United States District Court, D. Oregon
OPINION AND ORDER
PAPAK, UNITED STATES MAGISTRATE JUDGE
Gabriel Cottet ("Gabriel") and Katie Cottet
("Katie" and, collectively with Gabriel, the
"Cottets") filed this action against their insurer,
defendant Country Mutual Insurance Company ("CMI")
in the Multnomah County Circuit Court on October 3, 2016. CMI
removed plaintiffs' action to this court effective
October 26, 2016, on the asserted basis of diversity
through their complaint, plaintiffs (each, a citizen of
Oregon) allege that CMI (a corporation organized under the
laws of the State of Illinois and headquartered in Illinois)
issued them a homeowners insurance policy (the
"Policy") pursuant to which CMI was obliged to
provide coverage for damage to plaintiffs' home (the
"insured premises") and for damage to
plaintiffs' personal property, whether or not such
property was located within the insured premises at the time
the damage occurred. Plaintiffs further allege that, in
November 2015, a fire destroyed a garage located on a parcel
of land owned by plaintiffs but separate from and adjoining
the insured premises. At the time the fire occurred, the
garage contained a large custom-built kiln which was also
damaged by the fire. The parties agree that the value of the
kiln exceeded the limits of coverage under the Policy. The
parties further agree that CMI has paid all amounts due and
owing under the Policy for damage to plaintiffs' personal
property damaged in the fire other than damage to the kiln,
and that the damage to the kiln is covered under the Policy
if the kiln is properly characterized as plaintiffs'
personal property, but not if the kiln is properly
characterized as a fixture of the damaged garage.
Thus, the parties' sole dispute is as to the proper
characterization of the kiln either as personal property or
as a fixture.
out of the foregoing, plaintiffs allege CMI's liability
under Oregon common law for breach of contract and for breach
of the implied covenant of good faith and fair dealing, and
seek damages in the approximate amount of $260, 000, plus
pre-and post-judgment interest, attorney fees, and costs.
This court has diversity jurisdiction over plaintiffs'
claims pursuant to 28 U.S.C. § 1332, based on the
complete diversity of the parties and the amount in
before the court are plaintiffs' motion (#10) for summary
judgment and CMI's cross-motion (#16) for summary
judgment. I have considered the motions, oral argument on
behalf of the parties, and all of the pleadings and papers on
file. For the reasons set forth below, plaintiffs' motion
(#10) for summary judgment is denied, and CMI's motion
(#16) for summary judgment is granted.
judgment is appropriate "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). A party taking the position that a
material fact either "cannot be or is genuinely
disputed" must support that position either by citation
to specific evidence of record "including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials, " by showing that the evidence of
record does not establish either the presence or absence of
such a dispute, or by showing that an opposing party is
unable to produce sufficient admissible evidence to establish
the presence or absence of such a dispute. Fed.R.Civ.P.
56(c). The substantive law governing a claim or defense
determines whether a fact is material. See Moreland v.
Las Vegas Metro. Police Dep't, 159 F.3d 365, 369
(9th Cir. 1998).
judgment is not proper if material factual issues exist for
trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S.
318, 322 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Warren v. City of
Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). In
evaluating a motion for summary judgment, the district courts
of the United States must draw all reasonable inferences in
favor of the nonmoving party, and may neither make
credibility determinations nor perform any weighing of the
evidence. See, e.g., Lytle v. Household Mfg., Inc.,
494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000).
cross-motions for summary judgment, the court must consider
each motion separately to determine whether either party has
met its burden with the facts construed in the light most
favorable to the other. See Fed. R. Civ. P. 56;
see also, e.g., Fair Hous. Council v. Riverside Two,
249 F.3d 1132, 1136 (9th Cir. 2001). A court may not grant
summary judgment where the court finds unresolved issues of
material fact, even where the parties allege the absence of
any material disputed facts. See id.
the Cottets are individual citizens of Oregon. Defendant CMI
is a corporation organized under the laws of the State of
Illinois and headquartered in Illinois. CMI is engaged in the
business of providing insurance, including homeowners
insurance, II. Material Facts
1978, plaintiff Gabriel's father, Joel Cottet
("Joel") owned two adjacent lots in N.W. Portland,
Oregon. See Declaration (#14) of Gabe Cottet
("Cottet Decl."), ¶¶ 2-3; Declaration
(#13) of Mark Lewis ("Lewis Decl"), ¶¶ 3,
5, 6. Joel's residence was located on one of the two lots
(now, the insured premises) and he kept a brick pottery kiln
of approximately 128 cubic feet in volume in a garage located
on the second of the two lots (the "adjoining
lot"). See Lewis Decl, ¶ 5.
around 1979, Joel moved the brick pottery kiln from the
garage on the adjoining lot to another property he owned, and
replaced it with a significantly larger pottery kiln -
approximately 1000 cubic feet in volume - that he personally
had helped to design. See id., ¶ 7. Cottet
Decl., ¶ 3. In order to fit the new kiln onto the
adjoining lot, it was necessary for Joel to pour a new,
additional 25'x25' concrete pad for the existing
garage, and then to build new walls and a roof to enclose the
newly added pad and the custom-build kiln. See Lewis
Decl., ¶ 8. The new concrete slab was equipped with a
trench intended to be used as a flue for a large
downdraft-style kiln like the one Joel had designed.
See Declaration (#17) of Daniel E. Thenell
("Thenell Decl. I"), ¶ 8, Exh. 4 (Deposition
of Gabriel Cottet ("Cottet Depo.")), 38:20 - 39:2,
43:11-17. That flue was connected to a chimney of
loose-stacked, unmortared bricks. See Declaration
(#12) of Robert Graydon ("Graydon Decl."),
¶j¶ 8, 12. The main structure of the kiln was made
of six solid metal plates approximately 10'x10' in
area which were welded together with short seam welds each of
a few inches in length. See id., ¶ 8. The metal
plates were surrounded by metal piping that could be
detatched by unscrewing four connectors. See Id. The
interior of the kiln was lined with flame-retardant fiber.
See Id. The kiln was attached to its power supply
with wire nut screws, and attached to the gas utility line
with a union joint. See id., ¶¶ 8-9. ...