Evergreen Estates Condominium Association of Apartment Owners v. Admiral Insurance Company et al

Filing 22

ORDER denying dft Assoc International Insurance Co's 12 Motion to Dismiss by Judge Ricardo S Martinez.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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EVERGREEN ESTATES CONDOMINIUM
ASSOCIATION OF APARTMENT
OWNERS, a Washington non-profit
corporation,

Case No. C16-1577RSM
ORDER DENYING DEFENDANT’S
MOTION TO DISMISS

Plaintiff,
v.
ADMIRAL INSURANCE COMPANY, a
Delaware corporation; ASSOCIATED
INTERNATIONAL INSURANCE
COMPANY, an Illinois corporation;
MARKEL INSURANCE COMPANY, a
Virginia corporation; and DOE INSURANCE
COMPANIES 1-10,
Defendants.
This matter comes before the Court on Defendant Associated International Insurance

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Company (“AIIC”)’s Motion to Dismiss Without Prejudice, Dkt. #12. Although captioned a

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motion to dismiss, AIIC’s Motion is brought under the summary judgment standard and the

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Court will interpret it as a motion for summary judgment. See Dkt. #12 at 4. AIIC brings the

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instant Motion because Plaintiff Evergreen Estates Condominium Association (“Evergreen”)

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“filed this lawsuit in the midst of the claim investigation undertaken by [AIIC] before AIIC’s

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ORDER DENYING DEFENDANT’S MOTION TO DISMISS - 1

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investigation was completed.” Id. at 1. AIIC requests the Court “dismiss without prejudice

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Evergreen’s complaint against it until Evergreen complies with the required conditions

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precedent to suit.” Id. at 1-2.

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As authority for the relief it is seeking, AIIC cites to Staples v. Allstate Ins. Co., 176

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Wn.2d 404, 295 P.3d 201 (2013) and Downie v. State Farm Fire & Cas. Co., 84 Wn. App. 577,

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929 P.2d 484 (1997). In Downie, the trial court found that the plaintiff’s failure to submit to an

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EUO, a condition precedent to filing suit, warranted dismissal of the case without prejudice on

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summary judgment. 84 Wn. App. at 581. In Staples, the court looked at questions of fact

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related to the materiality of the insurer defendant’s requested Examination Under Oath

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(“EUO”), whether the insured substantially complied with a requested EUO, and the prejudice

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caused by the insured’s failure to participate in that EUO. Staples held in part that “if an EUO

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is not material to the investigation or handling of a claim, an insurer cannot demand it,”

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overruling Downie.

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176 Wn.2d at 414.

The court found summary judgment was not

appropriate due to issues of fact as to prejudice, materiality, and substantial compliance.

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The Court has reviewed the facts alleged in this matter by both parties and has

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determined that questions of fact exist precluding summary judgment. Evergreen has credibly

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argued such questions related to the issues of materiality and substantial compliance. See Dkt.

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#19 at 13-18. The Court cannot conclude, as a matter of law, that the requested EUO is

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material given the information already provided to AIIC or otherwise available for AIIC to

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investigate short of requesting this EUO. The Court also cannot conclude, as a matter of law,

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that Evergreen has failed to substantially comply with the EUO request. Even if Evergreen has

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failed to substantially comply with a required condition precedent to suit, the relief requested

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by AIIC—dismissal—is not preferred by the Court. Based on the information before it, the

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ORDER DENYING DEFENDANT’S MOTION TO DISMISS - 2

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Court believes the parties have not exhausted all reasonable efforts to provide AIIC with the
information it is requesting.
Having reviewed the relevant briefing, the declarations and exhibits attached thereto,
and the remainder of the record, the Court hereby finds and ORDERS that AIIC’s Motion to

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Dismiss Without Prejudice, Dkt. #12, is DENIED.

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DATED this 3 day of April, 2017.

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A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER DENYING DEFENDANT’S MOTION TO DISMISS - 3