Frost v. Northern Insurance Company of New York, No. 6:2009cv01276 - Document 20 (D. Or. 2011)
Court Description: Opinion and Order. Defendant's Motion for Summary Judgment on Plaintiff's Claim and LR 7.1 Certification 13 is granted. Signed on 02/13/2011 by Chief Judge Ann L. Aiken. (lg)
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Frost v. Northern Insurance Company of New York Doc. 20 FlLEItl1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MICHAEL L. FROST, PIa C iff, . No. 09-1276-AA OPINION AND ORDER v. NORTHERN INSURANCE COMPANY OF NEW YORK, Defendant. Michael J. Vial Vi Fotheringham 7000 S.W. Varns Street Portland, Oregon 97223-8006 Attorneys for plaintiff Thomas A. Gordon Robert Spajic Gordon & Polscer, LLC Suite 650 9755 S.W. Barnes Portland, Oregon 97225 Attorneys for fendant AIKEN, Chief Judge: P iff filed suit nst in state court seeking 1 - OPINION AND ORDER Dockets.Justia.com to recover against insurance defendant's 742.031. proceeds insured. pursuant See to Or. a judgment Rev. obtained §§ Stat. 18.352, Defendant removed this action to federal court and now moves for summary judgment. Defendant argues that plaintiff fails to establish that the damages for which recovery is sought occurred during the insurance policy period. For the reasons set forth below, defendant's motion is granted. FACTS Plaintiff is the owner of a floating home which is semi permanently docked at the Janzen Beach Marina on the Colombia River in Portland, Oregon. Defendant Northern Insurance Company of New York issued a general commercial liability policy (policy) to West Coast Resurfacing, LLC (West Coast), commencing on August 11, 2004. On October 26, 2004, defendant issued a Notice of Cancellation of the policy as premium. a of West Coast's failure to pay its. The policy was cancelled effective November 13, 2004. On October 27, West result Coast. The 2004, plaintiff entered into a contract with contract called for West Coast to install a topping system on an exterior deck of plaintiff's floating home. West Coast commenced and completed the work on or about November 6, 2004. In late 2005 and early 2006, plaintiff began to observe water leaks in the ceiling of his floating home. Eventually, dry rot, mold, fungi, water staining, elevated moisture levels and building material deterioration 2 - OPINION AND ORDER were discovered throughout the deck structure and the ceiling, wall assemblies and floor coverings of living areas directly below the deck. On or about July 5, Coast 2007, plaintiff filed suit against West in Mul tnomah County alleging that West Coast negligently caused the water intrusion and water damage through the following faulty workmanship: a) using the Elite-Crete deck topping compound for an application not intended by its manufacturer; b) improperly integrating the deck topping compound with other building components; c) improperly sealing the deck topping compound. Def. ' s Ex. 4, p. 3. In a first amended complaint filed July 18, 2008, plaintiff also alleged that West Coast's "[aJpplication of the deck topping compound damaged or otherwise compromised the existing waterproof deck coating." Plaintiff's Def.'s Ex. 8, p. 4. suit against West Coast sought damages in the amount of $82,540 for the cost of repairs and diminished value of the floa~ing home incurred because of the water damage and water intrusion, the reasonable value of plaintiff's efforts to mitigate the water intrusion and water damage, and the reasonable value of plaintiff's lost use. Def.'s Ex. 8, pp. 6-7. West Coast notified defendant of the suit and tendered a claim for defense and indemnity to defendant. Defendant denied its indemnity obligation and denied West Coast's tender of defense. In September 2007, West Coast answered plaintiff's complaint and alleged a cross-claim against defendant for failure to defend 3 - OPINION AND ORDER and indemni West Coast. answer and 2. p~ Defendant filed an De f . 's Ex. 10, p. 4. ed West Coast's cross-cIa On or June 18, 2008, West Coast confessed judgment on plaintiff I s claims in the costs and attorney fees. On Def.'s Ex. 9, insurance which inc Def. 's Ex. 11. 29, r S amount of $90,512.85, 2009, pIa iff filed suit recover to from defendant. STANDARD OF REVIEW Summary judgment discovery disclosure materials on that the pleadings, , and any affidavits show is no genuine issue as to any material fact and movant is ent P. "if is led to judgment as a matter of law." 56(c). materiality substant of a ct 626, 630 is Fed. R. determined by law on the issue. 809 F.2d authenti y of a dispute is dete such a that reasonable nonmoving party. jury (9th Cir. 1987). by whether the evi could return Anderson v. Liberty Lobby, a verdict Inc., is for 477 U.S. 242, 248 (1986). The moving party has the a genu of establishing issue of material U.S. 317, 323 (1986). genuine issue of material fact, t t absence of Celotex Corp. v. Catrett, 477 If the moving and identify th~ rty shows the absence of a nonmoving party must go yond s which show a genuine issue at 324. rules of construct 4 - OPINION AND ORDER apply to evaluating s judgment motions: 1) all reasonable doubts as to genuine· issues of mater 1 fact s existence of be resolved the ng party; and 2) all inferences to be drawn from the underlying s must be viewed in the Ii party. T.W. Elec., most favorable to the nonmoving 809 F.2d at 630. DISCUSSION De presents moves no set summa of facts showing the damages recovery is sought occurred within the poli In di for has burden of condi t proving s of coverage, that the policy est the excludes 211 Or. App. 485, 509, 156 P.3d 105 (2007). of which riod. coverage. shoes iff s involving insurance policies, the insured has ini tial burden of establish r t pIa judgment, arguing the ured ishing coverage. and Here, plaintiff stands therefore See Or. Rev. Stat. 299 Or. (1985). I find provides coverage must 155, meet § the the burden of 742.031; 165-66, 700 P.2d 236 plaintiff fails to establish that the policy for damages awarded to plaintif in the underlying state court jUdgment. PIa iff judgment in t icy. relies primarily on underlying action West Coast's confession establish coverage under the Plaintiff maintains that defendant is bound and facts set forth complaint at his first amended complaint, the time judgment aga 5 - OPINION AND ORDER of West Coast was the cIa ive ined. However, tender of "in given defendant West .Coast's not fense, I question whether West Coast and defendant were ty" or whether defendant, that aintiff is dif con the rent issue from the of West Coast's li stion of cove policy. li ty to under 123 Or. App. 558, 562-63, 860 P.2d 864 bound by facts (1993). Regardless, lying the even if defendant was rst amended complaint, those facts do not by themselves establi the on ssion of judgment is bi under the terms of cove icy. The relevant language of the pol cy provides: This insurance appl ge" only if: s to " ly inj " and "Property (1) The "bodily inj ury" or "property damage" is caused by an "occurrence" that ta s place in the "coverage territory"; and (2) "bodily inj ury" or " during the icy od. Def.'s Ex. 12, meaning of the p. 1 (emphasis icy, pla damage for which recove wi cove added). under iff must establi that ing the policy period. 341 Or. 642, 650, the plain prope was caused by an "occurrence" is s territory, and most importantly, damage occurred Indem. Co., y damage" occurs t the property Holloway v. Republic 147 P.3d 329 (2006) (if the pol not define the term or phrase in question, courts look to its in ng} . underl 6 ~ ng amended compl OPINION AND ORDER nt aga does not establish such facts. Rather, complaint merely asserts negligen~ Coast was West work on plaintiff's f during October and 2004, and that pIa r home iff scovered leaks and the result water damage in late 2005 and ear Such facts do not e i sought occurred period. To t 2006. that the damages for which recovery is the policy or to November 13, 2004, the end extent plaintiff relies on the aIle Coast "damaged or desk coating," rwise compromised the s awarded to t West waterproof ion does not establish 1 damages t iff occurred during the policy period. Accordingly, plainti~f cannot complaint t to de rest defendant's summary judgment motion, on the allegations in his West Coast but must set forth underlying ific facts showing that West Coast was entitled to coverage r policy. Fed. R. Civ. P. 56(e); see Lu-'an v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990) a general al ion). a declaration asserts to Ii y ly 1 c In an attempt to do so, a building science t houseboat imprope (courts cannot presume speci the occurred s to support a iff submits , Mark Lawless, plaintiff's waterproof in November the deck topping. who 2004 See Even if Lawless's declaration is conside when West Coast ess Decl., p. 2. by the court, 1 emphasizes that plaintiff led to disclose Mr. Lawless as an or disclose his rt rt. If so, his declaration Id be stricken. Regardless, I find that the Lawless Declaration does not raise a issue of material fact to clude summary judgment in of fendant. 7 - OPINION AND ORDER plaintiff seeks recovery of damages awarded for the resulting water damages and water intrusion, membrane. Regardless of facts presented by not for damages to the wate alleged damage to the deck topping, no iff suggest that the result a damage of water rusion and water damage occurred wit policy period on November 13, 2004 - particularly when it is iff observed no water intrusion until undisputed that 2005. I would to assume, based on speculative probabil that such within one week after West Coast's workmanship_ court cannot take such a leap. Accordingly, aintiff fails to establish that which he see s for occurred during the policy pe CONCLUSION For t reasons Summary set forth above, de (doc. 13) is GRANTED. IT IS SO ORDERED. Dated this /3 day of February, 2011. Unit~d 8 OPINION AND ORDER Ann Aiken States District 's Motion for
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