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Housing Northwest, Inc. v. American Insurance Co.

United States District Court, D. Oregon

December 20, 2019

HOUSING NORTHWEST INCORPORATED, Plaintiff,
v.
AMERICAN INSURANCE COMPANY and TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Defendants.

          OPINION AND ORDER

          STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         BACKGROUND[1]

         HNI is 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.)

         In 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.)

         HNI 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.)

         American 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.)

         HNI 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.)

         ANALYSIS

         I. STANDARD OF REVIEW

         Summary 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).

         II. DISCUSSION

         Defendants 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.

         A. ...


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