United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
BENSON, UNITED STATES DISTRICT JUDGE
the court is Defendant's Motion for Summary Judgment.
(Dkt. No. 18.) The motion has been fully briefed by the
parties, and the court has considered the facts and arguments
set forth in those filings. Pursuant to civil rule 7-1(f) of
the United States District Court for the District of Utah
Rules of Practice, the court elects to determine the motion
on the basis of the written memoranda and finds that oral
argument would not be helpful or necessary. DUCivR 7-1(f).
an action to determine insurance coverage. (Complaint, Dkt.
No. 3.) Cincinnati Insurance Company
(“Cincinnati”) is a liability insurance provider.
(Id., ¶ 4.) Eagleridge Tennis Club, Inc. dba
Eagleridge Tennis and Swim (“Eagleridge”), not a
party to this action, maintained a liability insurance policy
through Cincinnati, policy number 000 78 08 (the
“Policy”). (Id.) Goldenwest Federal
Credit Union (“Goldenwest”) is the mortgagee of
the property covered by the Policy. (Id. ¶ 6.)
2014, Eagleridge excavated near a hillside of its property in
an attempt to expand its tennis courts and parking lot.
(Id. ¶ 16.) By cutting away at the hillside,
Eagleridge compromised the stability of the hillside, causing
a landslide on August 5, 2014. (Id.) Eagleridge
submitted a claim for coverage to Cincinnati. (Id.
denied the claim pursuant to a Policy exclusion for
“earth movement”. (Id. ¶ 19.)
Section A. 3 of the Policy defines “covered loss”
as “RISK OF DIRECT PHYSICAL LOSS unless the loss is:
(1) Excluded in Section A. Coverage, 3. Covered causes of
Loss, b. Exclusions.” The referenced section b
Exclusions (1) provides:
We will not pay for “loss” caused directly or
indirectly by any of the following, unless otherwise
provided. Such ‘loss' is excluded regardless of any
other cause or event that contributes concurrently or in any
sequence to the ‘loss.
* * * * *
(b) Earth Movement
1) Earthquake, including any earth sinking, rising or
shifting related to such event;
2) Landslide, including any earth sinking, rising or shifting
related to such event;
3) Mine subsidence, meaning subsidence of a man-made mine,
whether or not mining activity has ceased;
4) Earth sinking (other than “sinkhole
collapse”), rising or shifting including soil
conditions which cause settling, cracking or other
disarrangement of foundations or other parts of realty. Soil
conditions include contraction, expansion, freezing, thawing,