Sun Valley Plaza, LLC v. Admiral Insurance Company, 33862-2

Background

Sun Valley Plaza LLC owned commercial property in Yakima and procured an Admiral insurance policy (9/15/11–9/15/12) and a renewal policy (9/15/12–9/15/13) through agent Terril, Lewis & Wilke (Terril).
The 2012–2013 renewal required installation/maintenance of a central-station burglar alarm on portions of the insured premises; the prior policy required a more limited alarm.
Tenant Del Matthews occupied a portion of the premises; his lease terminated 11/30/12 but he vacated 11/1/12 after eviction proceedings and threats to owner/manager Larry Hull.
On 11/5/12 Sun Valley discovered extensive vandalism/theft (cut walls, stolen wiring, fixtures removed) on the leased/adjoining property and submitted a claim; Admiral denied coverage because required alarms were not maintained.
Sun Valley sued Terril (for failing to timely deliver the renewal policy and to warn of the alarm requirement) and Admiral; Terril moved for summary judgment arguing Sun Valley presented no evidence the vandalism occurred during the renewal policy period (after 9/15/12).
The trial court granted summary judgment for Terril; the Court of Appeals affirmed, finding Sun Valley’s proof only speculative as to timing and causation and thus insufficient to defeat a summary-judgment motion based on absence of proof of an essential element (that loss occurred during the renewal policy period).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Sun Valley presented sufficient evidence that the vandalism occurred during the renewal policy period (after 9/15/12)	Circumstantial facts (no reports of damage before 9/15/12; tenant negotiations and threats after 9/15/12; frequent drive-bys noticing no damage) allow a reasonable inference the damage occurred after 9/15/12	Sun Valley lacks any direct or admissible circumstantial evidence establishing the date of loss; plaintiff conceded burden to show loss during renewal period and cannot do so	Held for defendant: evidence is speculative, not probative; no genuine issue of material fact that loss occurred during the renewal policy period
Whether a threat by the tenant supports an inference the tenant caused vandalism after 9/15/12	Threats and motive create reasonable inference tenant committed the vandalism after the threat	Motive/hostility alone is insufficient; no witness, confession, or investigation ties tenant to the vandalism	Held: Threat alone is insufficient to raise a triable issue; inference would be mere speculation
Whether affidavits or assertions created a genuine issue contradicting deposition testimony	Sun Valley sought to rely on factual assertions and inferences in affidavits/briefs to create issues of fact	Defendant pointed to deposition testimony (owner conceded damage could have occurred during first policy) negating a triable fact; party cannot create issue by contradicting clear deposition answers without explanation	Held: Deposition answers controlling; plaintiff cannot use unsupported affidavit/inferences to rebut clear deposition testimony
Whether summary judgment was appropriate where defendant showed absence of evidence on an essential element	Sun Valley argued inferences should preclude summary judgment	Terril met its burden by pointing to absence of proof on the timing element of plaintiff’s case	Held: Summary judgment proper when moving party shows nonmoving party lacks proof of essential element; Celotex principles apply

Key Cases Cited

Ranger Insurance Co. v. Pierce County, 164 Wn.2d 545 (Washington 2008) (definition of material fact and summary judgment principles)
Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (party may obtain summary judgment by showing absence of evidence on an essential element)
Truck Ins. Exchange v. BRE Properties, 119 Wn. App. 582 (Wash. Ct. App.) (insured must sustain loss during effective policy period to trigger coverage)
Fujii v. State Farm Fire & Casualty Co., 71 Wn. App. 248 (Wash. Ct. App.) (timing of loss relevant to coverage)
Gardner v. Seymour, 27 Wn.2d 802 (Wash. 1947) (circumstantial evidence must permit reasonable inference, not mere conjecture)
Grimwood v. University of Puget Sound, 110 Wn.2d 355 (Wash. 1988) (affidavits must contain evidentiary facts, not speculation)
Klontz v. Puget Sound Power & Light Co., 90 Wn. App. 186 (Wash. Ct. App.) (cannot create a genuine issue by contradicting unambiguous deposition testimony)
Little v. Countrywood Homes, Inc., 132 Wn. App. 777 (Wash. Ct. App.) (plaintiff must show harm more probably than not occurred in a way that fixes liability)