Ohio Security Insurance Company v. Axis Insurance Company

Filing 47

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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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 7 8 OHIO SECURITY INSURANCE COMPANY, Plaintiff, v. CASE NO. C15-5698 BHS ORDER CERTIFYING QUESTION TO THE WASHINGTON STATE SUPREME COURT AXIS INSURANCE COMPANY, 9 Defendant. 10 11 This matter comes before the Court on the cross-motions for summary judgment 12 of Plaintiff Ohio Security Insurance Company (“Ohio Security”) and Defendant Axis 13 Insurance Company (“Axis”). Dkts. 19, 22. The procedural history and factual 14 background of this case are set forth in large part in the Court’s previous order on the 15 present cross-motions for summary judgment. See Dkt. 35. 16 On June 1, 2017, the Court held oral argument on the outstanding issues of the 17 “selective tender” rule and the statute of limitations. Dkt. 43. On June 7, 2017, the Court 18 issued an order stating that it would certify the statute of limitations question to the 19 Supreme Court of Washington State. Dkt. 44. The Court briefly summarizes the statute of 20 limitations question as follows: 21 22 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 1 Insurance Commissioner as an exclusive means of service on an authorized foreign 2 insurer operating in Washington State. See Dkt. 35. If this is indeed the case, Ohio 3 Security’s claim for equitable contribution is barred by the applicable statute of 4 limitations as to certain payments made by Ohio Security for the benefit of the insured. 5 However, it appears that such a ruling would contradict the holdings of two on-point 6 decisions from the Washington State Courts of Appeal regarding the available methods 7 for service on alien insurers, regardless of the fact that those decisions do not appear to 8 address the exclusivity clause of RCW 48.05.200. 9 On June 7, 2017, the Court entered an order offering a proposed question for 10 certification and requesting that the parties submit additional briefing on whether the 11 question should be otherwise stated. Dkt. 44. The parties have since submitted 12 supplemental briefs stipulating that the Court’s proposed question accurately reflects the 13 question to be answered. Dkts. 45, 46. Therefore, the following question is hereby 14 CERTIFIED to the Washington State Supreme Court: 15 16 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? 17 This Court does not intend its statement of the question to restrict the Washington 18 State Supreme Court’s consideration of any issue that it may determine is relevant. 19 Should the Washington State Supreme Court decide to consider the certified question, it 20 may in its discretion reformulate the question. See Affiliated FM Ins. Co. v. LTK 21 Consulting Servs. Inc., 556 F.3d 920, 922 (9th Cir. 2009). 22 ORDER - 2 1 The Clerk of Court is directed to submit to the Washington State Supreme Court 2 certified copies of this order; a copy of the docket in the above-captioned matter; and 3 Docket Numbers 1, 1-2, 9, 19–33, 35, 36, 38, 40, 41, 44–46. The record so compiled 4 contains all matters in the pending case deemed material for consideration of the question 5 certified for answer. In accordance with RAP 16.16(e)(1), which states that “[t]he federal 6 court will designate who will file the first brief,” the Court designates Defendant Axis 7 Insurance Company as the party who will file the first brief in the Washington State 8 Supreme Court on the certified question. The parties are referred to state RAP 16.16 for 9 additional information regarding procedures upon review of the certified question. The 10 Clerk of the Court shall notify the parties within three days after the above-described 11 record is filed in the Washington State Supreme Court. 12 The Court STAYS this action (including Dkts. 19 and 22) until the Washington 13 State Supreme Court answers the certified question. Of course, nothing in this order 14 should be construed to prevent the parties from pursuing the resolution of this case 15 through settlement negotiations. 16 IT IS SO ORDERED. 17 Dated this 20th day of June, 2017. A 18 19 BENJAMIN H. SETTLE United States District Judge 20 21 22 ORDER - 3

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