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Bennett v. United States Liability Insurance Group

United States District Court, D. Oregon

April 25, 2014

JANET M. BENNETT, PH.D., Plaintiff,

Lawrence B. Burke and Timothy M. Cunningham, Davis Wright Tremaine, LLP, Portland, OR, Of Attorneys for Plaintiff.

Patrick J. Kurkoski, Mitchell, Lang & Smith, Portland, Oregon, Of Attorneys for Defendant.


MICHAEL H. SIMON, District Judge.

Janet M. Bennett ("Ms. Bennett" or "Plaintiff") brings this action against United States Liability Insurance Group ("USLI" or "Defendant"), alleging that USLI breached its insurance contract with Ms. Bennett by failing to defend her against a state court lawsuit. USLI moves for judgment on the pleadings, arguing that Ms. Bennett's complaint and attached exhibits fail to establish any factual or legal support for her claim. Ms. Bennett opposes USLI's motion and moves for partial summary judgment, arguing that there is no genuine dispute of material fact and Ms. Bennett is entitled to judgment as a matter of law.


A. Motion for Judgment on the Pleadings

A Rule 12(c) "motion for judgment on the pleadings faces the same test as a motion under Rule 12(b)(6)." McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). Dismissal for failure to state a claim under Rule 12(b)(6) "is proper if there is a lack of a ognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'" Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988)). In addition, "to survive a motion to dismiss, a complaint must contain sufficient factual matter to state a facially plausible claim to relief." Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Cafasso, United States ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (holding that the Iqbal standard applies to review of Rule 12(c) motions).

B. Motion for Summary Judgment

A party is entitled to summary judgment if the "movant shows that 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 moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge... ruling on a motion for summary judgment, " the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).


Ms. Bennett works as a training specialist and seminar conductor and is or was also a director and officer at the non-profit Intercultural Communications Institute, Inc. ("ICI"). On August 24, 2010, Milton Bennett sued Ms. Bennett in state court, seeking declaratory relief that would confirm the removal of Ms. Bennett from the ICI Board of Directors and that ICI owed no deferred compensation to Ms. Bennett. From March 19, 2009 through March 19, 2013, USLI issued a business liability insurance policy, Policy No. SP101732A, to Ms. Bennett.[1] Compl. ΒΆ 4, ECF 1.

In the state court lawsuit, Milton Bennett accused Ms. Bennett, his former wife, of various acts of misconduct relating to her involvement with ICI, including:

(a) Invoicing clients of Ms. Bennett's professional services through a non-profit entity, effectively assigning income from professional services in the entity, thereby adversely affecting the tax status of the entity; and
(b) Mischaracterizing funds derived from Ms. Bennett's professional services as deferred compensation due to Ms. Bennett from the non-profit, contrary to the requirements of the Internal ...

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