Camper v. State Farm Fire and Casualty Company et al

Filing 43

ORDER denying 17 Motion for Partial Summary Judgment; granting 21 Motion for Summary Judgment. Signed by Judge Benjamin H. Settle. (MGC)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C18-5486 BHS

VANESSA CAMPER,
Plaintiff,

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v.
STATE FARM FIRE AND CASUALTY
COMPANY and ALLSTATE
INSURANCE COMPANY,

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ORDER DENYING STATE
FARM’S MOTION FOR PARTIAL
SUMMARY JUDGMENT AND
GRANTING ALLSTATE’S
MOTION FOR SUMMARY
JUDGMENT

Defendants.

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This matter comes before the Court on Defendant State Farm Fire and Casualty
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Company’s (“State Farm”) motion for partial summary judgment re: coverage, Dkt. 17,
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and Defendant Allstate Insurance Company’s (“Allstate”) motion for summary judgment
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re: coverage, Dkt. 21. The Court has considered the pleadings filed in support of and in
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opposition to the motions and the remainder of the file and hereby denies State Farm’s
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motion and grants Allstate’s motion for the reasons stated herein.
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I.

PROCEDURAL HISTORY

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On May 16, 2018, Plaintiff Vanessa Camper (“Camper”) filed a complaint in
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Pierce County Superior Court for the State of Washington against State Farm and
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ORDER - 1

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Allstate. Dkt. 1-2. Camper alleges that the insurance companies are liable for all

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damages associated with the flooding of her house on May 17, 2017. Id.

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On June 14, 2018, Allstate removed the matter to this Court. Dkt. 1.

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On June 19, 2019, State Farm and Allstate filed the instant motions for summary

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judgment. Dkts. 17, 21. On July 8, 2019, Camper responded. Dkts. 23, 27. On July 12,

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2019, State Farm and Allstate replied. Dkts. 28, 30.

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II. FACTUAL BACKGROUND

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On the morning of May 17, 2017, Camper walked down the stairs of her home to

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the lower level and “walked right into water.” Dkt. 18-1 at 4. She could not find where

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the water was coming from, so she sought help from her neighbor. Dkt. 25, Declaration

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of Vanessa Camper (“Camper Decl.”), ¶¶ 5–6. They discovered that water was flowing

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down her driveway and into her garage. Id. ¶ 7. At some point, Camper discovered that

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the water was emanating from a broken pipe between the main water connection and her

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house. Camper contacted Allstate and Washington Restorer, a home restoration

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company. Id. ¶ 8. Washington Restorer sent its employee Maggie King (“King”) to

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Camper’s house to appraise the damage and develop a remediation plan. Dkt. 26, ¶ 2.

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When King arrived at the house, the water had been turned off, but the source of

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the leak had not been identified. Id. ¶ 6. King asserts that the water heater was damaged

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and the electrical wiring in the house had been compromised by the flooding. Id. King

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opines that the house was uninhabitable because (1) there was no water, (2) the electrical

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system was compromised, (3) asbestos insulation had been damaged and needed to be

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removed, and (4) mold had started to form. Id. ¶ 7.

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Camper submitted the remediation plan and construction bids to Allstate, but

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Allstate denied coverage. Several weeks after the incident, Camper discovered that she

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also had a homeowner’s policy with State Farm. Camper Decl., ¶ 13. Camper submitted

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a claim, and State Farm assigned adjustor Fred Long (“Long”) to the claim. Id. Initially,

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State Farm denied coverage, but it eventually provided some coverage for the damage.

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Id. ¶ 15. Although King told Camper that the home was uninhabitable, State Farm

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refused to compensate Camper for substitute housing. Id. ¶ 16. Camper claims that Long

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would not authorize remedial work until Camper paid to fix the broken pipe. Id. In

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September, Camper obtained funds to pay for the pipe repair. She then hired DrainTech

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Northwest to excavate and repair the water line. Id., Exh. A.
On the date of the loss, Camper had a homeowner’s insurance policy with State

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Farm. Dkt. 18-3. The relevant parts of the policy for the purposes of this motion are (1)

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the losses not insured provision and (2) the mitigation of losses provision. In the first

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provision, the policy states that State Farm will not cover loss to property that is caused

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by “wear, tear, marring, scratching, deterioration, inherent vice, latent defect or

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mechanical breakdown” or “mold, fungus or wet or dry rot.” Dkt. 19-1 at 8. The

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provision also states that State Farm does “not insure under any coverage for any loss

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consisting of the items” listed above. Id.

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Regarding the mitigation of losses provision, the policy states an insured’s duties

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after a loss. Included in those duties is the duty to give immediate notice to State Farm

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and the duty to protect the property from further damage or loss. Id. at 9.

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On the date of the loss, Camper had a homeowner’s policy with Allstate. Relevant

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to the instant motion, the policy covered losses resulting from a sudden and accidental

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escape of water or steam from a plumbing system within the dwelling. Dkt. 22-2 at 24–

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25. The policy, however, excluded losses resulting from “[w]ater or any other substance

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on or below the surface of the ground, regardless of its source. This includes water or any

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other substance which exerts pressure on, or flows, seeps or leaks through any part of the

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residence premises.” Id. at 23.

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III. DISCUSSION
A.

Summary Judgment Standard
Summary judgment is proper only if the pleadings, the discovery and disclosure

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materials on file, and any affidavits show that there is no genuine issue as to any material

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fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

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The moving party is entitled to judgment as a matter of law when the nonmoving party

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fails to make a sufficient showing on an essential element of a claim in the case on which

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the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

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323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,

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could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

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present specific, significant probative evidence, not simply “some metaphysical doubt”).

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See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists

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if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

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jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

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626, 630 (9th Cir. 1987).

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The determination of the existence of a material fact is often a close question. The

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Court must consider the substantive evidentiary burden that the nonmoving party must

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meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson, 477

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U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

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issues of controversy in favor of the nonmoving party only when the facts specifically

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attested by that party contradict facts specifically attested by the moving party. The

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nonmoving party may not merely state that it will discredit the moving party’s evidence

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at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

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Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

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nonspecific statements in affidavits are not sufficient, and missing facts will not be

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presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990).

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B.

Insurance Contracts

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“A determination of coverage involves two steps: first, ‘[t]he insured must show

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the loss falls within the scope of the policy’s insured losses.’” Moeller v. Farmers Ins.

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Co. of Wash., 173 Wn.2d 264, 271–72 (2011) (quoting McDonald v. State Farm Fire &

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Cas. Co., 119 Wn.2d 724, 731 (1992)). “Then, in order to avoid coverage, the insurer

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must ‘show the loss is excluded by specific policy language.’” Id. at 272 (quoting

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McDonald, 119 Wn.2d at 731).

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C.

State Farm’s Motion
State Farm moves for judgment as a matter of law on four issues as follows: (1)

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the cost of repairing the underground water pipe that caused the flood; (2) restoration

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expenses related to mold; (3) expenses related to temporary housing; and (4) any increase

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mitigation or repair costs resulting from Camper’s alleged failure to timely mitigate the

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loss.

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1.

Underground Pipe

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State Farm argues in a four-sentence conclusory fashion that the policy excludes

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coverage for damages to the waterline itself based on the exclusion for latent defects or

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defects in the material used in construction. Dkt. 17 at 11. In a similar conclusory

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fashion, Camper argues that State Farm “has submitted no evidence to identify what

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caused the water pipe to break and discharge water” and that “[i]t makes no sense that the

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policy would provide coverage for damage caused by the ‘sudden and accidental

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discharge of water from a plumbing system’ yet have an exception for the cost of fixing

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the plumbing to prevent further discharge.” Dkt. 23 at 9 (citing a coverage provision in

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the policy). State Farm replies that Camper “has identified no cause of the pipe failure

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which could be covered.” Dkt. 30 at 4. To recap, State Farm moved for judgment based

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on the application of an exclusion and then shifted its position by arguing for the first

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time in reply that Camper has failed to meet her burden to establish coverage. The Court

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strikes the latter argument regarding coverage because it is presented for the first time in

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a reply. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court

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need not consider arguments raised for the first time in a reply brief.”). Regarding the

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application of the exclusion, State Farm fails to establish that no material facts exist or

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that no reasonable juror could find other than for State Farm. Calderone v. United States,

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799 F.2d 254, 259 (6th Cir. 1986) (“where the moving party has the burden—the plaintiff

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on a claim for relief or the defendant on an affirmative defense— his showing must be

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sufficient for the court to hold that no reasonable trier of fact could find other than for

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the moving party.”). Therefore, the Court denies State Farm’s motion on this issue.

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2.

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State Farm moves for judgment on Camper’s claims for the repair costs of mold

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Mold and Additional Living Expenses

and for additional living expenses. Dkt. 17 at 11–13. However, both of these arguments

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are based on the conclusion that the broken water pipe is an excluded peril. See, e.g.,

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Dkt. 17 at 13 (“the mold was also caused by the failed water line.”). State Farm has

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failed to establish that the broken water line is subject to an exclusion and therefore the

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Court denies the motion as to the mold and the additional living expenses as well.

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3.

Failure to Mitigate

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State Farm again argues in conclusory fashion that it is not responsible for the

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“increased costs of mitigation and repair” because Camper failed to timely notify State

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Farm of the loss. Dkt. 17 at 13–14. Even if the Court agreed with State Farm that

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Camper failed to timely notify it of the loss, the Court declines to grant such a general

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request to preclude “increased costs of mitigation and repair.” State Farm fails to

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articulate what it considers acceptable costs as opposed to “increased costs” and

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essentially asks the Court to sua sponte determine which costs are which. At the very

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least, State Farm has failed to show that it is entitled to judgment on this issue or that no

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material questions of fact exist. Therefore, the Court denies State Farm’s motion.

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D.

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Allstate’s Motion
Allstate argues that the policy provides no coverage for damages resulting from

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exterior water entering Camper’s home. Dkt. 21 at 6–7. Allstate’s policy excludes

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coverage for “[w]ater or any other substance on or below the surface of the ground,

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regardless of its source. This includes water or any other substance which exerts pressure

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on, or flows, seeps or leaks through any part of the residence premises.” Dkt. 22-2 at 23.

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Although that language is clear, Camper argues that the policy is ambiguous because it

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provides coverage for a “sudden and accidental escape of water or steam from a

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plumbing system within your dwelling” and “dwelling” is defined as “building structure

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with a roof and walls, where you reside, and which is principally used as a private

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residence.” Dkt. 27 at 4–5. Camper argues that “the plumbing system, including its

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intake pipes are an essential part of the dwelling structure” because “[y]ou cannot have a

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house without water pipes bringing water into the house.” Id. at 5. Camper has failed to

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establish any ambiguity in the policy language. To establish an ambiguity, Camper must

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show that some language “is fairly susceptible to two different but reasonable

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interpretations.” Ross v. State Farm Mut. Auto. Ins. Co., 132 Wn.2d 507, 515 (1997)

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(quoting Transcontinental Ins. Co. v. Washington Public Utilities Districts’ Utility

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System, 111 Wn.2d 452, 456–57 (1988)). In short, Camper’s proposed interpretation of

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dwelling is not reasonable. While the great majority of modern homes have indoor

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plumbing, Camper has failed to establish that “dwelling” necessarily includes the means

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for providing the structure with modern utilities. Therefore, the Court grants Allstate’s

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motion because the policy is unambiguous and excludes coverage for damages caused by

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water that leaks through the exterior of the residence.

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IV. ORDER
Therefore, it is hereby ORDERED that State Farm’s motion for partial summary

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judgment re: coverage, Dkt. 17, is DENIED and Allstate’s motion for summary

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judgment re: coverage, Dkt. 21, is GRANTED.

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Dated this 9th day of September, 2019.

A

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BENJAMIN H. SETTLE
United States District Judge

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