National Union Fire Insurance Company of Pittsburgh, Pa. v. Zillow, Inc.

Filing 37

ORDER re 36 Mandate of USCA. The court VACATES portions of its April 13, 2017 order 25 and a portion of the judgment 26 (see order for details). Zillow is ordered to file an amended counterclaim, if appropriate, within 20 days of this order. Parties to file a Joint Status Report within 14 days of this order proposing how the court should proceed on remand. Signed by Judge James L. Robart. (PM)

Case 2:16-cv-01461-JLR Document 37 Filed 04/17/20 Page 1 of 3

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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NATIONAL UNION FIRE
INSURANCE COMPANY OF
PITTSBURGH PA,

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CASE NO. C16-1461JLR
ORDER ON REMAND
FOLLOWING APPEAL

Plaintiff,
v.

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ZILLOW, INC.,

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Defendant.

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Before the court is the opinion and mandate of the Ninth Circuit Court of Appeals

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(1) affirming in part and reversing in part the court’s order entering judgment on the

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pleadings in favor of Plaintiff National Union Fire Insurance Company of Pittsburgh, Pa.

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(“National Union”) and dismissing Defendant Zillow, Inc.’s (“Zillow”) counterclaim, and

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(2) remanding this matter for further proceedings. (9th Cir. Mem. Op. (Dkt. # 33); 9th

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Cir. Mandate (Dkt. # 36); see also 4/13/17 Order (Dkt. # 25).)

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ORDER - 1

Case 2:16-cv-01461-JLR Document 37 Filed 04/17/20 Page 2 of 3

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The Ninth Circuit reversed this court’s determination that Zillow’s professional

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liability insurance policy (“the Policy”) did not cover a copyright-infringement lawsuit

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that VHT, Inc. brought against Zillow during the Policy period (“the VHT Action”). (See

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9th Cir. Mem. Op. at 2-5.) Accordingly, the court VACATES the portion of its April 13,

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2017, order concluding that the Policy provides no coverage for the VHT Action. (See

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4/13/17 Order at 9-21.) The court also VACATES the portion of the judgment awarding

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Plaintiff National Union Fire Insurance Company of Pittsburgh, Pa. (“National Union”)

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judgment on the pleadings. (See Judgment (Dkt. # 26).) The Ninth Circuit further

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remanded “for consideration of any admissible extrinsic evidence of the parties’ intent to

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resolve the ambiguity in the coverage provision.” (See 9th Cir. Mem. Op. at 5.)

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The Ninth Circuit affirmed the court’s dismissal of Zillow’s breach-of-contract

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counterclaim but reversed the court’s decision denying Zillow leave to amend its

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counterclaim. (See 9th Cir. Op. at 5-7.) The Ninth Circuit remanded for the court to

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“reconsider whether amendment is appropriate.” (Id. at 7.) Accordingly, the court

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VACATES the portion of its April 13, 2017, order denying Zillow leave to amend its

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counterclaim (see Order at 21-22) and ORDERS Zillow to file an amended counterclaim,

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if appropriate, within 20 days of the date of this order. If Zillow fails to timely file an

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amended counterclaim, the court may dismiss Zillow’s counterclaim with prejudice and

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without further notice. Because the court grants Zillow an opportunity to amend its

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counterclaim, the court also VACATES the portion of the judgment dismissing Zillow’s

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counterclaim. (See Judgment.)

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ORDER - 2

Case 2:16-cv-01461-JLR Document 37 Filed 04/17/20 Page 3 of 3

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Finally, the court also ORDERS the parties to file, within 14 days of the filing date

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of this order, a joint status report proposing how the court should proceed on remand.

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The parties should attempt to agree in good faith on a unified approach. If they cannot so

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agree, they may outline their disparate suggestions in the joint status report.

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Dated this 17th day of April, 2020.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 3