United States District Court, D. Oregon
OPINION AND ORDER
F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Housing Northwest Incorporated (“HNI”) filed this
action against Travelers Property Casualty Company of America
(“Travelers”) and American Insurance Company
(“American”) (together, “Defendants”)
alleging breach of contract and breach of the implied
covenant of good faith and fair dealing. (ECF No. 3.)
Defendants now move for summary judgment (ECF Nos. 15 and
17), and HNI moves to certify a question to the Oregon
Supreme Court. (ECF No. 25.) For the reasons explained below,
the Court denies Defendants' motions for summary judgment
and denies HNI's motion for certification.
a non-profit company that provides college housing in
Portland. (Decl. of Steven Davies (“Davies
Decl.”) ¶ 3, ECF No. 21.) HNI owns and operates
housing property located on SW Clay Street in Portland
(hereinafter “Goose Hollow property”). (Davies
Decl. ¶ 3.) Travelers issued six year-long policies to
HNI from July 1, 2012 to July 1, 2018. (Decl. of Ronald J.
Clark (“Clark Decl.”) ¶ 6, ECF No. 16.)
American issued HNI a policy with coverage from July 1, 2011
to July 1, 2012. (Decl. of Darren C. Beatty (“Beatty
Decl.”), Ex. A, ECF No. 19.)
2017, HNI retained the services of BEAR Consulting Services,
LLC (“BEAR”), to perform a building envelope
assessment of the Goose Hollow property. (Davies Decl. ¶
4.) In a report dated June 13, 2017, BEAR detailed its
preliminary findings that the Goose Hollow property may be
sustaining hidden property damage from water intrusion.
(Decl. of Lee Dunham (“Dunham Decl.”) ¶ 5,
ECF No. 22.) The “water intrusion likely happened very
early on in the service life of the structure (in or around
1997) and continued until the discovery of hidden
damage.” (Dunham Decl. ¶ 11.) New damage began
with each actual wetting and drying cycle and continued
throughout the effective dates of the insurance policies at
issue from 2011-2019. (Dunham Decl. ¶ 12.) The extent
and nature of the damage was not discovered until March 2018.
(Dunham Decl. ¶¶ 12-13.)
tendered a claim to Travelers under its policies providing
coverage from July 1, 2012, through July 1, 2018. (Decl. of
Nicholas A. Thede (“Thede Decl.”) Ex. B, ECF No.
24.) HNI also submitted a claim under the policy issued by
American in effect from July 1, 2011 through July 1, 2012.
(Beatty Decl. Ex. A.)
denied HNI's claim on October 17, 2018. (Davies Decl.
¶ 6.) Travelers denied HNI's claim on February 19,
2019. (Id.) Both insurers cited the “Legal
Action Against Us” clause in the policies which
requires that “[t]he action be brought within 2 years
after the date on which the direct physical loss or damage
occurred.” (See Thede Decl., Ex. A at 35,
Beatty Decl., Ex. A at 62.)
originally filed this case in Multnomah County Circuit Court,
but Travelers removed the case on February 20, 2019. (ECF No.
1.) The parties agreed to resolve the issue of the suit
limitation provision prior to engaging in discovery. (Thede
Decl. ¶ 9.)
STANDARD OF REVIEW
judgment is appropriate if “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). On a
motion for summary judgment, the court must view the facts in
the light most favorable to the non-moving party, and draw
all reasonable inferences in favor of that party.
Porter, 419 F.3d at 891. The court does not assess
the credibility of witnesses, weigh evidence, or determine
the truth of matters in dispute. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the
record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
and quotation marks omitted).
move for summary judgment on the ground that this action is
untimely because the relevant suit limitation provisions
require HNI to bring an action within two years after the
date on which the loss or damage occurred. HNI responds that
the two-year limitation provision was not triggered until HNI
discovered the loss or damage and therefore its suit is
timely. The Court agrees.