United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane, United States District Judge.
Kenneth Kirk brings this breach of contract action against
his homeowner's insurance company, Mutual of Enumclaw
Insurance (MOE). Pending before the Court are cross motions
for summary judgment. Kirk argues that MOE wrongfully failed
to pay his claim following the theft of Kirk's personal
property. MOE argues Kirk's claim is barred under the
theft exclusion of the policy because Kirk's ex-wife, who
committed the theft, is named as an insured on the policy.
Because the theft exclusion precludes coverage for theft
committed by an insured, MOE's motion for summary
judgment, ECF No. 15, is GRANTED.
insured Kirk under a homeowner's insurance policy
(“the policy”). When Kirk filed the claim on
February 14, 2018, the policy was in full force and effect.
The policy listed Kenneth Kirk and his then-wife Joli Kirk as
“insured” parties on the declarations page of the
policy, and both remained listed on the policy on the date
that Kirk filed his insurance claim. Events leading up to the
dispute at issue are as follows:
Nov. 19, 2017
Kirk's then wife made a domestic abuse
allegation and received a no-contact order,
effectively excluding Kirk from entering within a
mile of the home or the property contained therein.
Dec. 13, 2017
Kirk filed a petition for dissolution of marriage.
Feb. 6, 2018
Lane Co. Circuit Court entered judgment on petition
for dissolution of marriage and granted Kirk the
residence and all personal property located
Feb. 14, 2018
Lane Co. Sheriff executed a writ of assistance,
returning possession of the premises to Kirk. Kirk
then filed his insurance claim.
On or about Apr. 5, 2018
Kirk filed a motion to show cause in Lane Co.
Circuit Court against his now ex-wife for theft of
May 30, 2018
Kirk received a default judgment against his
ex-wife for property theft in the amount of $81,
Nov. 16, 2018
After receiving Kirk's claim for stolen
property, MOE stated that any reimbursement would
be limited to property not listed in the default
judgment against Kirk's ex-wife.
Nov. 19, 2018
MOE issues payment to Kirk for $5, 986.90.
ultimately paid Kirk $5, 986.90 on his claim for $67, 765.79.
Stipulation ¶¶ 11, 13. MOE declined to pay for any
items included in the default judgment based on its
interpretation that Joli Kirk was a named insured on the
policy when the theft occurred. Stipulation ¶ 12, ECF
No. 11. Instead, Defendant reimbursed only those items
reported stolen that were excluded from the list at Lane
County Circuit Court's show cause hearing. Id.
The outstanding amount MOE refused to pay totals $59,
278.89. Stipulation ¶ 14, ECF No. 11. Kirk
filed this action for breach of contract. Kirk and MOE each
filed cross-motions for summary judgment.
court must grant summary judgment if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue is
“genuine” if a reasonable jury could return a
verdict in favor of the non-moving party. Rivera v.
Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.
2005) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). A fact is “material” if it
could affect the outcome of the case. Id. The court
reviews evidence and draws inferences in the light most
favorable to the non-moving party. Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting
Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When
the moving party has met its burden, the non-moving party
must present “specific facts showing that there is a
genuine issue for trial.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (quoting
case turns on the interpretation of an insurance policy.
Therefore, I must ascertain the intention of the parties to
the policy. Hoffman Constr. Co. of Alaska v. Fred S.
James & Co. of Oregon, 313 Or. 464, 469 (1992). I
first turn to the language of the policy. Id.
(citing ORS 742.016 (except in cases not relevant here,
“every contract of insurance shall be construed
according to the terms and conditions of the
policy.”)). If the terms and conditions of the policy
are ambiguous following a plain meaning review, the court
considers the terms and conditions in the particular context
used and then, if necessary, in the context of the policy as
a whole. Id. at 470. If any ambiguity
remains-meaning if two or more plausible interpretations of
the term remain-the court resolves the ambiguity against the
drafter and in favor of the insured. Id. Courts
examine the policy language from the perspective of the
ordinary purchaser of insurance. N. Pac. Ins. Co., v. Am.
Mfrs. Mut. Ins. Co., 200 Or.App. 473, 478 (2005).
policy at issue states that MOE insures against several named
perils and outlines the conditions and exclusions for
coverage against those perils. The named peril at issue here
is the theft provision, the pertinent parts of which appear
Coverage C - Personal Property
We insure for direct physical loss to the
property described in Coverage C caused by the following
perils, unless the loss is excluded below, or unless the loss
is excluded in Section I - Exclusions.
9. Theft, including attempted theft and loss
of property from a known place when it is likely that the