The opinion of the court was delivered by: The Honorable Manuel L. Real United States District Judge
STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW [Filed Concurrently With Motion For Summary Judgment] Hearing Date: May 4, 2009 Time: 10:00 a.m. Courtroom: 8
After consideration of the papers in support of and in opposition to Plaintiff, Progressive Casualty Insurance Company's, motion for summary judgment and the oral argument of counsel, the Court Determines that the following facts have been established as, UNCONTROVERTED FACTS:
1. Plaintiff, Progressive Casualty Insurance Company was, and is, an Ohio corporation with its principal place of business in Mayfield, Ohio at all material times mentioned herein.
(Declaration of Maria Kawecki (hereinafter Kawecki Declaration"), page 2, lines 9-11.)
2. Defendant and Counter-Claimant, Peter Akaragian (hereinafter Akaragian"), was and is a resident of the State of California, County of Los Angeles at all material times mentioned herein.
(Kawecki Declaration, page 2, paragraphs 2 and 6 and Exhibit A attached thereto.)
3. On or about August 28, 2006, Defendant purchased a 1997 21 foot Schiada River Tunnel boat and tandem trailer (hereinafter the "boat").
(Kawecki Declaration, page 2, paragraphs 4 and 6 and Exhibit A attached thereto; Deposition of Akaragian, page 23, lines 20-24 attached to the Stavin Declaration.)
4. On or about August 31, 2006, Akaragian caused to be submitted an application for insurance with Progressive Casualty Insurance Company through Progressive Direct Insurance Co. Akaragian signed the application on or about September 8, 2006.
(Kawecki Declaration, page 2, paragraph 5.) 5. In reliance on the information set forth in the application, Progressive Casualty Insurance Company caused to be issued a policy of insurance bearing policy no. 14168504-0 with an effective date of August 31, 2006 for a 12 month term insuring a boat described as a 21 foot Schiada bearing hull identification number SMORT238C797. Coverage under Part IV of the insurance policy entitled PHYSICAL DAMAGE COVERAGE "does not apply to any loss:
10. that is due and confined to:
e. mechanical or structural breakdown;" (Kawecki Declaration, page 2, paragraph 6 and Exhibit A attached thereto and page 4, paragraph 13 and the pertinent section of the policy set forth above attached as Exhibit B.)
6. As reported by Akaragian, in and around August 8, 2007, while using the boat on Lake Meade, Akaragian sustained damage to the boat, including its engine. The loss was reported to Progressive Casualty on or about August 16, 2007.
(Kawecki Declaration, pages 2-3, paragraph 7.) 7. Akaragian reported that the boat was running at speed and struck a submerged object causing the engine to race or rev up and then stall. Attempts to re-start the engine failed.
(Kawecki Declaration, page 3, paragraph 8 and Exhibit B attached thereto.)
8. Henry Sahagian had been to Lake Mead, where the incident took place, using his own boat 50 to 60 times before the incident and had never had a problem running aground.
(Stavin Declaration, page 2, paragraph 4 and the attached excerpts from the Sahagian Deposition, page 36, lines 11-18.)
9. Prior to the incident on Lake Mead resulting in this claim, Akaragian had only used the boat 3 or 4 times before on Lake Castaic where the top speed limit was 35mph. On these occasions, Akaragian never drove the boat at 35 mphs for more than a minute or two.
(Stavin Declaration, page 2 paragraph 6 and the attached excerpts from the Akaragian Deposition, page 28, lines 5-13.)
10. Lake Mead does not have a posted speed limit and speed are only controlled in and around the marina area where the posted limit is 5mph and swimming zones.
(Stavin Declaration, page 2, paragraphs 4 and 6 and the attached excerpts from the Akaragian Deposition, pages 28-29, lines 24-2 and the Deposition of Henry Sahagian, page 29, lines 8-16.)
11. The incident on Lake Mead resulting in this claim happened on the second day of the trip and the boat had been used for 3 to 4 ...