Opinion
3:20-cv-0811-YY
03-15-2022
SS-P INVESTMENTS, LLC, a domestic limited liability company, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, an Illinois company, Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiff SS-P Investments, LLC is the owner of Brookshire Meadows Apartments (“Brookshire”), a 128-apartment development in Beaverton, Oregon. Plaintiff alleges a single claim for breach of contract against its insurer, defendant State Farm Fire and Casualty (“State Farm”), for failure to pay for “significant property damage.” Compl. ¶ 10, ECF 1-1. This court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), as there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000. Id. ¶¶ 4, 10; Notice Removal ¶¶ 5-6, ECF 1.
Defendant has filed a Motion for Summary Judgment (ECF 8). For the reasons that follow, defendant's motion should be GRANTED and this case should be dismissed with prejudice.
I. Legal Standards and Relevant Law
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment 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.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing FED. R. CIV. P. 56(e)).
The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
B. Relevant Law on the Interpretation of Insurance Policies
A federal court, sitting in diversity jurisdiction, applies state law to interpret an insurance policy. Travelers Prop. Cas. Co. of Am. v. ConocoPhillips Co., 546 F.3d 1142, 1145 (9th Cir. 2008). Under Oregon law, “[t]he overriding goal in construing an insurance policy is to ‘ascertain the intention of the parties.'” Hunters Ridge Condo. Ass'n v. Sherwood Crossing, LLC, 285 Or.App. 416, 422 (2017) (citation omitted). The court determines “the intention of the parties by analyzing the policy's express terms and conditions.” Id. (citing Hoffman Const. Co. v. Fred S. James & Co., 313 Or. 464, 469 (1992), and O.R.S. 742.016(1) (providing that, with some exceptions, “every contract of insurance shall be construed according to the terms and conditions of the policy”)). The court interprets the terms of the policy from the perspective of an “ordinary purchaser of insurance.” Id. (quoting Congdon v. Berg, 256 Or.App. 73, 87 (2013)) (quotation marks omitted). “The language used in a contract of insurance is entitled to a construction as favorable to the insured as in good conscience will be permitted, and every reasonable intendment will be allowed to support a view that will protect the insured and prevent forfeiture.” Schweigert v. Beneficial Standard Life Ins. Co., 204 Or. 294, 301 (1955) (citations omitted).
If an insurance policy explicitly defines a phrase, the court must apply that definition. Holloway v. Republic Indemn. Co. of America, 341 Or. 642, 650 (2006). “If the policy does not define the phrase in question, [the court] ‘resort[s] to various aids of interpretation to discern the parties' intended meaning.” Id. (quoting Groshong v. Mutual of Enumclaw Ins. Co., 329 Or. 303, 307-08 (1999)). “Under that interpretive framework, [the court] first consider[s] whether the phrase in question has a plain meaning, i.e., whether it ‘is susceptible to only one plausible interpretation.'” Id. (quoting Groshong, 329 Or. at 308). “If the phrase in question has a plain meaning, [the court] will apply that meaning and conduct no further analysis.” Id. “If the phrase in question has more than one plausible interpretation, [the court] will proceed to the second interpretive aid”-“[t]hat is, [the court] examine[s] the phrase in light of ‘the particular context in which that [phrase] is used in the policy and the broader context of the policy as a whole.'” Id. (quoting Hoffman Const., 313 Or. at 470) (alteration in original).
“If the ambiguity remains after the court has engaged in those analytical exercises, then ‘any reasonable doubt as to the intended meaning of such [a] term[ ] will be resolved against the insurance company....'” North Pacific Ins. Co. v. Hamilton, 332 Or. 20, 25 (2001) (quoting, among other cases, Hoffman Const., 313 Or. at 470 (alteration in original)); see also Allen v. Cont'l Cas. Co., 280 Or. 631, 633 (1977) (“[I]n the event of an ambiguity in the terms of an insurance policy any reasonable doubt will be resolved against the insurance company and in favor of extending coverage to the insured.”). “[A] term is ambiguous . . . only if two or more plausible interpretations of that term withstand scrutiny, i.e., continue[ ] to be reasonable....” Hoffman Const., 313 Or. at 470 (emphasis in original).
Exclusions are interpreted like any other terms in the policy. Bighorn Logging Corp. v. Truck Ins. Exch., 295 Or.App. 819, 828-89 (2019). Generally, the insured bears the initial burden of proving coverage, the insurer has the burden of proving exclusions to coverage, and the insured has the burden of proving exceptions to exclusions. Employers Ins. of Wausau, A Mut. Co. v. Tektronix, Inc., 211 Or.App. 485, 509, 514 (2007) (reasoning the party seeking the benefit of a particular provision generally bears the burden of proving its application).
II. Suit Limitations Provision
Defendant first contends that this lawsuit is untimely based on the suit-limitation provision found within the policies. Mot. Summ. J. 16, ECF 8. Defendant insured plaintiff's property under two policies: Apartment Policy FP 6107 (“FP-6107”) between November 1, 2003, to November 1, 2012, and Businessowners Policy CMP 4100 (“CMP 4100”) between November 1, 2012, and the policy's cancellation on December 31, 2015. Id. at 10. Both policies contain the following language:
8. Legal Action Against Us
No one may bring legal action against us under this insurance unless:
b. The action is brought within two years after the date on which the accidental direct physical loss occurred.Mot. Summ. J., Ex. A at 183, 235, 270, ECF 8-3.
The parties agree that the court's interpretation of this provision in a similar case, Silver Ridge Homeowners' Ass'n, Inc. v. State Farm Fire & Cas. Co., applies to the present dispute. No. 3:19-CV-01218-YY, 2020 WL 5893317 (D. Or. Oct. 5, 2020). In Silver Ridge, the court found that the term “occurred” was ambiguous, and recognized the plaintiff's interpretation- that the suit limitation provision does not begin to run until a loss is discovered or exposed-as cognizable. Id. at *4. Defendant now alleges, based on evidence obtained through discovery, that plaintiff “discovered the damage occurring at its complex by 2010 at the latest.” Mot. Summ. J. 16-17, ECF 8 (quotation marks removed).
A. Relevant Law on Statute of Limitations and the Discovery Rule
Oregon courts have adopted the “discovery rule” to determine the appropriate limitations period within a suit-limitations clause. This rule provides that the limitations period is tolled until a policy holder, in exercising reasonable care, discovered or should have discovered injury or loss that is covered by the pertinent policy. Greene v. Legacy Emanuel Hosp. & Health Care Ctr., 335 Or. 115, 120 (2002). Put differently, the limitations period begins to run when the insured knows or, “in the exercise of reasonable care, should know every fact which it would be necessary . . . to prove . . . to support his right to judgment.” Stevens v. Bispham, 316 Or. 221, 227 (1993) (citation omitted).
To be clear, the discovery rule does not require the insured to have “actual knowledge that each element is present” for the limitations period to begin. Gaston v. Parsons, 318 Or. 247, 256 (1994). However, “a mere suspicion is insufficient to begin the statute of limitations to run.” Id. Between those two extremes is a “quantum of awareness” that is guided by “an objective test” inquiring “what a plaintiff should have known in the exercise of reasonable care.” Id. Importantly, the “discovery rule does not protect those who sleep on their rights, but only those who, in exercising the diligence expected of a reasonable person, are unaware that they have suffered legally cognizable harm.” Id.
The question of whether the injury or loss has been discovered or should have been discovered is a question of fact. Ass n of Unit Owners of Marina Riverhouse v. State Farm Fire & Cas. Co., No. 3:11-CV-307-MO, 2011 WL 4544630, at *3 (D. Or. Sept. 29, 2011). It can be resolved “against the plaintiff on summary judgment only if the plaintiff should have achieved that awareness as a matter of law.” Id. (citing Cole v. Sunnyside Marketplace, LLC, 212 Or.App. 509, 519 (2007)).
B. Background Facts
After reviewing all the submitted exhibits, the court finds it prudent to outline the various incidents, damage, and associated repairs that occurred at Brookshire between 2003, when issues began appearing, and 2018, when plaintiff claims it actually discovered the damage. In doing so, the court categorizes the records in four groups: window-related damage that occurred prior to 2018, roof-related damage that occurred prior to 2018, siding and deck-related damage that occurred prior to 2018, and all damage that was assessed after 2018. Of course, the various exterior features of an apartment complex do not operate in isolation; for example, improper flashing on the roof of a building could force water to pool and eventually penetrate a sheet of improperly attached siding. However, this method of presenting the information helps illustrate what plaintiff knew as each incident occurred and whether its responses were reasonable.
This method of categorization does not cover issues where the problem was not identified. See, e.g., Mot. Summ. J., Ex. 98 at 1, ECF 23 (“water leak in [unit], need to investigate”).
1. Roof-Related Damage
The exhibits indicate that the first roof-related issue occurred in 2002, when a resident reported a “small hole in ceiling” that was causing water to drip into the bedroom. Mot. Summ. J., Ex. 1 at 1, ECF 8-6. The maintenance worker, suspecting that the hole was created via the removal of a ceiling hook, temporarily fixed the problem with liquid foam. Id. Four years later, in 2006, another resident complained that management had failed to address his leaking ceiling for “almost two years.” Mot. Summ. J., Ex. 22 at 1, ECF 8-9. He wrote:
When the court cites to exhibit numbers provided by the parties, they are often the exhibit numbers of the underlying deposition exhibits.
At least six times I was assured that the situation would be addressed but it has not. During the raining season I was told that I would have to wait until it stops raining. During the dry season I was told it was not urgent to remedy because it was not raining. I have repeatedly monitored and emptied bowls placed to catch the water during those years....At this point, compensation for damages and trouble would not be out of order to ask for. I am in the process of searching for a resolution [to] the problem. I ask you to do the same.Id.
Around January 2010, plaintiff hired Interstate Roofing Company (“Interstate”) to inspect and perform maintenance on all the roofs at Brookshire. See Bates Decl. ¶ 4, ECF 14; Mot. Summ. J., Ex. 52 at 1, ECF 8-14. Interstate's report, which was provided to plaintiff on January 29, 2010, detailed numerous, systemic issues with the roofs and roof features. For example, Interstate found that: flashing was missing throughout the complex; nails used to secure roof features were often too short, not flush, not caulked, or improperly exposed; and a majority of the chimneys lacked underlayment, making them quite loose. Id. at 2-14. As for the roofs themselves, Interstate found moss, damaged shingles, ponding water and “rot EVERYWHERE.” Id. at 15-20 (capitalization in original). In summarizing its findings, the Interstate consultant wrote, “[on] ¶ 1-10 scale, I would give them a 4 for workmanship. With some TLC, the roofs can be made to last another 5 years easily.” Id. at 1.
Plaintiff began roof repairs immediately upon reviewing Interstate's January 2010 report. Bates Decl. ¶ 4, ECF 14. Records show that in February 2010, Interstate provided invoices detailing that “[r]oof repairs [were] completed as per contract”; the underlying contract specified that Interstate would, “per the written report of [January 29, 2010][,] do all items under nail[s], flashings, and chimneys.” Pl. Supp. Ex. at 71, 74, ECF 21. Roof-related repairs also continued at Brookshire in 2013: records show that Interstate installed new roofing and shingles at two buildings. Id. at 4-5, 8. However, Interstate also wrote that while the roof work was “completed as contracted,” “[r]otten plywood was discovered and replaced on your project,” and “ it could . . . be a sign of a condensation issue.” Id. at 66.
This work may have been initiated in response to an Interstate report, received by plaintiff in February 2013, that concluded the roof of a unit was “in poor condition” because water was “getting through [the] first layer of roof and running behind [the] gutter edge into [the] window.” Mot. Summ. J., Ex. 82 at 1, ECF 8-22.
A limited number of roof-related issues occurred after Interstate finished its work. In 2013, a resident complained of “continuous water dripping down from [the] balcony ceiling in several places.” Mot. Summ. J., Ex. 99 at 1, ECF 8-24. To fix the issue, maintenance workers “cleaned sand out of gutter from roofing last year.” Id. at 2. Four individual roof-related issues occurred in 2015. In November 2015, a resident reported a “leak in [the] large living room window.” Mot. Summ. J., Ex. 124 at 1, ECF 8-25. The maintenance worker noted that while a patch was installed, the roof would “maybe need to” be replaced. Id. Three residents complained of roof-related issues in December 2015. First, a resident reported a bulge in the ceiling and that water was leaking onto the bed. Mot. Summ. J., Ex. 125 at 1, ECF 8-26. Nine days later, another resident reported that the wall and carpet of a hallway was wet; after removing some drywall, maintenance workers identified and fixed a leak. Mot. Summ. J., Ex. 126 at 1, ECF 8-27. Toward the end of the month, a resident reported that water was leaking into his bathroom's heat lamp fixture. Mot. Summ. J., Ex. 127 at 1, ECF 8-28. Maintenance workers installed a vent in the roof to resolve the problem. Id. at 1, 3.
2. Siding and Deck-Related Damage
The exhibits also illustrate significant problems related to siding and decks at Brookshire. In 2008, plaintiff hired Glenn Sheppard Construction Services (“GS”) to perform maintenance and repairs on all decks. See Bates Decl. ¶ 3, ECF 14; Pl. Supp. Ex. at 61-62, ECF 21 (containing invoices for repairs to 127 decks). Invoices suggest that this work was completed in two stages: one portion of the work was completed in February 2009, while the rest was finished by April 2009. Id. In 2009, while GS repairs were ongoing, a tenant reported that water was “leaking onto [the] deck between [the] fascia and gutter.” Mot. Summ. J., Ex. 36 at 1, ECF 8-10. About thirteen days later, the same tenant complained that water was “still coming thru [ sic ] between [the] gutter and fascia” and another unit “has come completely down - needs repair.” Mot. Summ. J., Ex. 38 at 1, ECF 8-11. The maintenance worker fixed the issue by installing “flashing[,] over [the] gutter.” Id. Exhibits also show that apartment inspections, conducted on February 18, 2009, found significant problems with thirty-three decks; damage varied from unit to unit, but often included rotted plywood and dry rot. Mot. Summ. J., Ex. 39 at 1, ECF 8-12.
The exhibits and pleadings use the terms “deck,” “balcony,” and “patio” interchangeably. For consistency, the court will refer to this feature as a “deck.”
In addition to deck problems, these inspections revealed numerous moisture-related problems within units, including mold on the walls and ceiling, caulk on the floor, and dry rot damage. See generally Mot. Summ. J., Ex. 39, ECF 8-12.
Interstate's January 2010 report, which detailed roof-related problems at Brookshire, also included concerns relating to exterior siding. See Mot. Summ. J., Ex. 52 at 21-24, ECF 8-14. The report noted that in multiple locations, siding was broken and damaged, too short, missing flashing, or absent altogether. Id. Interstate also wrote that the siding consisted of “old siding, a layer of 3/8” insulation, and hollow-back vinyl siding,” and “[w]hen [construction workers] put on the vinyl, I can find no evidence that they put any waterproof barrier behind it.” Id. at 21 (emphasis added).
A week later, in February 2010, Interstate provided plaintiff with a report that outlined significant concerns involving the siding at Brookshire. The report confirmed that the improper installation practices detailed in their January report “appear[ed] to be consistent” “throughout the complex.” Mot. Summ. J., Ex. 53 at 1, ECF 8-15. After detailing even more issues, Interstate concluded that “the vinyl siding at [Brookshire] appear[s] to have been installed with a complete disregard for the Vinyl Siding Institute best practices polices.” Id. at 13. It appears that in response to this report, plaintiff contemplated replacing all the siding at Brookshire: a February 2010 email discusses a budget for removing, from all buildings, “existing siding (two layers) [and] install[ing] new hollow back vinyl siding and accessories with a .44 thickness.” Pl. Supp. Ex. at 47, ECF 21. However, subsequent invoices detail siding replacements at only three of the eight buildings. See id. at 6 (noting completed siding on buildings C and G) and 16 (providing an estimate for replacing siding at building A). Even if siding was replaced at all of the Brookshire buildings, two more siding-related maintenance requests were filed in 2016; these requests detailed that vinyl siding was peeling off of various features of the complex. See Mot. Summ. J., Ex. 129 at 1, ECF 8-29; Id., Ex. 131 at 1, ECF 8-31.
3. Window-Related Damage
Lastly, the exhibits include maintenance reports that illustrate a number of window-related issues at Brookshire. The first problem appeared in 2003, when maintenance workers noticed a living room window that “leak[ed] . . . when it rains.” Mot. Summ. J., Ex. 3 at 1, ECF 8-7. Three years later, in 2006, a maintenance request detailed a “leak from a living room window” that had been ongoing for over a year (despite three prior attempts to fix the issue). Mot. Summ. J., Ex. 8 at 1, ECF 8-8. Similar problems arose in 2010, when two units reported that their windows leaked during heavy rain. Mot. Summ. J., Ex. 62 at 1, ECF 8-16; Id., Ex. 64 at 1, ECF 8-17.
Three tenants submitted window-related repair requests in 2012. One resident complained that the front window in their unit was “leaking again at the top”; maintenance workers noted this leak resulted from “heavy rain fall.” Mot. Summ. J., Ex. 75 at 2, ECF 8-19. Another reported that a leak in the main window was “getting worse” and noted that the request was a “third complaint.” Mot. Summ. J., Ex. 78 at 1, ECF 8-20. A third resident described a leak in the master bedroom window; management responded that the issue would be resolved “in spring/summer 2013.” Mot. Summ. J., Ex. 81 at 1, ECF 8-21.
Finally, two issues arose in 2016. One resident reported that water was dripping into his unit from a leak in the window, and posited that the problem was related to exterior flashing. Mot. Summ. J., Ex. 136 at 1, ECF 8-30. Another resident requested that maintenance inspect his window due to leaking. Mot. Summ. J., Ex. 145 at 1, ECF 8-32. It appears that in all of these requests, maintenance workers responded quickly to resolve window-related problems in individual units.
4. International Building Consultant's 2018 Report
In 2018, plaintiff retained IBI Building Consultants (“IBI”) to perform a “Deck and Landing Destructive Test Evaluation” at Brookshire. Walker Decl., Ex. B at 2, ECF 16-1. The investigation was performed “to evaluate the safety concerns and to discover construction issues, including flashing, cladding, penetrations, possible dry rot and other issues.” Id. IBI's eventual report detailed numerous problems with the roofs, siding, and patios at Brookshire, including dry rot, fungi activity, moisture staining, improperly installed siding, missing or improperly installed flashings, and the absence of weather resistant barriers. See id.
During the investigation, IBI contractors condemned all the complex's decks because they were hazardous and “need[ed] to be replaced.” Id. at 43. Ultimately, Tobi Crooks, the president of IBI, advised that “some issues [at Brookshire] . . . are widely viewed as unacceptable practices by building industry associations and professionals.” Id. at 2. Plaintiff alleges it was at this point when it discovered the full nature of the damage to Brookshire. Opp. 5, ECF 11.
5. Analysis
Defendant argues that plaintiff “discovered the damage occurring at its complex by 2010 at the latest”-when Interstate provided its reports concerning roof and siding-related issues. Mot. Summ. J. 16-19, ECF 8. Plaintiff counters that summary judgment based on the suitlimitations provision is improper because one of its experts, Crooks, declared that the “systemic property damage” he discovered was “not reasonably discoverable by the owners until I performed destructive testing in 2018.” Opp. 5-6, ECF 11; Crooks Decl. ¶¶ 5, 7, ECF 12.
The court makes two further points here. First, plaintiff's expert, Crooks, also performed the destructive testing at Brookshire and wrote the conclusions described above. Second, Crooks' declaration is the subject of defendant's motion to strike, which is discussed later.
Before addressing Crooks' expert opinion, the court first evaluates the exhibits submitted by the parties. The evidence demonstrates that for the most part, plaintiff acted quickly and comprehensively upon learning of any damage at Brookshire. For example, the exhibits detail nine window-related issues between 2003 and 2018. In nearly every instance, maintenance workers responded and resolved the problem with either temporary fixes or more permanent remedies (such as flashing). Moreover, in fairness to plaintiff, 9 window-related issues across 128 units over roughly 15 years does not necessarily serve as an impetus or actual knowledge of a larger problem.
The evidence also demonstrates that when plaintiff was confronted with more wide-ranging issues, such as deck decay and roof problems, it swiftly hired professionals to perform immediate repair work. For example, a series of apartment inspections, conducted in February 2009, revealed moisture-related problems on patios in thirty-three units. Mot. Summ. J., Ex. 39 at 1, ECF 8-12. Within two months, a professional contractor reported that repair work for all patios was completed. Pl. Supp. Ex. at 62, ECF 21. Similarly, after receiving Interstate's January 2010 report, plaintiff immediately hired Interstate to rectify all roof problems associated with nails, chimneys, and flashings. Pl. Supp. Ex. at 71, 74, ECF 21. Interstate was hired again in 2013 to install new roofing and shingles at two buildings. Id. at 4-5, 8. And Interstate's work appeared successful: between 2013 and 2018, only four roof-related maintenance requests were submitted-an average of less than one request per year.
The court engages in this comprehensive analysis to answer a key question: did plaintiff fail to exercise reasonable care in response to the roof, patio, and window-related issues such that it should have been aware of a larger, more serious problem? As the non-moving party, plaintiff is entitled to have all reasonable inferences drawn in its favor, and using that standard, the court cannot summarily conclude that plaintiff's actions necessarily place it at fault for failing to discover a larger issue with the roofs, patio, and windows. Instead, the question of whether plaintiff's actions demonstrated reasonable care, in the context of the suit-limitations provision, would be one for a jury.
The same cannot be said, however, for siding-related issues at Brookshire. Plaintiff's expert, Crooks, opines that siding problems were difficult to discover because “a prior repair contractor apparently applied new exterior building components over existing building components.” Crooks Decl. ¶ 5, ECF 12. He adds that because of this, “the property damage at Brookshire was not reasonably discoverable by the owners until I performed destructive testing in 2018.” Id. ¶ 8. Yet the evidence demonstrates that in 2010, plaintiff was made aware of (1) siding-related defects at Brookshire and (2) the existence of multiple layers of siding. In its January 2010 report, Interstate noted that “the siding at [Brookshire] consists of old siding, a layer of 3/8” insulation, and hollow-back vinyl siding....I can find no evidence that [installers] put any waterproof barrier behind it.” Mot. Summ. J., Ex. 52 at 21, ECF 8-14. Interstate further investigated these issues, and detailed the following in its February 2010 report to plaintiff:
Two pieces of siding were un-zipped [] to check for [a] weather proofing system.
[E]xisting cladding was not removed before the new siding was installed. It appears no vapor barrier was used prior to the 3/8” fanfold insulation.
Without a z-metal type flashing at this location, it is likely water is entering the siding system.
2x6 framing is completely saturated with water.
A piece of siding was removed from the west wall of the garages and the siding system is consistent with the siding system on building “A”[:] no vapor barrier, no tape at the seams of the fanfold foam. ...
The vinyl siding at [Brookshire] appear[s] to have been installed with a complete disregard for the Vinyl Siding Institute best practices policies.Mot. Summ. J., Ex. 53 at 3-4, 8, 10, 12-13, ECF 8-15 (emphasis added).
Simply put, while Crooks suggests that siding-related issues were not reasonably discoverable until destructive testing was performed in 2018, Interstate's 2010 report illustrates the very problems he identifies: multiple layers of siding, the absence of a waterproof barrier beneath layers of siding, and already-saturated wood. Id. These reports, at a minimum, gave plaintiff notice that (1) the siding at Brookshire was already deteriorating and (2) an underlying issue was the improper installation of layers of siding and the absence of a waterproof barrier. This information should have provided plaintiff with the impetus to comprehensively investigate and rectify the problem. Instead, the record indicates that while plaintiff contemplated a broader solution, it ultimately replaced siding at just three of the eight buildings. See Pl. Suppl. Ex. at 6, ECF 21 (noting completed siding on buildings C and G) and 16 (providing an estimate for siding replacement on building A).
The “discovery rule does not protect those who sleep on their rights, but only those who, in exercising the diligence expected of a reasonable person, are unaware that they have suffered legally cognizable harm.” Gaston, 318 Or. at 256. Defendant, as the movant for summary judgment, bears the burden of demonstrating “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). The exhibits demonstrate that plaintiff failed to exercise reasonable diligence in response to the siding-related issues that were brought to its attention in 2010.
However, again, with respect to problems associated with windows, roofs, and decks, plaintiff did not sleep on its rights. Instead, it actively worked to identify and rectify problems as soon as they arose. At a minimum, there remains a genuine dispute of fact as to whether plaintiff's actions were necessarily unreasonable in response to the window, roof, and deck problems at the property such that it must have been aware of a larger problem. Thus, summary judgment in favor of the defendant through the suit-limitations provision is only proper for damage associated with the siding at Brookshire.
III. FP-6107 (2003-2012) and Efficient Proximate Cause
To recap, the subject matter of defendant's motion for summary judgment involves two policies: FP-6107, which ran from November 1, 2003, through November 1, 2012, and CMP-4100, which ran from November 1, 2012, until the policy's cancellation on December 31, 2015. Plaintiff claims the buildings suffered damage from “weather conditions,” which it argues is a covered loss. Resp. 1, 5, ECF 31. Under an all-risks policy such as the ones here, water-related weather conditions, including rain and wind-driven rain, are covered perils. See Great Am. All. Ins. Co. v. Sir Columbia Knoll Assocs. Ltd. P'ship, 484 F.Supp.3d 946, 965 (D. Or. 2020) (finding rain is a covered peril); Sunbreaker Condo. Ass'n, 79 Wash.App. at 378 (same).
Defendant argues that the following exclusions from the FP-6107 policy, as amended, preclude coverage:
(1) “growth, proliferation, spread, or presence of fungus” (Zavala Decl. 137, ECF 8-3);
(2) “smog, wear, tear, rust, corrosion, decay, deterioration, hidden or latent defect or any quality in property that causes it to damage or destroy itself” (Id.);
(3) “settling, cracking, shrinking, bulging, or expansion” (Id. at 225);
(4) “repeated discharge or continuous or repeated seepage or leakage of water, or the presence of condensation, moisture, or vapor, that occurs over a period of time” (Id. at 137);
(5) “faulty, inadequate, unsound, or defective” workmanship and construction(Id. at 225-26).
Mot. Summ. J. 8-13, ECF 8.
Plaintiff contends that the efficient proximate cause doctrine precludes summary judgment as to the FP-6107 policy. The Oregon Supreme Court has explained the doctrine as follows:
It is an established rule of insurance law that where a peril specifically insured against sets other causes in motion which, in an unbroken sequence and connection between the act and final loss, produces the result for which recovery is sought, the insured peril is regarded as the proximate cause of the entire loss.Gowans v. Nw. Pac. Indem. Co., 260 Or. 618, 621 (1971) (citing 5 Appleman, Insurance Law and Practice § 3083 at 309 (1970); see also Naumes, Inc. v. Landmark Ins. Co., 119 Or.App. 79, 82 (1993) (“The ‘efficient proximate cause' of a loss ‘is the active and efficient cause that sets in motion a train of events which bring about a result without the intervention of any force, starting and working actively and efficiently from a new and independent source.'”).
“If there are multiple causes of a single loss, the ‘efficient proximate cause' is the relevant cause for determining coverage under an insurance contract.” Naumes, 119 Or.App. at 82. In other words, “if there are multiple causes of a loss and a covered peril is the efficient proximate cause, then even though another cause is an excluded cause of the loss/damage, the loss/damage is nonetheless covered.” 12W RPO, LLC v. Affiliated FM Ins. Co., 353 F.Supp.3d 1039, 1047-48 (D. Or. 2018) (citing Naumes, 119 Or.App. at 82). “In contrast, if the proximate efficient cause is an excluded peril, the loss is not covered.” Id. at 1048 (citation omitted). Relatedly, “if the predominant cause of the loss is a question of material fact-such as when multiple perils combine to cause plaintiff's damage and at least one but not all are covered-‘the question of which peril constitutes the proximate cause is left to the factfinder.'” Eagle Harbour Condo. Ass'n v. Allstate Ins. Co., No. C15-5312-RBL, 2017 WL 1316936, at *3 (W.D. Wash. Apr. 10, 2017) (citation omitted).
While defendant has identified five possible exclusions within the FP-6107 policy, each party has presented its own central theory of damage: plaintiff alleges that it is weather conditions, while defendant alleges that the damage was caused by faulty construction. See Opp. 9-13, ECF 11; Reply 11-13, ECF 15. “If the facts are disputed, or different inferences may be drawn from undisputed facts, the question of the ‘efficient proximate cause' of a loss is for the jury.” Naumes, 119 Or.App. at 82-83.
A. Defendant's Theory: Construction Defects
Defendant suggests that the efficient proximate cause of the damage at Brookshire is construction defects. Reply 11-13, ECF 15. FP-6107 excludes coverage for damage from construction defects and inadequate construction:
(3) We do not insure under any coverage for any loss consisting of one or more of the items below. Further, we do not insure for loss described in paragraphs 1. and 2. immediately above regardless of whether one or more of the following: (a) directly or indirectly cause, contribute to or aggravate the loss; or (b) occur before, at the same time, or after the loss or any other cause of the loss:
(b) faulty, inadequate, unsound or defective:
(2) design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction.See Zavala Decl. 225, ECF 8-3.
In support of its theory, defendant has provided the declaration of its expert, Tim Lewis, who opines that Brookshire, as originally constructed, had “incomplete and inappropriate waterproofing measures.” Lewis Decl. 3, ECF 8-2. Defendant also directs the court's attention to plaintiff's own maintenance records, which detail significant construction-related issues. For example, in January 2010, plaintiff was provided with a report outlining problems with the complex's roofs. The report began by noting that “[o]n a 1-10 scale, I would give [the roofs] ¶ 4 for workmanship.” Mot. Summ. J., Ex. 52 at 1, ECF 8-14. A February 2010 report investigating siding-related issues concluded that “the vinyl siding at [Brookshire] appear to have been installed with a complete disregard for the Vinyl Siding Institute best practices polices.” Mot. Summ. J., Ex. 53 at 13, ECF 8-15. And in 2018, one of plaintiff's own experts, Crooks, wrote that a destructive testing evaluation was done “to evaluate the safety concerns and to discover construction issues, including cladding, flashing, penetrations, possible dry rot and other issues,” and observed that “some issues . . . are widely viewed as unacceptable practices by building industry associations and professionals.” Walker Decl., Ex. B at 2, ECF 16-1 (emphasis added).
Plaintiff alleges that its own expert, Hoff, “is the only expert who has provided an opinion on the efficient proximate cause of this loss.” Opp. 10, ECF 11. While defendant's expert, Lewis, did not phrase his opinion using terminology related to efficient proximate cause, the content of his declaration clearly conveys a belief that the damage at Brookshire stemmed from construction defects.
Plaintiff does not dispute the existence of construction-related defects at Brookshire. Instead, it contends the efficient proximate cause is something else-i.e., “weather conditions”- and argues that as a matter of law, construction defects can never serve as the efficient proximate cause of damage. Opp. 9-13, ECF 11. Plaintiff's argument rests on three points, all related to text from the Oregon Supreme Court's decision in Gowans: first, that construction defects do not “set in motion” rain; second, that construction defects did not independently cause damage at Brookshire; and third, that the construction defects cannot cause damage without rain. Opp. 1013, ECF 11; see also 260 Or. at 621.
However, as plaintiff concedes, its position is contrary to that of “[c]ourts in Oregon and Washington.” Id. at 11. Indeed, at least one case in this district holds that construction defects can serve as the efficient proximate cause of building damage. Point Triumph Condominium Ass'n v. American Guarantee and Liability Insurance Co. involved a group of condominium buildings near the Oregon coast that suffered water penetration-related damage. No. 99-CV-1504-JE, 2000 WL 34474454, at *1 (D. Or. Dec. 29, 2000). The plaintiff, who was the owner of these buildings, sought a claim against the insurer, arguing the property was damaged by weather. The insurer denied the claim, arguing that defective siding, construction, and maintenance were the culprits for the plaintiff's loss; the plaintiff then sued the insurer in this court. Id. at *2, *5. This court, interpreting two Ninth Circuit cases, found that construction-related defects could serve as the efficient proximate cause:
Plaintiff's loss here was caused by moisture penetrating the siding and substructure of several of plaintiff's buildings. Wind-driven rain, a peril covered by the policy, is a common phenomenon on the Oregon Coast, and there is no evidence in the record that it would have damaged plaintiff's buildings in the absence of defects in material or inadequacies in construction or maintenance that are specifically excluded under the policy. The damage to plaintiff's buildings was not a “natural” direct or indirect consequence of the rain, but instead was an abnormal occurrence that would not occur in the absence of other conditions-the faulty material, construction, or maintenance established by the record-that were specifically excluded from coverage under the policy. Under these circumstances, as in Smith and Tento, rain may have “operated more immediately” than other factors in producing the loss. Like the failure to cover exposed property in those actions, use of defective siding, or improper construction or maintenance here “set in motion” the chain of events leading to the loss. Here, as in those decisions, the rain cannot be characterized as the “dominant” or “most important” cause of loss. Accordingly, a trier of fact could not conclude that wind-driven rain constituted the efficient proximate cause.Id. at *6 (D. Or. Dec. 29, 2000). In addition to this finding, the Point Triumph court cautioned against using language from Gowans-as plaintiff does now-to argue that only weather conditions, and not construction defects, can serve as the efficient proximate cause:
Though [ Gowans ] sets out an important principle of insurance law, the Court's application of that principle to the facts before it does not support plaintiff's position here. In determining that a reward paid by the insured to secure the return of stolen jewelry constituted a “loss by theft” within the meaning of a policy, the Court noted that the reward was a “natural and direct consequence of the theft,” and characterized the theft as the “dominant cause of the loss” that the insured incurred in paying the reward. . . Gowans does not support the conclusion that wind-driven rain can be characterized as the “efficient proximate cause” of plaintiff's loss here.Id.
This court is persuaded by the analysis in Point Triumph, and adopts it here. Plaintiff's argument-that construction defects cannot ever serve as the efficient proximate cause of the damage-is rejected. If a jury found that the efficient proximate cause of the damage at Brookshire stemmed from construction defects, then the applicable coverage exclusion would apply, and defendant would prevail.
B. Plaintiff's Theory: Weather Conditions
Meanwhile, plaintiff asserts that the efficient proximate cause of the damage is “weather conditions,” a peril that is covered under FP-6107. Reply 9, ECF 15. In support of this theory, plaintiff points to the declaration of its expert, Eric Hoff, who opines:
It is my professional opinion that the efficient or predominant cause of damage at Brookshire was due to weather conditions, including wind-driven rain. If these buildings had not been exposed to weather, the property damage discovered would not have occurred.Hoff Decl. ¶ 3, ECF 13. At the outset, it is important to clarify an important point: while plaintiff's expert opines that the efficient proximate cause of the damage is weather conditions, he only describes damage from water-related weather conditions, such as wind-driven rain. Id. In other words, Hoff does not opine that weather events that are independent of water, such as intense heat, caused the damage. Accordingly, the court treats plaintiff's efficient proximate cause of “weather conditions” as synonymous with water-related weather conditions.
Defendant responds by arguing that even if the efficient proximate cause of the damage is water-based weather conditions, such as wind-driven rain, FP-6107 excludes coverage for such damage through the “seepage or leakage of water” exclusion. Reply 13, ECF 15.
Defendant also alleges that the coverage exclusion for “dry rot” bars plaintiff from recovering for damage under the FP-6107 policy. Because only one applicable exclusion is necessary to exclude coverage, and the “seepage or leakage of water” exclusion applies to plaintiff's claim, it is unnecessary to address the applicability of the “dry rot” exclusion.
The “seepage or leakage of water” exclusion, as amended, reads:
(2) We do not insure for loss either consisting of, or directly and immediately caused by, one or more of the following:
k. repeated discharge or continuous or repeated seepage or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of time.Zavala Decl. 137, 224, ECF 8-3. Defendant argues that these terms clearly convey to an ordinary person that water damage, including wind-driven rain, is excluded from coverage.
Plaintiff responds with several arguments. First, it notes that defendant created an exclusion for weather conditions in future policies, and claims that the absence of such an exclusion in the FP-6107 policy indicates that weather conditions were not originally excluded.
Opp. 14, ECF 15. While this argument may be rhetorically appealing, it is not dispositive; this court must still conduct an actual examination of the text of the applicable policy, FP-6107.
Second, plaintiff alleges:
Insurance policies are interpreted from the perspective of an average purchaser of insurance....The fact that insurance attorneys and the Court, in this case and in Abitare, have spent numerous pages and hours of argument discussing whether the application of the seepage or leakage exclusion applies to weather conditions is proof enough that an average purchaser of insurance could not come to the conclusion suggested by State Farm.Id. In making this argument, plaintiff invokes litigation in a similar case before this court, Abitare Condo. Ass'n. v. State Farm Fire & Cas., No. 3:18-CV-01074-YY, 2021 WL 7081392 (D. Or. 2021). In Abitare, the court contemplated arguments surrounding the interpretation of an insurance policy identical to the one in this case. There, the plaintiff noted that the term “water” appeared in different contexts throughout the insurance policy, and suggested that an ordinary purchaser of insurance would be confused at the alleged inconsistencies in the context of rain damage. Id. at *7. In interpreting the policy, the court made two observations: first, that examples of forms of water included in the policy did not purport to be definitional clauses that confined the meaning of water, and second, that the use of “water” in the exclusion was not inconsistent with rain. Id. at *6-*7. The court then concluded:
These two points illuminate an important principle: “water” has a consistent meaning within FP-6107, and that meaning is its ordinary and commonly understood forms: rain falling from the sky, rain that has hit the ground and become surface water, water from leaking equipment, water that crashes onto beaches in waves, and so forth. Defendant's decision to provide examples of what the exclusion applies to does not subsequently bind the meaning of water to only those examples, and an ordinary person would not interpret the water exclusion to imply as such. There is no confusion as to the meaning of “water” within FP-6107, and ambiguity cannot be created by presenting illustrative examples as ironclad limitations.Id. at *8. Thus, while plaintiff may claim that the voluminous briefing in Abitare speaks volumes about how State Farm's policies are allegedly confounding, the court disagreed, finding one consistent meaning accessible to an ordinary purchaser of insurance.
Third, plaintiff argues that the “continuous” and “repeated” terms in the seepage or leakage exclusion make no sense in the context of rain. Opp. 14-16, ECF 15. However, that argument is inconsistent with the findings of other courts, which have concluded that such an exclusion applies in the context of water-related weather conditions, including rain. For example, in Iroquois on the Beach, Inc. v. Gen. Star Indem. Co., a Michigan hotel suffered damage “gradually over the course of several years” due to “water . . . entering the building envelope because of the insufficient steel frame that failed to protect the building in windy conditions, inappropriateness of the existing cladding system for the site's extreme climatic conditions, and the too high or sloped existing grade around the building.” 550 F.3d 585, 586 (6th Cir. 2008). Before addressing the application of the efficient proximate cause doctrine, the Sixth Circuit panel acknowledged that the seepage exclusion applied to water and rain. Id. at 588.
Similarly, Caribbean I Owners' Ass'n, Inc. v. Great Am. Ins. Co. of New York involved an insurance dispute over damage to a condominium development in connection with Hurricane Ivan. 600 F.Supp.2d 1228 (S.D. Ala. 2009). The policy contained an exclusion for “[c]ontinuous or repeated seepage or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more,” as well as an exclusion for “hidden or latent defects.” Id. The court concluded that proximate cause was a jury question because there were factual disputes whether the damage was caused by construction defects, or “whether [the plaintiff's] claimed loss arises from those continuous, repeated seepages of water over time, or from the one-time event of Hurricane Ivan driving sheets of rain through the Building's windows and doors.” Id. These cases illustrate that courts routinely apply a “continuous or repeated seepage or leakage of water” exclusion toward damage from rainwater.
Thus, the “continuous or repeated seepage or leakage” exclusion applies to plaintiff's efficient proximate cause theory: water-based weather conditions. The only remaining question is whether the water seeped or leaked for a requisite period of time. While the term “period of time” is undefined in the policy, the court in Fifth v. State Farm Ins. Co. found:
The plain meaning of “period” is “a length of time during which a series of events or an action takes place or is completed.” The plain meaning of “time” is “the thing that is measured as seconds, minutes, hours, days, years, etc.”No. CIV.A. 11-7440 NLH, 2014 WL 1253542, at *5 (D.N.J. Mar. 25, 2014). The court held that the time period at issue-one month-“would fit the description.” Id.
Plaintiff alleges there is no evidence in the record that any discharge, seepage, or leakage repeatedly occurred over a “period of time.” Opp. 20, ECF 11. But the declaration of defendant's expert, Lewis, offers uncontroverted insight on this issue. He opines:
Due to the inappropriate waterproofing at the complex, the buildings appear to have begun leaking soon after original construction and have continued to leak since that time. I observed decayed sheathing and [framing] that was readily apparent during the repair process. Over the years, each time it rained, water leaked into the wall structures of the buildings and caused the underling wood sheathing and framing to decay and deteriorate.
The Portland, Oregon area receives an average of annual rainfall of approximately 40 inches. That rainfall is spread out over many days throughout the year....The water would cause the building components such as sheathing and framing to become wet. Those components would remain wet for [a] long period of time and, as a result, those components would decay and deteriorate. The water intrusion and leakage that caused the damage to the buildings was continuous and repeated and occurred over many years.Lewis Decl. 3-4, ECF 8-2 (emphasis added). Indeed, Lewis' diagnosis of “continuous and repeated” water intrusion as the building's components “remain[ed] wet for [a] long period of time” is corroborated by many of plaintiff's records, which detail issues such as moisture penetration and dry rot within the Brookshire buildings over the years. See, e.g., Walker Decl., Ex. B at 4, 5, 8, 10-11, 13, 16, 28, 38, ECF 16-1 (noting construction defects that allow moisture to penetrate the building and related damage).
Finally, plaintiff argues that “when there are competing expert opinions on causation, it is difficult to understand why the [c]ourt is in a better position than a jury to determine whose position is correct.” Opp. 10, ECF 11. However, the court is not required to determine which theory of efficient proximate cause is correct if both theories are excluded from coverage. See 12W RPO, LLC v. Affiliated FM Ins. Co., 353 F.Supp.3d 1039, 1048 (D. Or. 2018) (“[I]f the proximate efficient cause is an excluded peril, the loss is not covered.”) If defendant is correct, and the efficient proximate cause of the damage at Brookshire is construction defects, then the construction defects exclusion in plaintiff's policy applies to exclude coverage. Similarly, if plaintiff is correct, and the efficient proximate cause of the damage is water-related weather conditions, then the “seepage or leakage” exclusion applies and denies plaintiff coverage. Defendant is thus entitled to summary judgment on all damage related to the FP 6107 policy.
This conclusion regarding efficient proximate cause differs from that of Abitare in two key respects. First, the parties in Abitare submitted competing expert declarations as to whether the property in question was properly constructed, creating an issue of fact that prevented summary application of the construction defects coverage exclusion. Abitare, 2021 WL 7081392 at *5-*6. In this case, plaintiff and its expert have only alleged that it is not possible, as a matter of law, for construction defects to ever serve as the efficient proximate cause. Second, there was no evidence in the Abitare record as to the duration of the water seepage or leakage while one of the insurance policies was in effect. Id. at *10. There is evidence of such in the record here.
IV. CMP-4100 (2012-2015) and Weather Conditions Exclusion
On November 1, 2012, the parties adopted the Business Owners Coverage Policy CMP-4100 (“CMP-4100”). Like the preceding FP-6107 policy, the CMP-4100 policy covered “accidental direct physical loss” to covered property and granted coverage so long as an exception did not apply. A crucial difference between the policies is that the CMP-4100 policy contained the following “weather conditions” exclusion:
We do not insure under any coverage for any loss consisting of one or more of the items below. Further, we do not insure for loss described in Paragraphs 1. and 2. immediately above regardless of whether one or more of the following: (a) directly or indirectly cause, contribute to or aggravate the loss; or (b) occur before, at the same time, or after the loss or any other cause of the loss:
a. Weather Conditions
Weather conditions. But this exclusion only applies if weather conditions contribute in any way with a cause or event excluded in Paragraph 1. and 2. above to produce the loss.
Zavala Decl., Ex. A at 260, ECF 8-3. These terms reference exclusions that also restrict coverage, and defendant alleges that the following exclusions work in tandem with the weather conditions exclusion to bar coverage:
(1) “growth, proliferation, spread, or presence of fungi” (Id. at 258);
(2) “rust or other corrosion, decay, deterioration, hidden or latent defect or any quality in property that cause it to damage or destroy itself” (id. at 259);
(3) “settling, cracking, shrinking, bulging, or expansion” (Id.);
(4) “Continuous or repeated seepage, discharge or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more.” (id. at 260);
(5) “faulty, inadequate, unsound, or defective” workmanship and construction (id.).Mot. Summ. J. 13-15, ECF 8.
Thus, CMP-4100 excludes coverage for loss due to “weather conditions” if they“contribute in any way” with any other excluded event to the loss in question. Id. And as discussed earlier, Lewis' uncontroverted declaration provides:
[After rain in the Portland area], components [of the Brookshire complex] would remain wet for [a] long period of time and, as a result, those components would decay and deteriorate. The water intrusion and leakage that caused the damage to the buildings was continuous and repeated and occurred over many years.Lewis Decl. 3-4, ECF 8-2 (emphasis added). This declaration aligns with the “continuous or repeated seepage, discharge or leakage” exclusion, as Lewis makes clear that decay from water intrusion and wet building components was “continuous and repeated and occurred over many years”-a period of time that is much longer than fourteen days.
This declaration also rebuts plaintiff's argument that there is no evidence in the record to demonstrate that water intrusion continuously occurred for fourteen days. Opp. 20, ECF 11.
Plaintiff argues against application of the weather conditions exclusion on four different grounds. First, plaintiff reiterates its point that if the weather conditions exclusion applies to damage that occurred after 2012, then summary judgment cannot be granted for coverage under the prior FP 6107 policy, which did not contain a weather conditions exclusion. Opp. 19, ECF 11. This argument was previously addressed and has no bearing on the applicability of the weather conditions exclusion to the period between 2012 and 2015. Second, plaintiff realleges that the weather conditions exclusion does not work with the seepage or leakage exclusion because rain does not necessarily “seep”; this argument was also resolved earlier. Id. Third, citing its expert Hoff's declaration, plaintiff claims “the damage that would have occurred prior to the inception of [CMP-4100] would have necessitated the same repair cost,” thus making it “essentially irrelevant” if continued damage occurred while CMP-4100 was in effect. Id. Even if true, this factual point lends no weight to the legal question of whether the weather conditions exclusion bars coverage for damage at Brookshire.
Finally, plaintiff argues that the weather conditions exclusion does not apply because it did not “contribute[] with any seepage, discharge or leakage to produce the loss.” Opp. 19, ECF 11. Specifically, plaintiff claims that the weather conditions exclusion “only applies if it works concurrently with another peril identified . . . to produce the loss” and “does not apply when a weather condition ‘directly or indirectly causes' the loss.” Id. at 20.
This issue is easily resolved by looking to the definition of “contribute,” which means “to play a significant part in making something happen.” Contribute, MERRIAM-WEBSTER, https://www.merriam-webster.com/ dictionary/contribute (last visited March 8, 2022). Thus, the exclusion applies if weather conditions played a significant part in making either “continuous or repeated seepage, discharge or leakage of water, or the presence or condensation of humidity, moisture or favor, that occur[ed] over a period of 14 days or more” happen. That is what happened here.
In sum, defendant has met its burden of establishing that the exclusion for weather conditions applies to the uncontroverted facts in this case. Thus, defendant is entitled to summary judgment on any damage that falls within the purview of the CMP-4100 policy, which was in effect between November 1, 2012, and December 31, 2015.
V. Defendant's Motions to Strike
In its reply, defendant moves to strike the declarations of plaintiff's experts, Crooks and Hoff, and the declaration of Kimberly Bates, an individual “involved with [Brookshire] since the property was purchased” by plaintiff. See Reply 2-5, ECF 15. Defendant argues that these declarations (1) offer expert testimony in the form of legal conclusions, which are inadmissible; (2) improperly opine on plaintiff's state of mind; and (3) contradict plaintiff's sworn responses to defendant's interrogatory questions. Id. Plaintiff opposes defendant's motion on two grounds: first, that Bates' testimony is relevant because she “has managed the project” since plaintiff's acquisition of it; and second, that Crooks' and Hoff's declarations are based on their own individual observations and expertise. Opp. Mot. Strike 2-5, ECF 17. In any event, there was no need for the court to independently rely on any of these contested declarations to decide this motion for summary judgment. Accordingly, this motion is moot.
RECOMMENDATIONS
For the reasons set forth above, defendant's motion for summary judgment (ECF 8) should be GRANTED and this case should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, March 29, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.