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Travelers Casualty Insurance Co. v. Wild Waters, LLC

United States District Court, Ninth Circuit

August 30, 2013

TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA, a Connecticut corporation, Plaintiff,
v.
WILD WATERS, LLC, an Idaho limited liability company, and RIVER HOUSE, LLC, an Idaho limited liability company, Defendant.

MEMORANDUM DECISION AND ORDER

CANDY W. DALE, District Judge.

INTRODUCTION

Travelers Casualty Insurance Company of America (Travelers), and Defendants Wild Waters, LLC, and River House, LLC (Wild Waters), dispute whether the commercial property insurance policy Wild Waters purchased from Travelers covers a vandalism loss Wild Waters suffered on or about September 1, 2011. Travelers filed a motion for summary judgment on May 15, 2013, seeking a declaration that it has no obligation to provide coverage, and the policy excludes Wild Water's damages. The Court conducted a hearing on July 16, 2013. After carefully considering the parties' briefs, oral arguments, the evidentiary record, and the relevant authorities, the Court will deny Travelers' motion.

FACTS[1]

Wild Waters operated a water park in Coeur d'Alene, Idaho. Wild Waters leases the buildings from another entity, the Lavin Family Trust, which owns the water park, and subleases the concessions buildings to River House. Mr. Stacey Lavin was the person responsible for park operations.

Wild Waters customarily operated as a water park open to the public during the summer from Memorial Day in May, to Labor Day in September. Considering the park's location in Northern Idaho, Wild Waters' operation was seasonal, and it closed during the fall, winter, and spring months. At the end of its summer season, park staff would prepare the park for winter, by winterizing the pools, storing equipment, and closing accounts to minimize its expenses during the off season. In March of each year, personnel would prepare to open the park by hiring park personnel, preparing for concession and gift shop sales, and conducting required maintenance and repair of the park facilities, such as gel-coating the waterslides and refinishing the pools.

As early as 2002, Mr. Tim Warner, an insurance broker with Moloney & O'Neill, assisted Mr. Stacy Lavin with obtaining insurance for Wild Waters. (Warner Depo. at 4, 11, Dkt. 29-5.) In 2002, Mr. Warner represented Travelers and presented a quote to Wild Waters for property and casualty insurance. The Travelers policy required renewal on a yearly basis, and expired each year on the 5th of October. (Warner Depo. at 10-12, Dkt. 29-5.)

The Travelers policy issued to Wild Waters covered four buildings leased by Wild Waters. The policy contained a coverage exclusion as follows:

C. LIMITATIONS
The following limitations apply to all policy forms and endorsements, unless otherwise stated.
* * * * *
5. If the building where loss or damage occurs has been "vacant" for more than 60 consecutive days before loss or damage occurs:
a. We will not pay for any loss or damage caused by any of the following even if they are Covered Causes of Loss
(1) Vandalism;
(2) Sprinkler leakage...;
(3) Building glass breakage;
(4) Discharge or leakage of water;
(5) Theft; or
(6) Attempted ...

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