Trumbull v. American Security Insurance Company

Filing 33

ORDER granting Defendant's 21 Motion for Partial Summary Judgment signed by Judge Richard A. Jones. (TH)

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THE HONORABLE RICHARD A. JONES
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DONALD TRUMBULL,

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Case No. C17-00125-RAJ

Plaintiff,
ORDER
v.
AMERICAN SECURITY INSURANCE
COMPANY,
Defendant.

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This matter comes before the Court on Defendant American Security Insurance
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Company’s Motion for Partial Summary Judgment. Dkt. # 21. Plaintiff Donald
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Trumbull opposes the Motion. Dkt. # 28. For the reasons that follow, the Court
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GRANTS Defendant’s Motion. Dkt. # 21.
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I.

BACKGROUND

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Plaintiff owns real property at 10210 149th Avenue NE in Granite Falls,
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Washington (the “Property”). Dkt. # 25 at ¶ 1. In January of 2013, the Property was
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raided by law enforcement agents as a result of an illegal marijuana grow operation.
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Id. at ¶ 3. On January 23, 2013, the Department of Justice recorded a lis pendens
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against the Property. Dkt. # 25 Ex. 6. The recording of the lis pendens did not
ORDER - 1

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prohibit Plaintiff from entering the Property. Dkt. # 30 Ex. A. Plaintiff learned of the
raid on February 10, 2013. Id. At that time, Plaintiff was living in Sagle, Idaho. Id. at
¶ 5. After learning of the raid, Plaintiff visited the Property on March 14, 2013, March
21, 2013, and March 22, 2013. Id; Dkt. # 30 Ex. B. While on the Property on March
21 and 22, 2013, Plaintiff documented the damage sustained on the Property with
photographs and video. Dkt. # 30 Ex. B. On March 23, 2013, Plaintiff received a
notification that forfeiture of the Property was being sought in an asset forfeiture
action. Dkt. # 25 Ex. 3. On April 17, 2013, Plaintiff submitted a claim to Defendant
for damages sustained to the Property as a result of the raid. Dkt. # 22 Ex. 1.
Defendant acknowledged the claim and began an investigation. Dkt. # 22 Ex. 2. On
April 24, 2013, Plaintiff met with an insurance adjuster at the Property. After
Defendant completed its investigation, it issued a claim payment of $8,889.46 on May
20, 2013. Dkt. # 22 Ex. 3.
In August of 2013, Plaintiff was advised that the Property had been burglarized
of wiring, copper plumbing, and appliances. Dkt. # 25 at ¶ 12. On August 12, 2013,
Plaintiff submitted a second claim to Defendant related to the theft. Dkt. # 22 Ex. 4.
At that time, Plaintiff again visited the Property to assess the damage. Dkt. # 25 at ¶
12. Defendant acknowledged the claim and performed an investigation. Dkt. # 22 Ex.
5. On August 22, 2013, Defendant issued Plaintiff a claim payment of $19,795.60.
Dkt. # 22 Ex. 6. On or about September 6, 2013, Plaintiff obtained legal counsel.
Plaintiff was advised not to make any changes or repairs to the Property while the
forfeiture proceeding was pending. Dkt. # 25 at ¶¶18, 19. At some point later that
year, Plaintiff’s request for permission to chain and lock the Property’s driveway
entrance was granted. Id. at ¶ 20. During the pendency of the forfeiture proceeding,
Plaintiff was not prohibited from obtaining estimates to repair the Property or from
entering the Property. Dkt. # 30 Ex. A.
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On September 21, 2015, the criminal case related to the illegal marijuana grow
operation on the Property settled and the forfeiture proceeding was terminated. Dkt. #
25 at ¶ 22. On October 22, 2015, the U.S. Attorney’s Office recorded a release of lis
pendens from the Property. Id. at ¶ 23. A couple of months later, Plaintiff retained a
third-party to clean the Property. Dkt. # 25 Ex. 10. Plaintiff was then advised to hire
an insurance specialist to prepare an estimate on the repairs. Dkt. # 25 at ¶ 32. On
April 22, 2016, the insurance specialist, David Zaborowski, completed his repair
estimate of the property. Dkt. # 25 Ex. 16. The estimate came out to $266,044.40.
Dkt. # 28 at 9.
On December 30, 2016, Plaintiff filed this action in Snohomish County
Superior Court. Dkt. # 1-2. On January 27, 2017, Defendant removed this action to
the U.S. District Court of the Western District of Washington. Dkt. # 1. Plaintiff
brings state law claims of insurance bad faith, violation of the Washington Consumer
Protection Act, and violation of the Washington Insurance Fair Conduct Act (“IFCA”).
II.

LEGAL STANDARD

Summary judgment is appropriate if there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Where the moving party will have the burden of proof at trial, it must affirmatively
demonstrate that no reasonable trier of fact could find other than for the moving party.
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue
where the nonmoving party will bear the burden of proof at trial, the moving party can
prevail merely by pointing out to the district court that there is an absence of evidence
to support the non-moving party’s case. Celotex Corp., 477 U.S. at 325. If the
moving party meets the initial burden, the opposing party must set forth specific facts
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showing that there is a genuine issue of fact for trial in order to defeat the motion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court must view the
evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in that party’s favor. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,
150-51 (2000).
However, the court need not, and will not, “scour the record in search of a
genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996);
see also, White v. McDonnel-Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the
court need not “speculate on which portion of the record the nonmoving party relies,
nor is it obliged to wade through and search the entire record for some specific facts
that might support the nonmoving party’s claim”). The opposing party must present
significant and probative evidence to support its claim or defense. Intel Corp. v.
Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
Uncorroborated allegations and “self-serving testimony” will not create a genuine
issue of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th
Cir. 2002); T.W. Elec. Serv. V. Pac Elec. Contractors Ass’n, 809 F. 2d 626, 630 (9th
Cir. 1987).
III.

DISCUSSION

An action for bad faith handling of an insurance claim is a tort subject to a threeyear statute of limitations. RCW 4.16.090; Moratti v. Farmers Ins. Co. of Wash., 162
Wash. App. 495, 502 (2011). The date of accrual arises when a party has a right to apply
to the court for relief. O’Neill v. Farmers Ins. Co. of Wash., 124 Wn. App. 516, 530
(2004). Similarly, IFCA claims are also subject to a three-year statute of limitations.
Ward v. Stonebridge Life Ins. Co., No. C13-5092 RBL, 2013 WL 3155347, at *5 (W.D.
Wash. June 21, 2013), aff’d, 608 F. App'x 487 (9th Cir. 2015). IFCA claims accrue at
the time the insurer extends its allegedly unreasonable settlement offer or unreasonably
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denies coverage. Id. Defendant’s coverage determinations and claim payments to
Plaintiff were issued on May 20, 2013 and August 22, 2013. Plaintiff filed this action
on December 30, 2016, or three years and seven months after his first claim, and three
years and four months after his second claim. Therefore, Plaintiff’s bad faith insurance
and IFCA claims were filed after the statute of limitations expired and are time-barred.
Plaintiff argues that the Court should apply the “discovery rule” exception to his
claims in determining whether they are time-barred. This exception has been applied
by courts to claims where “injured parties do not, or cannot, know they have been
injured.” Shepard v. Holmes, 185 Wash. App. 730, 739 (2014) (internal citations
omitted). “Where the discovery rule applies, a cause of action accrues when the plaintiff,
through the exercise of due diligence, knew or should have known the basis for the cause
of action.” Id. Plaintiff argues that he could not have reasonably been aware of the
present causes of action until April 22, 2016, the day after he obtained a repair estimate
for the Property. Dkt. # 28 at 8. It is undisputed that Plaintiff had access to his property
following the raid and after the alleged theft. It is also undisputed that Plaintiff was not
prohibited from entering the Property or obtaining an estimate for the repairs during the
pendency of the forefeiture proceedings and after the recording of the lis pendens. By
his own admission, Plaintiff entered his property on five occasions prior to the
termination of the forfeiture proceedings and the release of the lis pendens. Had Plaintiff
exercised due diligence, he would have known the basis for his claims at any time after
he received his claim payments. As such, the application of the discovery rule would
not serve to postpone the running of the statute of limitations for Plaintiff’s claims.
Plaintiff further argues that he did not know that there was a discrepancy between
the repair estimate and his claim payments until 2016 because he was following the
advice of counsel. While Plaintiff was advised by counsel not to make any repairs
during the pendency of the forfeiture proceedings, he was not prohibited from obtaining
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a repair estimate. The discovery rule does not apply to toll the statute of limitations
merely because Plaintiff was ignorant of the law. See Retired Pub. Employees Council
of Washington v. State, Dep't of Ret. Sys., 104 Wash. App. 147, 152, 16 P.3d 65, 68
(2001). Plaintiff’s bad faith insurance and IFCA claims were filed after the expiration
of the statute of limitations and are time-barred. Defendant’s motion for summary
judgment of Plaintiff’s bad faith insurance and IFCA claims is GRANTED. Dkt. # 21.
IV.

CONCLUSION

For all the foregoing reasons, the Court GRANTS Defendant’s Motion for
Partial Summary Judgment. Dkt. # 21.

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Dated this 9th day of August, 2018.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER - 6