U.S. District Court for the Western District of Washington, December 14, 2021
An insurance coverage dispute arose out of an action by Northshore School District against Beresford for a construction project in which Beresford allegedly improperly and negligently disturbed asbestos-containing materials requiring extensive remediation, cleaning, and repairs.
Beresford tendered its defense to Travelers, which denied there was any defense and indemnity coverage based upon asbestos exclusions but agreed to provide a defense under a full reservation of rights. Travelers subsequently conceded that Northshore potentially made a claim for damages outside of asbestos contamination and moved for partial summary judgment as to the asbestos related claims only.
Beresford likewise sought summary judgment in favor of coverage, relying on the “efficient proximate cause rule” set forth in Xia v. ProBuilders Specialty Ins. Co., 188 Wn.2d 171 (2017), which supports a finding of coverage where it is established that a covered occurrence caused an excluded occurrence. In support of this argument, Beresford contended that the work performed by Beresford was “negligent construction” or “initial negligent installation of plumbing” which resulted in the disturbance of the asbestos materials.
The court declined to apply this analysis, finding that the underlying complaint alleged only a single incident, the improper stripping of hard fittings with asbestos containing materials (ACM), which were dropped to the bottom of the wall cavities. The court further noted that the initial peril was the asbestos disbursement, not wall damage, negligent construction, or negligent installation of plumbing. As such, the court found in favor of Travelers and granted partial summary judgment as to the asbestos-related claims.