IDS Property Casualty Insurance Co v. Fellows

Filing 198

MINUTE ORDER granting in part and denying in part Plaintiff's oral motion pursuant to Federal Rule of Civil Procedure 50(a). Defendant's fifth counterclaim for constructive fraud is DISMISSED with prejudice. Defendant's sixth counterclaim for negligence is DISMISSED with prejudice. Authorized by Judge Thomas S. Zilly. (SWT)

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8

IDS PROPERTY AND CASUALTY
INSURANCE COMPANY,
Plaintiff,

9
10
11

v.

C15-2031 TSZ
MINUTE ORDER

CHARLES H. FELLOWS,
Defendant.

12
13

The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:

14

(1)
Plaintiff’s oral motion pursuant to Federal Rule of Civil Procedure 50(a) is
GRANTED in part and DENIED in part as follows:

15
16
17
18
19
20
21
22

(a)
Defendant’s fifth counterclaim for constructive fraud is DISMISSED
with prejudice. Defendant has not pleaded or identified in his trial brief or
proposed jury instructions the requisite fiduciary duty or interested or sinister
motive to proceed forward with this counterclaim. See Green v. McAllister, 103
Wn. App. 452, 467-68, 14 P.3d 795 (2000); see also Hunter v. Ferebauer, 980 F.
Supp. 2d 1251, 1265 (E.D. Wash. 2013) (“Washington case law on constructive
fraud is underdeveloped, but it appears that there must be a breach of a fiduciary
duty in order for a [party] to prevail on a constructive fraud claim.”). Moreover,
the doctrine of constructive fraud is “inherently and exclusively in equity,” Dexter
Horton Bldg. Co. v. King Cnty., 10 Wn.2d 186, 191, 116 P.2d 507 (1941), and
even if Fellows could pursue such counterclaim, its resolution would be for the
Court, not the jury. Thus, the jury will not be instructed as to this counterclaim.
In addition, the Court concludes, as a matter of law, that defendant has not
presented sufficient evidence to demonstrate that he is entitled to relief in equity.

23
MINUTE ORDER - 1

1
2
3
4

(b)
Defendant’s sixth counterclaim for negligence is DISMISSED with
prejudice. Defendant has not pleaded or identified in his trial brief or proposed
jury instructions the requisite duty independent of the insurance policy. See
Eastwood v. Horse Harbor Found., Inc., 170 Wn.2d 380, 241 P.3d 1256 (2010).
The duties described in defendant’s objections, docket no. 186, to the discussion
draft of jury instructions circulated on March 24, 2017, and any objections made
during trial arise solely from the contract between the parties and cannot be the
basis of a claim in negligence.

5
6
7
8
9
10
11

(c)
With regard to the lost business attire and formal wear, the Court
concludes that coverage is not owed. If Michaela Osborne committed theft of the
business attire and formal wear, then the theft is not a covered peril because it was
committed by an insured person. If Osborne did not commit theft, then the loss of
the business attire and formal wear does not appear to have been caused by any of
the perils named in the policy. The only peril other than theft that Fellows asserts
might apply to the loss of his business attire and formal wear is vandalism, which
involves the “destruction or defacement” of property. See Webster’s 3d New Int’l
Dictionary 2532 (1981). No evidence has been offered concerning what happened
to the business attire and formal wear or showing that it was destroyed or defaced,
and the Court concludes that no basis exists to allow any counterclaim relating to
such items.
Except as granted, plaintiff’s Rule 50(a) motion is denied.

12

(d)

(2)
13 record.

The Clerk is directed to send a copy of this Minute Order to all counsel of

14

Dated this 4th day of April, 2017.

15
William M. McCool
Clerk

16
17

s/Karen Dews
Deputy Clerk

18
19
20
21
22
23
MINUTE ORDER - 2