ORDER

(Motion for Partial Summary Judgment-#40; Counter Motion for Summary Judgment-#45)

ROGER L. HUNT, District Judge.

Before the Court is Defendants, Counterclaimants, and Third-party Plaintiffs Assurance Company of America and Maryland Casualty Company's (collectively "Zurich") Motion for Partial Summary Judgment (#40, filed Jan. 19, 2012). The Court has also considered Counterdefendant and Third-party Defendant National Fire & Marine Insurance Company's Opposition (#44, filed Feb. 13), and Zurich's Reply (#51, filed Mar. 8).

Also before the Court is National Fire's Counter Motion for Summary Judgment (#45, filed Feb. 13). The Court has also considered Zurich's Opposition (#52, filed Mar. 8), and National Fire's Reply (#30, filed Mar. 30).

On May 11, the Court granted Zurich permission to file a Sur-reply and ordered National Fire to respond to the Sur-reply by May 24. (#67.) The Court, therefore, has also considered Zurich's Sur-reply (#68) and National Fire's Response to the Sur-reply (#69).

BACKGROUND

This dispute arises from an underlying construction defect case in Nevada State Court ("State Court") and the insurance policies the parties issued to RB Peterson & Sons Construction Co. Inc. ("RB Peterson"). Zurich insured RB Peterson between 2000 and 2003 under various commercial general liability policies. National Fire then issued a commercial general liability insurance policy that was to be effective between August 18, 2003 and August 18, 2004 (the "National Fire Policy"). However, RB Peterson cancelled the policy on March 17, 2004.

RB Peterson was later named as a defendant in a construction defect lawsuit—Abad, et al. v. Seneca Falls, LLC, et al., Case No. 05A514727 (the "Underlying Action")—in State Court. The plaintiffs in the Underlying Action claimed damages from construction defects including "improperly placed or compacted soils, improperly designed or constructed walkways, driveways, slabs, pads, foundations, exterior masonry site retaining/fence walls, and landscapes." (Dkt. #40, Mot. Ex. 2, Request for Judicial Notice, Ex. 6 Third Amended Complaint in the Underlying Action ¶ 20 (hereinafter, the "Underlying Complaint").) RB Peterson tendered its defense to both Zurich and National Fire. Zurich agreed to defend and indemnify Peterson Construction while National Fire denied coverage based on certain provisions in its policy. Zurich eventually settled RB Peterson's portion of the Underlying Action for $1.3 million dollars.

On July 2, 2011, United National Insurance Company ("United National"), one of RB Peterson's umbrella coverage insurers, filed suit against Zurich American Insurance Company for equitable contribution, equitable subrogation, and declaratory relief. United National later amended the complaint to name Assurance and Maryland rather than Zurich American Insurance Company, apparently Assurance and Maryland's parent company. Zurich (as Assurance and Maryland) then filed counterclaims against United National and National Fire and a third-party complaint against National Fire. The Court denied National Fire's motion to dismiss these claims. Now before the Court is Zurich's motion for partial summary judgment on the issue of National Fire's duty to defend and National Fire's motion for summary judgment on all claims. For the reasons discussed below, the Court grants Zurich's motion and denies National Fire's motion.

DISCUSSION

I. Legal Standard

The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir.1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits "show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). "The amount of evidence necessary to raise a genuine issue of material fact is enough `to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists," Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts." Orr v. Bank of America, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252.

II. Analysis

"An insurance company's duty to defend and/or indemnify its insured arises from the provisions of the insurance policy." Allstate Ins. Co. V. Sanders, 495 F.Supp.2d 1104, 1106 (D. Nev. 2007). Under Nevada law, an insurer "`bears a duty to defend its insured whenever it ascertains facts which give rise to the potential of liability under the policy.'" United National Ins. Co. v. Frontier Ins. Co., Inc., 99 P.3d 1153, 1158 (Nev. 2004) (quoting Gray v. Zurich Ins. Co., 419 P.2d 168, 177 (Cal. 1966)). "The insurer must defend any lawsuit brought against its insured which potentially seeks damages within the coverage of the policy." Allstate, 495 F. Supp. 2d at 1106. Determining whether there is potential for coverage, and thereby a duty to defend, "is achieved by comparing the allegations of the complaint with the terms of the policy." United National, 99 P.3d at 1158. Any attempt to restrict policy coverage (through exclusions, etc.) must be done explicitly. Sullivan v. Dairyland Ins. Co., 649 P.2d 1357, 1358 (Nev. 1982). "In particular, an insurer wishing to restrict the coverage of a policy should employ language which clearly and distinctly communicates to the insured the nature of the limitation." Nat'l Union Fire Ins. Co. v. Reno's Executive Air, 682 P.2d 1380, 1382 (Nev. 1984).

Zurich requests the Court find that National Fire had a duty to defend RB Peterson in the Underlying Litigation arguing that a comparison of the Underlying Complaint to the terms of the National Fire Policy show that there was a potential for coverage under the National Fire Policy. National Fire, in turn, argues that there was no potential for coverage under the National Fire Policy for four reasons: (1) the Underlying Plaintiffs alleged that property damage occurred before the inception of the National Fire Policy; (2) the Underlying Plaintiffs alleged that RB Peterson knew of the property damage prior to the inception of the National Fire Policy; (3) National Fire had no duty to defend against suits alleging property damage caused by subsidence; and (4) National Fire's "Election of Defense" endorsement and "Prior Damages" exclusion negated its duty to defend. The Court will address each of these arguments in turn.

A. The Timing of the Alleged Property Damage

In essence, the Underlying Complaint1 alleges that property damages arose out of construction defects and, possibly, from the repairs undertaken to repair the construction defects. (See, generally Dkt. #40, Ex. 6, Underlying Complaint.) National Fire argues that its Prior Damages Exclusion (which excludes from coverage property damage that occurred, began to occur, or was alleged to occur before the inception of the policy) excludes the damages alleged in the Underlying Complaint because they arise out of the construction defects, which necessarily occurred at or before the completion2 of the construction projects. In essence, Zurich simply argues that it is possible that the damage occurred separately and later than the construction defect.

The Court agrees that the construction defects had to exist at the time the construction projects were completed. It is axiomatic that improper construction cannot take place after the construction is over. However, this does not address when the property damage actually occurred. The Underlying Complaint states: "The defective conditions herein alleged have resulted in damaged and defective real property." This statement could refer to either property damage or diminution in value (which would not be covered by the National Fire Policy which only covers "property damage") and the possibly alleged property damage could have been an immediate consequence of the alleged defects or it could have occurred at almost any time after the completion of construction. For example, an improperly mounted chandelier could fall years after it was improperly mounted, yet the damage to the floor would not occur until the chandelier actually fell. Thus, the Court finds that just because the defects existed before the National Fire Policy incepted, it does not mean that the property damage also occurred at that time.

B. Knowledge of the Property Damage

National Fire also argues that the damages alleged in the Underlying Complaint are not covered under the Prior Damages Exclusion because R.B. Peterson had knowledge of the alleged defects and resulting damage prior to the inception of the National Fire Policy. The Court disagrees that this is a necessary or the only interpretation of the Underlying Complaint's language. The Underlying Complaint states: "the defective conditions were known or through reasonable diligence and experience with the construction should have been known to Defendants. . . at the time of substantial completion of construction . . ." and "[t]hroughout the time period beginning with the completion of construction of the Subject Properties, and continuing to the present, the Defendants, including DOES, and each of them, made repairs and/or representations that repairs would be made to the defective conditions at the Subject Properties." (Dkt. #40, Ex. 6, Underlying Complaint ¶¶ 21-22) (emphasis added.)

The Court reiterates, these paragraphs at most refer to alleged construction defects, not any property damage that may have arose from those defects. Thus, R.B. Peterson may have been fully aware of some alleged defect and yet no property damage may yet have occurred, i.e., R.B. Peterson may only have been aware of a heightened potential for property damage because of a particular construction defect. Further, the Court finds that the language "DOES, and each of them" is too ambiguous, especially considering the "should have known" language from the prior paragraph, to say with any degree of certainty that R.B. Peterson actually knew of any specific defects, much less property damage. Further, even assuming that R.B. Peterson knew of any alleged defects and even assuming that it either promised to make or made certain repairs to particular construction defects, there is still the potential for coverage because property damage may have arisen from the repairs themselves which were apparently ongoing (by the contractor and/or sub-contractors) at the time the Underlying Plaintiffs filed the Underlying Complaint.

C. Subsidence

The "Subsidence Exclusion" in the National Fire Policy excludes from coverage any damages "arising out of, resulting from, caused, aggravated or contributed to, directly or indirectly by the subsidence, settling, sinking, slipping, falling away, caving in, shifting, eroding, mud flow, rising, tilting, or any other movement of land or earth." (Dkt. #40, Ex. 14, National Fire Policy at NFM000013.) National Fire argues that because R.B. Peterson was alleged to have provided the "rough grading and earthwork services" and that some of the construction defects were "improperly placed or compacted soils," the Subsidence Exclusion applies to any alleged property damage. National Fire reads the Subsidence Exclusion more broadly than does the Court. Because insurance policies are contracts of adhesion, courts interpret ambiguous provisions in favor of providing coverage. Powell v. Liberty Mut. Fire Ins. Co., 252 P.3d 668, 672 (Nev. 2011). Whether a provision is ambiguous depends on whether "`it creates reasonable expectations of coverage as drafted.'" Id. (quoting United Nat'l Ins. Co. v. Frontier Ins. Co., 99 P.3d 1153, 1157 (Nev. 2004)). "Ultimately, a court should interpret an insurance policy to `effectuate the reasonable expectations of the insured.'" Id. (quoting Nat'l Union Fire Ins. v. Reno's Exec. Air, 682 P.2d 1380, 1383 (Nev. 1984).

The Court finds that the Subsidence Exclusion is ambiguous. Generally, subsidence exclusions are meant to protect insurers from disasters that affect wide swaths of people and businesses such as earthquakes, floods, and other major disasters. See id. at 673. Here, the Subsidence Exclusion lists multiple naturally occurring types of earth movement and throws on the "any other movement of land or earth" language. However, it would be unreasonable to conclude that R.B. Peterson, a grading contractor that moves land as its business, would consider this language to exclude all of its grading and construction work (and resulting damage) to be excluded from the insurance policy it purchased. If so, it would have been entirely illogical to purchase the policy in the first instance. Therefore, this could not have been R.B. Peterson's intention (or National Fire's original intention for that matter, assuming it dealt with R.B. Peterson in good faith). Since the Subsidence Exclusion is ambiguous, the Court interprets the exclusion narrowly to apply only to "naturally occurring events," id., and not to damages caused by R.B. Peterson's work on the construction project. Thus, the Subsidence Exclusion does not negate the possibility of coverage under the National Fire Policy.

D. The "Election of Defense" Endorsement and "Prior Damages" Exclusion

National Fire's Election of Defense endorsement3 (Dkt. #40, Ex. 14, National Fire Policy at NFM000048) and a portion of its Prior Damages Exclusion4 are escape clauses void as against public policy. In fact, these are both extreme examples of escape clauses. Not only do the endorsements "eliminate National Fire's duty to defend in the event another insurance carrier takes up the insured's defense (as was the case here), National Fire's endorsement[s] eliminate[] its duty to defend even when an insured merely requests a defense from another insurer." McClain v. Nat'l Fire & Marine Ins. Co., 2:05-cv-00706-LRH-RJJ, 2008 WL 5501105 at *5 (D. Nev. June 23, 2008). Thus, for example, an insured who has paid its premiums would lose its coverage from National Fire if it mistakenly requested another insurer to defend a suit that the other insurer did not cover even though National Fire would otherwise have been required to provide coverage. This could happen because of a mere mistake on the insureds part or because the plaintiff misstates a date in the complaint and later amends or the facts turn out to be different than the plaintiff originally believed. Given the fundamental nature of the duty to defend, the Court cannot and will not enforce such provisions. See N. American Bldg. Maint., Inc. v. Fireman's Fins Ins. Co., 40 Cal.Rptr.3d 468, 475 (Cal. Ct. App. 2006) ("It has long been a fundamental rule of law that an insurer has a duty to defend an insured if it becomes aware of, or if the third party lawsuit pleads, facts giving rise to the potential for coverage under the insuring agreement.");5 see also McClain at *5. "An `insured's desire to secure the right to call on the insurer's superior resources for the defense of third party claims is, in all likelihood, typically as significant a motive for the purchase of insurance as is the wish to obtain indemnity for possible liability.'" Pruyn v. Agric. Ins. Co., 42 Cal.Rptr.2d 295, 302-03 (Cal. Ct. App. 1995).

National Fire argues that Zurich should be prevented from making public policy arguments because the same public policy meant to protect insureds does not apply when the dispute exists between insurers. The Court is not persuaded. A void provision is void, not voidable and the public policy against escape clauses such as this is that such clauses should not exist in insurance contracts, not that they should only be voided under particular circumstances. Thus, the Court declares these provisions void and will not apply them to eliminate National Fire's duty to defend R.B. Perterson.

E. Summary

In sum, the Court finds that none of National Fire's four proffered reasons why it did not owe a duty to defend to R.B. Peterson is valid. Thus, the Court finds that National Fire owed R.B. Peterson a duty to defend it. Accordingly, the Court grants Zurich's motion for summary judgment on the issue of National Fire's duty to defend and denies National Fire's counter motion.

CONCLUSION

Accordingly, and for good cause appearing,

IT IS HEREBY ORDERED that Zurich's Motion for Partial Summary Judgment (#40) is GRANTED.

IT IS FURTHER ORDERED that National Fire's Motion for Summary Judgment (#45) is DENIED.