Moore v. Allstate Indem. Co., C20-5874-JCC-JRC

CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)
Writing for the CourtJohn C. Coughenour UNITED STATES DISTRICT JUDGE
Docket NumberC20-5874-JCC-JRC
Decision Date21 September 2021

DUANE MOORE, Plaintiff,


No. C20-5874-JCC-JRC

United States District Court, W.D. Washington, Seattle

September 21, 2021



This matter comes before the Court on Defendant Allstate Indemnity Company's Objections (Dkt. No. 42) to the Report and Recommendation (“R&R”) of the Honorable J. Richard Creatura, U.S. Magistrate Judge, (Dkt. No. 41). Having thoroughly considered the R&R, the parties' briefing, and the relevant record, the Court hereby OVERRULES Allstate's objections, ADOPTS the R&R, and thus DENIES the motion for summary judgment.


On August 16, 2019, a fire destroyed a residential property (“Property”) owned by Plaintiff Duane Moore. (See Dkt. No. 27-4 at 2, 6-7.) At issue is what caused the fire: Dr. Moore's policy with Allstate insures the Property for “sudden and accidental” loss, but it excludes coverage for losses resulting from vandalism. (Dkt. No. 29-1 at 17, 24, 28.)

Available evidence suggests the fire began in the Property's basement, in a storage closet under a stairway. (Dkt. No. 28 at 2-3.) Various people have weighed in with various degrees of confidence about what did or did not cause the fire, or whether finding the cause is even possible.

The Olympia Fire Department's incident report says the cause of ignition was “undetermined after investigation.” (Dkt. Nos. 27-4 at 6, 27-5 at 3.) Allstate's claims investigator writes that the fire “appears to be due to an electrical failure but [there is] no way to prove this.” (Dkt. No. 34-1.) Dale Mann, Allstate's fire investigation expert, [1] rules out weather, nature, electrical malfunction, or other “non-human accidental cause[s]” as potential culprits. (Dkt. No. 28 at 5-6.) Having eliminated those candidates, and because he found the remnants of a gasoline container, a stack of magazines, and some boxes near the suspected fire origin, along with an open basement window, Mann thinks it is more likely than not that a trespasser set the fire deliberately. (Id. at 6-7.) Mann ultimately concludes, however, that under industry standards for fire investigations, “the specific cause for this fire is undetermined.” (Dkt. No. 28-2 at 26.)

Plaintiff's fire investigation expert, John Lentini, also concludes the cause is “undetermined.” (Dkt. No. 35 at 17.) Plaintiff's mechanical engineering expert, Gerard Schaefer, concurs. (Dkt. No. 36 at 15.)


A. Legal Standard

The Court reviews de novo any part of the magistrate judge's report and recommendation that a party specifically objects to in writing. Fed.R.Civ.P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). “[T]he court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

Summary judgment is proper if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court views facts in the light most favorable to the nonmoving party and resolves ambiguity in that party's favor, but it must not make credibility determinations or weigh evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 255 (1986); Bator v. Hawaii, 39 F.3d 1021, 1026 (9th Cir. 1994). The moving party has the initial burden to show the lack of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that party succeeds, the burden shifts to the nonmoving party to demonstrate there is an issue for trial. See Celotex, 477 U.S. at 323-24. If the movant fails, the nonmovant need not present any evidence, even if it has the ultimate burden at trial. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000).

B. Insurance Coverage

Dr. Moore's policy with Allstate covers “sudden and accidental direct physical loss” to the Property. (Dkt. No. 29-1 at 28.) But the Policy does not cover losses “caused by fire resulting from vandalism” if the Property “is vacant or unoccupied for more than 90 consecutive days immediately prior to the vandalism.” (Id. at 17.)

Under Washington law, an insured must show that the policy covers the loss, and the burden then shifts to the insurer to show that an exclusion bars coverage. Wright v. Safeco Ins. Co. of Am., 109 P.3d 1, 5 (Wash.Ct.App. 2004). Thus, Dr. Moore will have the burden at trial to show that the fire was a “sudden and accidental direct physical loss.” (Dkt. No. 42 at 4 (citing Eagle W. Ins. Co. v. SAT, 2400, LLC, 187 F.Supp.3d 1231, 1235 (W.D. Wash. 2016).) But as the moving party on summary judgment, it is Allstate who must establish...

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