accepted---that at any moment it could open to the public had
weather permitted---then Wild Waters could remained shuttered yet still be covered even
though it had not opened as a water park and did not intend to do so. Wild Waters was in
the business to open a water park each summer. It did not open for summer 2010 or
summer 2011.

MEMORANDUM DECISION AND ORDER - 13

But the above analysis does not end the Court’s inquiry in this case, and does not
result in summary judgment for Travelers under the facts presented.
4.

Waiver or Estoppel
Wild Waters argues that Travelers either waived or should be estopped from

applying the vacancy clause to deny coverage, because Mr. Warner, the insurance agent,
knowing that Wild Waters would be closed periodically, had procured a renewal of the
Travelers policy each year. Further, Wild Waters contends that, during the loss
investigation, Mr. Lavin was told that the claim was valid. Thus, Wild Waters contends
that, like in Bellevue, Travelers waived or should be estopped from applying the vacancy
provision because it knew that the park’s customary operations included not being open
for the public’s use.
In Shoup v. Union Security Life Ins. Co., 124 P.3d 1038 (Idaho 2005), the court
explained the components of estoppel in the insurance context. The court explained that
an insurance company is estopped to deny liability for which it contracted if the insured
reasonably relied upon the promises of or agreements with the soliciting representative of
the insurance company, and the company profits from the change in its position. Shoup,
124 P.3d at 1031. Generally, it is not the obligation of the insured to determine if he is
issued a policy under the insurer’s rules, Id. at 1031, but he does have an obligation to
read his policy and not blindly rely upon the subjective impressions he may have
obtained in talking with an agent, Foster v. Johnstone, 685 P.2d 802, 808 (Idaho 1984).
In applying Bellevue and Shoup, there are additional facts important here. During
the summer of 2010, Mr. Warner knew the park was not open during its customary
MEMORANDUM DECISION AND ORDER - 14

summer season. But in October of 2010, Mr. Warner procured a renewal of the Travelers
policy for another year. Mr. Lavin testified that the park was weather dependent, and
therefore there was no guarantee the park would open the following summer.
Travelers argues that Mr. Warner, who operated as an insurance broker and not as
an agent of Travelers, does not represent Travelers and therefore his statements or
knowledge cannot form the basis of an estoppel claim. Mr. Warner indicated in his
deposition that he procured Wild Waters’ general liability insurance through a
wholesaler, and the request went to many markets. But when asked whether he
“represented an insurance company” when he presented a quote to Wild Waters, Mr.
Warner answered, “yes.” (Decl. of Hedberg, Ex. 2, Warner Depo. at 10, Dkt. 32-2.) An
insurance broker, as distinguished from an agent, does not represent an insurance
company but places insurance with whatever company he can that is willing to insure the
risk. He is not, therefore, an agent of the insurer, but instead is an agent of the person
seeking insurance. Arley v. United Pacific Ins. Co., 379 F.2d 183, 188 n.5 (9th Cir. 1967.)
It is unclear from the record whether Mr. Warner was a broker or an agent, and whether,
because he knew of the park’s closure during summer of 2010 yet procured renewal of
the Travelers policy, as he did every year since 2002, his knowledge should be attributed
to Travelers.
With these additional facts, this case is analogous to Bellevue. In Bellevue, the loss
occurred during the winter months when the water was frozen and the insurer (or its
agent) knew the mill could not operate. Yet, the insurer issued the policy with the
vacancy exclusion, knowing of the routine and customary closure during winter months.
MEMORANDUM DECISION AND ORDER - 15

Under those circumstances, the court found waiver, and prevented application of the
vacancy provision when the loss occurred during the winter closure period.
Here, the critical fact precluding summary judgment is the park’s closure during
the summer of 2010, just prior to the renewal date in October of 2010 for the following
year’s operations. The facts are disputed whether Travelers, by and through Mr. Warner,
knew the park had been closed to the public during the summer of 2010.6 Yet, Travelers,
through Mr. Warner’s efforts, renewed the policy in October 2010. Under these facts,
Travelers cannot meet its burden. By renewing the policy after a summer season when
the park should have been open, the vacancy provision presumably would have operated
to preclude coverage from and after the policy renewal date. The park had not been used
to conduct customary operations in the sixty days prior to renewal, and would be closed
during the 2010-2011 winter season.
During normal operations and following a successful summer season, there is no
dispute that Mr. Lavin and Mr. Warner understood that the park would be closed for the
winter months, and that such closure was incidental to Wild Waters’ operation as a
seasonal business. The parties presumed that under normal operations (seasonal
operation), the vacancy clause would not be effective if a loss occurred during the winter
months. But there is no evidence in the record that the parties understood the effect of the
vacancy clause if the park had not opened to the public as was customary during the
summer season. Construing the evidence in favor of Wild Waters, as it must, the Court
6

There is no dispute Mr. Warner knew of the summer closure in 2010. But because the record is not clear
concerning the relationship of Mr. Warner to Travelers, the Court cannot conclude as a matter of law that Travelers
knew of that fact.

MEMORANDUM DECISION AND ORDER - 16

can reasonably infer that Wild Waters believed it was covered under the Travelers policy
because its winter closure was incidental to its customary operations, and had no reason
to believe the 2010 summer closure precluded coverage upon renewal in October of
2010.
Under the circumstances here, the insurer should not benefit from renewal of its
policy when the disputed facts raise an inference that it knew the park had been closed
prior to renewal, and the vacancy clause may be immediately operable such that coverage
for the entire policy period was precluded under the vacancy clause.7 Such were the facts
in Bellevue, where the court found the insurer had waived application of the vacancy
provision. The court commented that when an insurer issues a policy with full notice of
all the facts in the case, and “has received a party’s money under circumstances leading
him to suppose he is receiving indemnity,” the insurer is estopped from repudiating the
contract. Although the Court stops short of finding waiver or estoppel, the Court
concludes that Travelers has not met its burden of demonstrating the absence of a genuine
issue of material fact on the issue of waiver or estoppel.
CONCLUSION
For the reasons explained above, the Court concludes that the policy provision is
not ambiguous. Under the facts, Travelers has not met its burden of demonstrating the
absence of a genuine issue of material fact on every essential element of its claim. Wild
7

The Court focuses instead on the closure during summer 2010, not summer 2011. Because of the summer 2010
closure, there arguably was no coverage from the inception of the policy. Under the facts and the inference drawn by
the Court, coverage would be provided for the 2010-2011 season only if the loss had occurred sixty one days after
the park had opened to the public for the summer of 2011. But, according to Mr. Lavin, weather could prevent the
park from opening, and there was no guarantee (just an assumption) that the park would open the following summer
in 2011.

MEMORANDUM DECISION AND ORDER - 17

Waters has established that a genuine issue of material fact exists regarding its defense of
estoppel or waiver, and therefore the Court will deny Travelers’ motion for summary
judgment.

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1) Plaintiff’s Motion for Summary Judgment (Dkt. 24) is DENIED.

August 30, 2013

MEMORANDUM DECISION AND ORDER - 18