United States District Court, D. Oregon
OPINION AND ORDER
ANN AIKEN, District Judge.
This is a declaratory judgment action to obtain a judicial declaration as to plaintiff Scottsdale Insurance Company's ("Scottsdale") coverage obligation, if any, to defendants Ortiz & Associates, Inc. ("Ortiz") and CPM Development Corp. d/b/a Inland Asphalt Co. ("Inland") arising out of an underlying lawsuit involving a fatal workplace accident ("underlying lawsuit") Inland moves to dismiss this action for lack of subject matter jurisdiction, or alternatively, to stay this action until the underlying lawsuit pending in Washington is resolved. Inland's motion to stay this action until the underlying lawsuit is resolved is GRANTED.
On August 9, 2012, defendants Stacy Boatman and minor child B.A.L. (collectively "Boatman") brought the underlying lawsuit against Inland in Washington State trial court. Boatman alleges several claims, including the wrongful death of Brian Allen Lacy, in connection with a workplace accident where Lacy was allegedly struck and killed by a dump truck owned by Inland while he worked on a highway construction project site in Kennewick, Washington. Farnell Decl. Ex. 1 at ¶¶ 2.1, 3.4, 3.6.
Defendant Inland was the contractor for the construction project with the State of Washington Department of Transportation; Ortiz was Inland's subcontractor on the job site and also Lacy's employer. Hall Decl. Ex. 1.
Under the subcontract between Inland and Ortiz, Ortiz was obligated to maintain certain minimum insurance coverage and to obtain additional insured status for Inland under its policies. Hall Decl. Ex. 1 at 15-16. Ortiz's primary commercial liability policy (the "Catlin Policy") includes Inland as an additional insured. Lister Decl. Ex. 2 at 73. Additionally, Scottsdale issued a commercial excess insurance policy ("Excess Policy") to Ortiz, providing coverage in excess of injury or damage covered in the Catlin Policy, that was effective at the time of the accident. Lister Decl. Ex. 2 at 94.
The underlying lawsuit to determine liability for Lacy's death is still ongoing. Inland has not tendered defense of the underlying lawsuit to Scottsdale. Hall Decl. ¶ 3; Rosner Decl. at 6-7 (doc. 33). However, Inland has placed Scottsdale on notice that the underlying lawsuit could trigger coverage under the Excess Policy.
Inland is also engaged in a separate action related to the underlying lawsuit. Ortiz's primary insurer, Catlin, initially defended Inland in the underlying lawsuit; however, Catlin is not presently doing so and has not agreed to resume defense of Inland in the underlying lawsuit. Hall Decl. ¶ 4. As a result, Inland has commenced coverage litigation in the U.S. District Court for the Western District of Washington to enforce Catlin's coverage obligations. Hall Decl. ¶ 4. This lawsuit is also currently ongoing.
On October 8, 2013, Scottsdale initiated this declaratory judgment action seeking a declaration that it has no duty to defend, indemnify, or provide coverage under the Excess Policy with respect to the underlying lawsuit. Scottsdale maintains that the auto liability exclusion in the Excess Policy precludes coverage for the accident in the underlying lawsuit. Subsequently, on January 28, 2014, Scottsdale moved for summary judgment to establish that the Excess Policy it issued to Ortiz provides no coverage for the claims and damages alleged in the underlying lawsuit against Inland.
Inland now moves to dismiss the declaratory judgment action on grounds that this Court has no subject matter jurisdiction. In the alternative, Inland moves to stay this action until the underlying litigation pending in the Washington State court and the Western District of Washington are resolved.
Scottsdale alleges Inland tendered defense of the underlying lawsuit to Scottsdale, and that it has no duty to defend Inland. Compl. at ¶ 35 (doc. 1); Pls. Resp. at 2. The duty to defend is often addressed before the duty to indemnify because it can be determined by examining the complaint alone. Ledford v. Gutoski , 319 Or. 397, 400, 877 P.2d 80 (1994) ("The insurer has a duty to defend if the complaint provides any basis for which the insurer provides coverage."). However, the duty to defend is not at issue in this motion. At this time, no evidence shows that Inland tendered defense to Scottsdale. Hall Decl. ¶ 3; Rosner Decl. at 6-7 (doc. 33).
Scottsdale also alleges it has no duty to indemnify Inland in the underlying lawsuit. The duty to indemnify is independent of the duty to defend. Ledford , 319 Or. at 403. The insurer's duty to indemnify arises when the insured lS "liable for harm or injury that is covered by the policy." Leach v. Scottsdale Indemn. Co., 261 Or.App. 234, ___ P.3d ___ 2014 WL 662324, at *8 (Feb. 12, 2014) (quoting Ledford , 319 Or. at 405)). In other words, if the facts proved at trial establish the liability of the insured, the insurer's duty to indemnify will also be established as long as the insured's conduct is covered by the policy. Charter Oak Fire Ins. Co. v. Interstate Mechanical, Inc. , 958 F.Supp.2d 1188, 1215 (D. Or. 2013) (citing Ledford , 319 Or. at 403)). Thus, in order to determine the existence of a duty to indemnify, the court must examine the facts of the underlying lawsuit. Id.
Inland argues that a stay is appropriate because it has not tendered defense of the underlying lawsuit to Scottsdale as an excess insurer, and there is no obligation to indemnify yet because the underlying lawsuit is ongoing. Given that the underlying lawsuit is unresolved, it is unknown whether Boatman will obtain a judgment against Inland, and if so, whether such judgment would exhaust the Catlin Policy and therefore implicate Scottsdale's Excess Policy. Additionally, Inland argues that proceeding with the declaratory judgment action at this time ...