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Goldenwest Federal Credit Union v. Cincinnati Insurance Co.

United States District Court, D. Utah

October 28, 2019

GOLDENWEST FEDERAL CREDIT UNION, Plaintiff,
v.
CINCINNATI INSURANCE COMPANY, Defendant.

          MEMORANDUM DECISION AND ORDER

          DEE BENSON, UNITED STATES DISTRICT JUDGE

         Before 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).

         FACTS

         This is 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.)

         In 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. ¶ 18.)

         Cincinnati 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, erosion, ...

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