Certain Underwriters at Lloyd's London v. The Vision AFH, LLC

• Decision Date: 30 November 2022
• Docket Number: 21-36035
• Parties: CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NO. WN144245, Plaintiff-Appellee, v. THE VISION AFH, LLC, a Washington Limited Liability Company; ESTHER IRUNGU, Defendants, and FREEDOM NITSCHKE, as Personal Representative of the estate of Timothy L Nitschke, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NO. WN144245, Plaintiff-Appellee,
v.
THE VISION AFH, LLC, a Washington Limited Liability Company; ESTHER IRUNGU, Defendants,

and FREEDOM NITSCHKE, as Personal Representative of the estate of Timothy L Nitschke, Defendant-Appellant.

No. 21-36035

United States Court of Appeals, Ninth Circuit

November 30, 2022

NOT FOR PUBLICATION

Argued and Submitted October 18, 2022 Seattle, Washington

Appeal from the United States District Court for the Western District of Washington D.C. No. 3:20-cv-05662-TLF Theresa Lauren Fricke, Magistrate Judge, Presiding

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Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges.

MEMORANDUM^[*]

This insurance dispute arises out of the intentional assault of the decedent, Timothy Nitschke, by a fellow resident of The Vision Adult Family Home (Vision), a senior adult care facility in Lakewood, Washington. Vision had a general and professional liability insurance policy issued by Underwriters at Lloyd's, London (Underwriters) in effect at the time of the incident. Underwriters maintained that the insurance policy did not cover the assault because it contained a physical-abuse exclusion that removed from coverage intentional physical contact resulting in injury. The representative of Nitschke's estate, Freedom Nitschke (Freedom), argued that the exclusion violates Washington public policy and moved the district court to certify the public policy question to the Washington Supreme Court.

The district court granted Underwriters' motion for summary judgment and denied certification. Freedom appeals both decisions and asks this court to certify the public policy question. We have jurisdiction under 28 U.S.C. § 1291 and review de novo the district court's grant of summary judgment. Adir Int'l, LLC v. Starr Indem. & Liab. Co., 994 F.3d 1032, 1038 (9th Cir. 2021). We review the district court's denial of certification for abuse of discretion. Thompson v. Paul, 547 F.3d 1055, 1059 (9th Cir. 2008). We affirm and also deny certification.

1. Physical-Abuse Exclusion. Washington insurers may limit their contractual liability so long as the limitations are not contrary to statute or public

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policy. O.S.T. ex rel. G.T. v. Blue Shield, 181 Wash.2d 691, 702 (2014) (en banc). The parties dispute whether there is an applicable state public policy requiring adult family homes to have insurance coverage to compensate residents injured by the intentional...