Ohio Security Insurance Company v. Axis Insurance Company
Filing
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ORDER by Judge Benjamin H. Settle Certifying Question to the Washington State Supreme Court. Case stayed and motions removed from docket while stayed: 19 MOTION for Summary Judgment filed by Axis Insurance Company, 22 MOTION for Summary Judgment filed by Ohio Security Insurance Company. (TG) Modified on 6/20/2017: documents mailed to WA State Supreme Court via certified mail.(CMG).
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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OHIO SECURITY INSURANCE
COMPANY,
Plaintiff,
v.
CASE NO. C15-5698 BHS
ORDER CERTIFYING QUESTION
TO THE WASHINGTON STATE
SUPREME COURT
AXIS INSURANCE COMPANY,
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Defendant.
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This matter comes before the Court on the cross-motions for summary judgment
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of Plaintiff Ohio Security Insurance Company (“Ohio Security”) and Defendant Axis
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Insurance Company (“Axis”). Dkts. 19, 22. The procedural history and factual
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background of this case are set forth in large part in the Court’s previous order on the
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present cross-motions for summary judgment. See Dkt. 35.
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On June 1, 2017, the Court held oral argument on the outstanding issues of the
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“selective tender” rule and the statute of limitations. Dkt. 43. On June 7, 2017, the Court
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issued an order stating that it would certify the statute of limitations question to the
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Supreme Court of Washington State. Dkt. 44. The Court briefly summarizes the statute of
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limitations question as follows:
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For the reasons stated in its previous order, the Court is inclined to find that RCW
4.28.080(7)(a) and RCW 48.05.200(1) designate service through the Washington State
ORDER - 1
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Insurance Commissioner as an exclusive means of service on an authorized foreign
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insurer operating in Washington State. See Dkt. 35. If this is indeed the case, Ohio
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Security’s claim for equitable contribution is barred by the applicable statute of
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limitations as to certain payments made by Ohio Security for the benefit of the insured.
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However, it appears that such a ruling would contradict the holdings of two on-point
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decisions from the Washington State Courts of Appeal regarding the available methods
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for service on alien insurers, regardless of the fact that those decisions do not appear to
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address the exclusivity clause of RCW 48.05.200.
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On June 7, 2017, the Court entered an order offering a proposed question for
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certification and requesting that the parties submit additional briefing on whether the
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question should be otherwise stated. Dkt. 44. The parties have since submitted
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supplemental briefs stipulating that the Court’s proposed question accurately reflects the
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question to be answered. Dkts. 45, 46. Therefore, the following question is hereby
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CERTIFIED to the Washington State Supreme Court:
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Do RCW 4.28.080(7)(a), RCW 48.02.200, and RCW 48.05.200 establish
service through the Washington State Insurance Commissioner as a
uniform and exclusive means of service for authorized foreign or alien
insurers in Washington State?
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This Court does not intend its statement of the question to restrict the Washington
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State Supreme Court’s consideration of any issue that it may determine is relevant.
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Should the Washington State Supreme Court decide to consider the certified question, it
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may in its discretion reformulate the question. See Affiliated FM Ins. Co. v. LTK
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Consulting Servs. Inc., 556 F.3d 920, 922 (9th Cir. 2009).
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ORDER - 2
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The Clerk of Court is directed to submit to the Washington State Supreme Court
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certified copies of this order; a copy of the docket in the above-captioned matter; and
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Docket Numbers 1, 1-2, 9, 19–33, 35, 36, 38, 40, 41, 44–46. The record so compiled
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contains all matters in the pending case deemed material for consideration of the question
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certified for answer. In accordance with RAP 16.16(e)(1), which states that “[t]he federal
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court will designate who will file the first brief,” the Court designates Defendant Axis
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Insurance Company as the party who will file the first brief in the Washington State
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Supreme Court on the certified question. The parties are referred to state RAP 16.16 for
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additional information regarding procedures upon review of the certified question. The
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Clerk of the Court shall notify the parties within three days after the above-described
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record is filed in the Washington State Supreme Court.
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The Court STAYS this action (including Dkts. 19 and 22) until the Washington
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State Supreme Court answers the certified question. Of course, nothing in this order
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should be construed to prevent the parties from pursuing the resolution of this case
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through settlement negotiations.
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IT IS SO ORDERED.
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Dated this 20th day of June, 2017.
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BENJAMIN H. SETTLE
United States District Judge
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ORDER - 3
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