United States District Court, D. Oregon
DR. HERBERT SEMLER and SHIRLEY SEMLER, individuals, Plaintiffs,
CHARTIS PROPERTY CASUALTY COMPANY, a Pennsylvania company, Defendant.
OPINION & ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE
1, 2019, Magistrate Judge John V. Acosta issued his Findings
and Recommendation ("F&R") , recommending
that Defendant's Motion for Summary Judgment  be
granted. Plaintiffs Dr. Herbert Semler and Shirley Semler,
husband and wife, filed objections  to which Defendant
AIG Property Casualty Company
("AIGPCC") responded .
reasons I will explain below, I decline to adopt the F&R
and DENY Defendant's Motion for Summary Judgment. In
short, I reach this conclusion because I find that 1) the
Semlers' interpretation of the "Legal Action Against
Us" clause is reasonable and thus controlling pursuant
to Hoffman Construction Co. of Alaska v. Fred S. James
& Co. of Oregon, 836 P.2d 703 (Or. 1992); and 2)
under the Semlers' interpretation of the LAAU clause,
there remains a genuine dispute of material fact as to
whether the Semlers' suit is time-barred.
complete factual background to the present case, I
incorporate Judge Acosta's comprehensive summary
contained in his F&R. See F&R [ECF 30] at
2-11. In brief, the dispute between the Semlers and AIGPCC
revolves around an insurance policy issued by AIGPCC covering
a beach house owned by the Semlers. In June 2012, the beach
house suffered damage after a water supply line to an
upstairs bathroom leaked. Decl. of Dr. Herbert Semler [ECF
23] at ¶ 3. The ultimate dispute between the parties is
the amount owed under the insurance policy for the loss
resulting from that incident. At issue in AIGPCC's Motion
for Summary Judgment is whether the Semlers' suit is
time-barred by a valid suit limitation provision contained in
the insurance policy. See Pis.' Obj. to F&R
[ECF 36] at 1.
suit limitation provision is known as the "Legal Action
Against Us" clause ("LAAU clause"). Decl. of
Kathleen Spinella [ECF 20] Ex. 1 at 18. It states:
No action shall be brought against us unless the insured
person has complied with this policy's provisions ....
You also agree to bring any action against us within one year
after a loss occurs, but not until thirty (30) days after
proof of loss has been filed and the amount of loss has
Id. (emphasis added).
described more fully below, the parties have differing
interpretations for what it means for a loss to be
"determined" under the LAAU clause, and thus they
disagree as to when the one-year clock began ticking for the
Semlers to file their suit. AIGPCC contends the loss was
"determined" when it sent an email to the Semlers
on November 3, 2014 ("November 2014 Email").
Def.'s Resp. to Pis.' Obj. to F&R [ECF 39] at
3-4; see also F&R  at 7-8 (describing the
context of the November 2014 Email). The Semlers contest that
the loss was not "determined" until August 24,
2017, when AIGPCC sent the Semlers a letter ("August
2017 Letter") specifically closing the claim and citing
the limitation period of the LAAU clause. Pis.' Obj. 
at 5; see also F&R  at 10 (describing the
context of the August 2017 Letter). The Semlers filed this
suit on April 13, 2018. Compl. .
Review of Findings and Recommendation
magistrate judge makes only recommendations to the court, to
which any party may file written objections. The court is not
bound by the recommendations of the magistrate judge but
retains responsibility for making the final determination.
The court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendation as to which an objection
is made. 28 U.S.C. § 636(b)(1)(C). However, the court is
not required to review, de novo or under any other standard,
the factual or legal conclusions of the magistrate judge as
to those portions of the F&R to which no objections are
addressed. See Thomas v. Am, 474 U.S. 140, 149
(1985); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). While the level of scrutiny under which
I am required to review the F&R depends on whether or not
objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C.
judgment is appropriate when "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 seeking summary judgment bears the burden of
establishing the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986).
If the moving party demonstrates no issue of material fact
exists, the nonmoving party must go beyond the pleadings and
identify facts which show a genuine issue for trial.
Id. at 324. A party cannot defeat a summary judgment
motion by relying on the allegations set forth in the
complaint, unsupported conjecture, or conclusory statements.
Hernandez v. Spacelabs Med., Inc.,343 F.3d 1107,
1112 (9th Cir. 2003). Summary judgment thus should be entered
against "a party who fails to ...