Pac. Lutheran Univ. v. Certain Underwriters at Lloyd's, London

• Docket Number: 100752-3
• Decision Date: 18 January 2024
• Parties: PACIFIC LUTHERAN UNIVERSITY, a Washington nonprofit corporation; THE UNIVERSITY OF PUGET SOUND, a Washington nonprofit corporation; WHITWORTH UNIVERSITY, a Washington nonprofit corporation; ALBION COLLEGE, a Michigan nonprofit corporation; ALBRIGHT COLLEGE, a Pennsylvania nonprofit corporation; ALMA COLLEGE, a Michigan nonprofit corporation; ARCADIA UNIVERSITY, a Pennsylvania nonprofit corporation; AUGSBURG UNIVERSITY, a Minnesota nonprofit corporation; AUGUSTANA COLLEGE, an Illinois nonprofit corporation; CALIFORNIA LUTHERAN UNIVERSITY, a California nonprofit corporation; CAPITAL UNIVERSITY, an Ohio nonprofit corporation; CARTHAGE COLLEGE, an Illinois not-for-profit corporation; CLAFLIN UNIVERSITY, a South Carolina nonprofit corporation; CONCORDIA COLLEGE CORPORATION, a Minnesota nonprofit corporation; CORNELL COLLEGE, an Iowa nonprofit corporation; DAVIS & ELKINS COLLEGE, INC., a West Virginia C corporation; DENISON UNIVERSITY, an Ohio nonprofit corporation; DEPAUW UNIVERSITY, an Indiana nonprofit corporation; DOMINICAN UNIVERSITY OF CALIFORNIA, a California nonprofit corporation; DREW UNIVERSITY, a New Jersey nonprofit corporation; UNIVERSITY OF EVANSVILLE, an Indiana nonprofit corporation; FLORIDA MEMORIAL UNIVERSITY, a Florida nonprofit corporation FURMAN UNIVERSITY, a South Carolina nonprofit corporation; GAMMON THEOLOGICAL SEMINARY, a Georgia nonprofit corporation; GREENSBORO COLLEGE, a North Carolina nonprofit corporation; GUSTAVUS ADOLPHUS COLLEGE, a Minnesota nonprofit corporation; TRUSTEES OF THE HAMLINE UNIVERSITY OF MINNESOTA, a Minnesota general entity; ILLINOIS WESLEYAN UNIVERSITY, an Illinois nonprofit corporation; KENYON COLLEGE, an Ohio nonprofit corporation; LAKE FOREST COLLEGE, an Illinois nonprofit corporation; UNIVERSITY OF LYNCHBURG, a Virginia nonprofit corporation; LYON COLLEGE, an Arkansas nonprofit corporation; MCKENDREE UNIVERSITY, an Illinois nonprofit corporation; MCMURRY UNIVERSITY, a Texas nonprofit corporation; MILLS COLLEGE, a California nonprofit corporation; MILLSAPS COLLEGE, a Mississippi nonprofit corporation; OHIO NORTHERN UNIVERSITY, an Ohio nonprofit corporation; OHIO WESLEYAN UNIVERSITY, an Ohio nonprofit corporation; PRINCETON THEOLOGICAL SEMINARY, a New Jersey nonprofit corporation; RANDOLPH-MACON ACADEMY, a Virginia nonstock corporation; THE TRUSTEES OF ROANOKE COLLEGE, a Virginia nonprofit corporation; ROLLINS COLLEGE, a Florida nonprofit corporation; ROSE-HULMAN INSTITUTE OF TECHNOLOGY, an Indiana nonprofit corporation; SCHREINER UNIVERSITY, a Texas nonprofit corporation; SHAW UNIVERSITY, a North Carolina nonprofit corporation; SHENANDOAH UNIVERSITY, a Virginia nonprofit corporation; SIMPSON COLLEGE, an Iowa nonprofit corporation; SOUTHWESTERN UNIVERSITY, a Texas nonprofit corporation; SPARTANBURG METHODIST COLLEGE, a South Carolina nonprofit corporation; ST. OLAF COLLEGE, a Minnesota nonprofit corporation; THIEL COLLEGE, a Pennsylvania nonprofit corporation; TRINITY UNIVERSITY, a Texas nonprofit corporation; UNION COLLEGE, a Kentucky nonprofit corporation; THE LUTHERAN UNIVERSITY ASSOCIATION, INC. dba VALPARAISO UNIVERSITY, an Indiana nonprofit corporation; WAGNER COLLEGE, a New York nonprofit corporation; TRUSTEES OF WHEATON COLLEGE, an Illinois special charter corporation; WILEY COLLEGE, a Texas nonprofit corporation; WILLIAM PEACE UNIVERSITY, a North Carolina nonprofit corporation; WILSON COLLEGE, a Pennsylvania nonprofit corporation; and THE COLLEGE OF WOOSTER, an Ohio nonprofit corporation, Respondents, v. CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NUMBER W2205F200301 EFFECTIVE MARCH 1, 2020 TO MARCH 1, 2021; CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NUMBER B080110908U20 EFFECTIVE MARCH 1, 2020 TO MARCH 1, 2021; GUIDEONE NATIONAL INSURANCE COMPANY, an Iowa corporation; COLONY INSURANCE COMPANY, a Virginia corporation; ACE AMERICAN INSURANCE COMPANY, a Pennsylvania corporation; STARR SURPLUS LINES INSURANCE COMPANY, a Texas corporation; ARCH SPECIALTY INSURANCE COMPANY, a Missouri corporation; EVANSTON INSURANCE COMPANY, an Illinois corporation; ATEGRITY SPECIALTY INSURANCE COMPANY, a Delaware corporation; HDI GLOBAL INSURANCE COMPANY, an Illinois corporation; WESTPORT INSURANCE CORPORATION; a Missouri corporation; TOKIO MARINE AMERICA INSURANCE COMPANY, a New York corporation; ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY, a Delaware corporation; THE PRINCETON EXCESS AND SURPLUS LINES INSURANCE COMPANY, a Delaware corporation; MITSUI SUMITOMO INSURANCE COMPANY OF AMERICA, a New York corporation; HOMELAND INSURANCE COMPANY OF NEW YORK, a New York corporation; and DOES 1 through 50, inclusive, Petitioners.
• Court: Washington Supreme Court

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PACIFIC LUTHERAN UNIVERSITY, a Washington nonprofit corporation; THE UNIVERSITY OF PUGET SOUND, a Washington nonprofit corporation; WHITWORTH UNIVERSITY, a Washington nonprofit corporation; ALBION COLLEGE, a Michigan nonprofit corporation; ALBRIGHT COLLEGE, a Pennsylvania nonprofit corporation; ALMA COLLEGE, a Michigan nonprofit corporation; ARCADIA UNIVERSITY, a Pennsylvania nonprofit corporation; AUGSBURG UNIVERSITY, a Minnesota nonprofit corporation; AUGUSTANA COLLEGE, an Illinois nonprofit corporation; CALIFORNIA LUTHERAN UNIVERSITY, a California nonprofit corporation; CAPITAL UNIVERSITY, an Ohio nonprofit corporation; CARTHAGE COLLEGE, an Illinois not-for-profit corporation; CLAFLIN UNIVERSITY, a South Carolina nonprofit corporation; CONCORDIA COLLEGE CORPORATION, a Minnesota nonprofit corporation; CORNELL COLLEGE, an Iowa nonprofit corporation; DAVIS & ELKINS COLLEGE, INC., a West Virginia C corporation; DENISON UNIVERSITY, an Ohio nonprofit corporation; DEPAUW UNIVERSITY, an Indiana nonprofit corporation; DOMINICAN UNIVERSITY OF CALIFORNIA, a California nonprofit corporation; DREW UNIVERSITY, a New Jersey nonprofit corporation; UNIVERSITY OF EVANSVILLE, an Indiana nonprofit corporation; FLORIDA MEMORIAL UNIVERSITY, a Florida nonprofit corporation FURMAN UNIVERSITY, a South Carolina nonprofit corporation; GAMMON THEOLOGICAL SEMINARY, a Georgia nonprofit corporation; GREENSBORO COLLEGE, a North Carolina nonprofit corporation; GUSTAVUS ADOLPHUS COLLEGE, a Minnesota nonprofit corporation; TRUSTEES OF THE HAMLINE UNIVERSITY OF MINNESOTA, a Minnesota general entity; ILLINOIS WESLEYAN UNIVERSITY, an Illinois nonprofit corporation; KENYON COLLEGE, an Ohio nonprofit corporation; LAKE FOREST COLLEGE, an Illinois nonprofit corporation; UNIVERSITY OF LYNCHBURG, a Virginia nonprofit corporation; LYON COLLEGE, an Arkansas nonprofit corporation; MCKENDREE UNIVERSITY, an Illinois nonprofit corporation; MCMURRY UNIVERSITY, a Texas nonprofit corporation; MILLS COLLEGE, a California nonprofit corporation; MILLSAPS COLLEGE, a Mississippi nonprofit corporation; OHIO NORTHERN UNIVERSITY, an Ohio nonprofit corporation; OHIO WESLEYAN UNIVERSITY, an Ohio nonprofit corporation; PRINCETON THEOLOGICAL SEMINARY, a New Jersey nonprofit corporation; RANDOLPH-MACON ACADEMY, a Virginia nonstock corporation; THE TRUSTEES OF ROANOKE COLLEGE, a Virginia nonprofit corporation; ROLLINS COLLEGE, a Florida nonprofit corporation; ROSE-HULMAN INSTITUTE OF TECHNOLOGY, an Indiana nonprofit corporation; SCHREINER UNIVERSITY, a Texas nonprofit corporation; SHAW UNIVERSITY, a North Carolina nonprofit corporation; SHENANDOAH UNIVERSITY, a Virginia nonprofit corporation; SIMPSON COLLEGE, an Iowa nonprofit corporation; SOUTHWESTERN UNIVERSITY, a Texas nonprofit corporation; SPARTANBURG METHODIST COLLEGE, a South Carolina nonprofit corporation; ST. OLAF COLLEGE, a Minnesota nonprofit corporation; THIEL COLLEGE, a Pennsylvania nonprofit corporation; TRINITY UNIVERSITY, a Texas nonprofit corporation; UNION COLLEGE, a Kentucky nonprofit corporation; THE LUTHERAN UNIVERSITY ASSOCIATION, INC. dba VALPARAISO UNIVERSITY, an Indiana nonprofit corporation; WAGNER COLLEGE, a New York nonprofit corporation; TRUSTEES OF WHEATON COLLEGE, an Illinois special charter corporation; WILEY COLLEGE, a Texas nonprofit corporation; WILLIAM PEACE UNIVERSITY, a North Carolina nonprofit corporation; WILSON COLLEGE, a Pennsylvania nonprofit corporation; and THE COLLEGE OF WOOSTER, an Ohio nonprofit corporation, Respondents,
v.
CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NUMBER W2205F200301 EFFECTIVE MARCH 1, 2020 TO MARCH 1, 2021; CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NUMBER B080110908U20 EFFECTIVE MARCH 1, 2020 TO MARCH 1, 2021; GUIDEONE NATIONAL INSURANCE COMPANY, an Iowa corporation; COLONY INSURANCE COMPANY, a Virginia corporation; ACE AMERICAN INSURANCE COMPANY, a Pennsylvania corporation; STARR SURPLUS LINES INSURANCE COMPANY, a Texas corporation; ARCH SPECIALTY INSURANCE COMPANY, a Missouri corporation; EVANSTON INSURANCE COMPANY, an Illinois corporation; ATEGRITY SPECIALTY INSURANCE COMPANY, a Delaware corporation; HDI GLOBAL INSURANCE COMPANY, an Illinois corporation; WESTPORT INSURANCE CORPORATION; a Missouri corporation; TOKIO MARINE AMERICA INSURANCE COMPANY, a New York corporation; ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY, a Delaware corporation; THE PRINCETON EXCESS AND SURPLUS LINES INSURANCE COMPANY, a Delaware corporation; MITSUI SUMITOMO INSURANCE COMPANY OF AMERICA, a New York corporation; HOMELAND INSURANCE COMPANY OF NEW YORK, a New York corporation; and DOES 1 through 50, inclusive, Petitioners.

No. 100752-3

Supreme Court of Washington, En Banc

January 18, 2024

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JOHNSON, J.

This case arises from an insurance coverage dispute based on losses allegedly caused by the COVID-19 pandemic. The issues in this case focus on two trial court orders. The Pierce County Superior Court denied the insurance companies' motion to dismiss based on forum non conveniens. Also, the

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court issued an interstate antisuit injunction, enjoining the insurance companies from taking further action in a parallel case they initiated in Illinois state court. We accepted direct review and affirm.

FACTS

Sixteen insurance carriers (Insurers) issued identical "all risk" property insurance policies to over 130 institutions of higher education from across the country through the Educational & Institutional Insurance Administrators Inc. (EIIA). The EIIA is a nonprofit organization that provides risk management and insurance services to member institutions. As part of these services, the EIIA acquires and purchases insurance policies on behalf of the institutions. Clerk's Papers (CP) at 6534-39, 7411-16 (Pierce County Superior Court's order granting motion to enjoin defendants).

Sixty of these institutions of higher education (Colleges), three of which are located in Washington, filed suit against the Insurers in Pierce County Superior Court (Washington Action). The Colleges filed this action in their chosen forum, consistent with the policies' "suit against the company" clause, which states:

It is agreed that in the event of the failure of the Company to pay any amount claimed to be due hereunder or in the event of any other dispute relating to this policy, the Company, at the request of the Insured, will submit to the jurisdiction of any court of competent jurisdiction within the United States and will comply with all of the requirements necessary to give such court jurisdiction and all matters hereunder shall be determined in accordance with the law and practice of such court, not including the court's law regarding choice of law

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The Company shall not transfer, change venue, or remove, or seek to transfer, change venue, or remove any lawsuit filed by the Insured in any such court.

CP at 2588, 4635.

In the Washington Action, the Colleges seek a declaratory judgment that their COVID-19 related losses are covered under the insurance policies and recovery for the Insurers' alleged breach of contract. EIIA is not a party to the Washington Action and has not suffered any alleged losses.

Several months after this action was commenced, two of the defendant Insurers here filed a complaint against EIIA in Illinois state court (Illinois Action),^[1]seeking a declaratory judgment that the losses suffered by the Colleges are not covered by the policies.^[2] CP at 7412. The Insurers then filed a third-party complaint and joinder in the Illinois Action, joining the Colleges and seeking declaratory relief regarding policy coverage. CP at 4337-59, 7412.

In the Washington Action, the Colleges moved to enjoin the Insurers from further pursuing the Illinois Action, relying on Washington's priority of action rule. The Insurers filed cross motions to dismiss the Washington Action for lack of personal jurisdiction and on forum non conveniens grounds. The Pierce County

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Superior Court granted the Colleges' motion, enjoining the Insurers from any further action or proceedings in the Illinois Action, except that the Insurers are permitted to seek dismissal of the Illinois Action with prejudice. CP at 7414. The trial court denied the Insurers' motions to dismiss. CP at 7417-24. The Insurers sought direct discretionary review of these orders, which was granted.

ANALYSIS

I. Forum Non Conveniens

A trial court's decision on a motion to dismiss based on forum non conveniens is reviewed for abuse of discretion. A trial court abuses its discretion when its "'decision is manifestly unreasonable or based upon untenable grounds or reasons.'" In re Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004) (quoting State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997)).

A plaintiff has the original choice to file their complaint in any court of competent jurisdiction, and courts generally do not interfere with the plaintiff's choice of forum. Sales v. Weyerhaeuser Co., 163 Wn.2d 14, 19, 177 P.3d 1122 (2008) (citing Baker v. Hilton, 64 Wn.2d 964, 965, 395 P.2d 486 (1964) ("[T]he choice lies with the plaintiff in the first instance.")). The common law doctrine of forum non conveniens refers to the discretionary power of a court to decline jurisdiction "'when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another forum.'" Sales, 163 Wn.2d at 20

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(quoting Johnson v. Spider Staging Corp., 87 Wn.2d 577, 579, 555 P.2d 997 (1976)). The doctrine functions to limit the plaintiff's choice of forum to prevent them from "'"inflicting upon [the defendant] expense or trouble not necessary to [the plaintiff's] own right to pursue [their] remedy."'" Sales, 163 Wn.2d at 20 (first two alterations in original) (quoting Myers v. Boeing Co., 115 Wn.2d 123, 128, 794 P.2d 1272 (1990) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67...