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Case 2:13-cv-00433-TSZ Document 31 Filed 09/19/13 Page 1 of 4







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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ALLSTATE INSURANCE
COMPANY,





v.

Plaintiff,

KARI KING and JERRY RIENER,



Defendants.

C13-433 TSZ

ORDER


THIS MATTER comes before the Court on (i) the motion of plaintiff Allstate

Insurance Company (“Allstate”) for summary judgment on defendant Kari King’s

counterclaim, docket no. 21, and (ii) King’s motion for leave to amend her counterclaim,

docket no. 23. Having reviewed all papers filed in support of, and in opposition to, each

motion,1 the Court enters the following order.

Background

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Allstate initiated this declaratory judgment action in March 2013, naming as

defendants Kari King and Jerry Riener. See Complaint (docket no. 1). King and Riener

were, respectively, the plaintiff and the defendant in an action in Snohomish County



1 King’s motion, docket no. 29, to strike portions of Allstate’s reply, docket no. 25, and supporting
declaration, docket no. 26, is DENIED.

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Case 2:13-cv-00433-TSZ Document 31 Filed 09/19/13 Page 2 of 4







Superior Court. In the state court litigation, King sued Riener for negligence based on

events occurring in April 2005 at a house-warming party in Everett, Washington. See

Am. Compl. (Sno. County Sup. Ct. No. 08-2-03183-5), Ex. B to Foley Decl. (docket

no. 26-2). Allstate brought this suit to obtain declaratory relief absolving it of any duty to

defend Riener and any duty to indemnify pursuant to a condominium owner’s insurance

policy issued by Allstate to Riener. In May 2013, King filed a counterclaim alleging that

Allstate’s declaratory judgment action “constitutes an abuse of the litigation process.”

Answer (docket no. 19). On June 13, 2013, a jury rendered a verdict in the state court

matter in favor of King and against Riener in the amount of $25,060. Foley Decl. at ¶ 2

(docket no. 22). Allstate and Riener subsequently reached a settlement pursuant to which

Allstate agreed to indemnify Riener as to the judgment obtained against him by King.

This settlement rendered moot the declaratory judgment action instituted by Allstate, and

the only remaining issue before the Court is King’s counterclaim, concerning which

Allstate now seeks summary judgment. King proposes to amend her counterclaim to

plead malicious prosecution. Allstate opposes King’s motion.

Discussion

Summary judgment shall be granted if no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In

commencing this action under the Declaratory Judgment Act, 28 U.S.C. § 2201, Allstate

had both the right and the obligation to name as defendants the parties to the underlying

state court litigation. See Fed. R. Civ. P. 19(a); Greenwich Ins. Co. v. Rodgers, 729 F.

Supp. 2d 1158, 1164-65 (C.D. Cal. 2010) (in a declaratory judgment action brought by an

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insurer, granting the insured’s motion for compulsive joinder of a passenger injured in the

automobile accident at issue); Colony Ins. Co. v. Events Plus, Inc., 585 F. Supp. 2d 1148,

1156-57 (D. Ariz. 2008) (characterizing as “well-settled” the principle that an injured

person is a necessary party in an action for declaratory judgment concerning insurance

coverage); Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Mass. Mun. Wholesale Elec.

Co., 117 F.R.D. 321, 322-23 (D. Mass. 1987) (declining the underlying claimant’s

motion to be “dropped” as a party in the related declaratory judgment action brought by

the insurer); see also Ga.-Pac. Corp. v. Sentry Select Ins. Co., 2006 WL 1525678 (S.D.

Ill. May 26, 2006) (recognizing that the underlying tort claimant is not a necessary or

indispensable party with regard to the duty-to-defend portion of an insurer’s declaratory

judgment action, but is required to be joined under Rule 19 as to the indemnification

portion of such action). King’s counterclaim, whether pleaded under an abuse of process

or malicious prosecution theory, which is premised solely on Allstate having named her

as a defendant in this declaratory judgment action, has no merit.

Conclusion





For the foregoing reasons, the Court ORDERS as follows:

(1) King’s motion for leave to amend her counterclaim, docket no. 23, is

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DENIED;

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(2) Allstate’s motion for summary judgment, docket no. 21, as to King’s

counterclaim is GRANTED, and King’s counterclaim is DISMISSED with prejudice;

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Case 2:13-cv-00433-TSZ Document 31 Filed 09/19/13 Page 4 of 4





(3) Allstate’s separate request that this action be dismissed pursuant to Federal

Rule of Civil Procedure 41(a)(1)(A)(ii) is DENIED without prejudice; Allstate has not

submitted the requisite stipulation of dismissal signed by all parties who have appeared;

(4) Allstate’s motion for voluntary dismissal is treated as brought under

Federal Rule of Civil Procedure 41(a)(2), which requires the Court to address the status

of Riener’s still pending counterclaim; the parties are DIRECTED to file a Joint Status

Report, within fourteen (14) days of the date of this Order, concerning whether Riener’s

counterclaim may be dismissed with prejudice pursuant to the settlement between him

and Allstate, and whether Allstate’s claim for declaratory relief may be dismissed with

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prejudice and without costs as moot pursuant to Federal Rule of Civil Procedure 41(a)(2);

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and

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(5)

The Clerk is DIRECTED to send a copy of this Order to all counsel of

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record.

IT IS SO ORDERED.

Dated this 19th day of September, 2013.





















A




THOMAS S. ZILLY
United States District Judge















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