Tree Top Inc v. Starr Indemnity and Liability Company

Filing 37

ORDER HOLDING THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT IN ABEYANCE AND SETTING BRIEFING SCHEDULE. 22 Motion for Summary Judgment and 25 Motion for Summary Judgment held in ABEYANCE. Signed by Judge Salvador Mendoza, Jr. (RG, Ops Supervisor)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Jul 13, 2017
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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SEAN F. MCAVOY, CLERK

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TREE TOP, INC., a Washington
corporation,
Plaintiff,

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v.

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STARR INDEMNITY AND
LIABILITY CO., a foreign insurance
corporation,

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No. 1:15-CV-03155-SMJ

ORDER HOLDING THE
PARTIES’ CROSS-MOTIONS FOR
SUMMARY JUDGMENT IN
ABEYANCE AND SETTING
BRIEFING SCHEDULE

Defendant.

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On July 12, 2017, the Court heard oral argument on the parties’
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cross-motions for summary judgment. ECF No. 36. At this hearing, Plaintiff
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raised a new argument regarding Defendant’s “fortuity” or “known-loss” defense.
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Plaintiff argues that if the Court applies the defense here, it would break new
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ground by extending the known-loss defense to a class of insurance policies to
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which the defense has not applied before. Since the parties have not briefed the
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issue, the Court ORDERS the parties to address: (1) whether applying the
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known-loss defense here would in fact extend it to a new category of insurance
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policies—claims based policies—to which Washington courts have not previously
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ORDER - 1

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applied the defense; and (2) whether this Court should certify this issue to the

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Washington State Supreme Court.

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The Court further SETS the following briefing schedule. Plaintiff, as the

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party who raised the issue, shall file a brief no longer than 10 pages addressing

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the two questions above no later than August 3, 2017. Defendant shall file a

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response no longer than 10 pages no later than August 24, 2017. Plaintiff shall

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then file a reply, if any, no longer than 5 pages no later than September 7,

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2017.

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Finally, the Court will hold the cross-motions for summary judgment, ECF

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Nos. 22 and 25, in ABEYANCE until the issue discussed in this order is resolved.

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Accordingly, IT IS HEREBY ORDERED:

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questions above no later than August 3, 2017

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Plaintiff shall then file a reply, if any, no longer than 5 pages no
later than September 7, 2017.

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Defendant shall file a response no longer than 10 pages no later
than August 24, 2017.

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Plaintiff shall file a brief no longer than 10 pages addressing the two

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Defendant Starr Indemnity & Liability Company’s Motion for

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Summary Judgment, ECF No. 22, is held in ABEYANCE until

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otherwise ordered by this Court.

ORDER - 2

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5.

Plaintiff’s Response to Defendant Starr Indemnity & Liability

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Company’s Motion for Summary Judgment and Cross-Motion for

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Summary Judgment, ECF No. 25, is held in ABEYANCE until

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otherwise ordered by this Court.

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IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order
and provide copies to all counsel.
DATED this 13th day of July 2017.

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__________________________
SALVADOR MENDOZA, JR.
United States District Judge

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ORDER - 3