1 – FINDINGS AND RECOMMENDATIONS 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

GERALD SULLIVAN, Personal

Representative of the Estate of John Sullivan, 

deceased, 

Plaintiff, 

v. 

CERTAIN UNDERWRITERS at LLOYDS, 

Subscribing to Policy Number 8024943-09, 

Pursuant to Contract No. PM500, 

Defendant. 

 

Case No. 3:15-cv-00926-YY 

FINDINGS AND 

RECOMMENDATIONS 

YOU, Magistrate Judge: 

INTRODUCTION 

On November 14, 2014, plaintiff filed a wrongful death action against George and Kathy 

Rumberger, Sullivan v. Rumberger et al, Case No. 3:14-cv-01806-YY (D Or Nov 14, 2014), as 

the personal representative to the estate of his deceased son, John Sullivan (“Sullivan”). Sullivan 

died after allegedly slipping from the weather deck of the motor yacht, the Trilogy, while aboard 

as a guest of the vessel’s owner, George Rumberger (“Rumberger”). Rumberger and his former 

wife, Kathy, have a marine ocean insurance policy from defendant, Certain Underwriters at 

Lloyds, which includes hull insurance coverage and protection and indemnity coverage for the 

Case 3:15-cv-00926-YY Document 25 Filed 09/06/16 Page 1 of 12
2 – FINDINGS AND RECOMMENDATIONS 

Trilogy. Complaint, Ex 2.1

 However, on January 11, 2012, defendant refused to defend or 

indemnify the Rumbergers in the wrongful death lawsuit, claiming that the Trilogy was located 

outside the navigational limits of the policy when the accident occurred. Complaint, ¶ 17. In 

response, the Rumbergers assigned to plaintiff their right to sue defendant for defense and 

indemnification under the policy. Plaintiff then filed this action seeking a declaratory judgment 

that defendant breached its duty to defend the Rumbergers by refusing to tender defense in the 

wrongful death action. Id at ¶ 16. 

The parties have filed cross motions for summary judgment (docket ## 14 & 17) on the 

issue of whether the insurance policy covers the location where the accident occurred that 

resulted in Sullivan’s death.2

 Both parties agree that Sullivan was a guest aboard the Trilogy 

when it was moored on the Columbia River adjacent to the City of St. Helens, Oregon, when he 

fell overboard and died. Here, the material facts are not in dispute, so the only issue is whether 

either party is entitled to prevail as a matter of law. 

STANDARDS 

Summary judgment is appropriate when there is no genuine issue as to any material fact 

and the moving party is entitled to a judgment as a matter of law. FRCP 56(a). The initial 

burden is on the moving party to point out the absence of any genuine issue of material fact. 

Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the 

production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. 

 

1

 George and Kathy divorced in November 2011, one month prior to Sullivan’s accident. 

Complaint, ¶ 11 & Ex 3, p 1. The divorce decree awarded George ownership of the Trilogy. Id,

¶ 11. However, both were insureds under the policy. Complaint, ¶ 2, Ex 2, p 1 & Ex 5, p 1 

2

 Defendant’s motion also makes reference to the Trilogy traveling outside the Navigational 

Limit during its transit along the Pacific Coast of Washington south of the 48 degree north 

latitude to the Columbia River, the site of the accident. But the parties have confirmed that the 

reference is not the basis for an alternative argument for denying coverage. 

Case 3:15-cv-00926-YY Document 25 Filed 09/06/16 Page 2 of 12
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Catrett, 477 US 317, 323 (1986). On a motion for summary judgment, the court “draws all 

justifiable inferences in favor of the non-moving party.” Fresno Motors, LLC v. Mercedes Benz 

USA, LLC, 771 F3d 1119, 1125 (9th Cir 2014), citing Anderson v. Liberty Lobby, Inc., 477 US 

242, 255 (1986). 

POLICY PROVISIONS 

Defendant issued Policy No. 8024943-09 (the “Policy”) to the Rumbergers on July 8, 

2011. The Policy was issued for the period of July 8, 2011, through July 8, 2012. Complaint, 

Ex 2, p 1. The Policy insured the Trilogy and the Rumbergers’ potential liability “arising from 

the ownership, maintenance, use, or operation of the” Trilogy. Id, p 6. 

The protections and indemnity coverage provision reads: 

LIABILITY INSURANCE – PROTECTION AND INDEMNITY 

We agree to indemnify the Insured Person against the liability 

imposed by law upon the Insured Person for loss or damage 

arising from the ownership, maintenance, use or operation of the 

Insured Property resulting from bodily injury to or death of any 

person or damage to their property.

Id. The coverage is limited by several conditions: 

INSURING AGREEMENT

We provide the insurance described in this policy and any endorsements 

attached, based on the information declared in the application for 

insurance (including any other supplemental forms, questionnaires or 

declarations), for payment of the premium and subject to the terms and 

conditions set out herein. This policy contains general conditions and 

warranties which apply at all times. The Insurer has agreed to accept 

the risk of insuring the watercraft on the condition precedent that the 

insured will comply strictly and literally with these warranties and 

conditions. 

Complaint, Ex. 2, p 4 (second emphasis added). One of the general conditions is titled 

“Navigational Limits” and reads: “This policy applies only to losses which occur within the 

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4 – FINDINGS AND RECOMMENDATIONS 

navigational limits as stated on the Declarations Page.” Id, p 7. The Declarations Page indicates 

that the Policy specifically includes Navigational Limits WA-3, which states: 

NAVIGATIONAL LIMIT NO. WA-3 

Warranted confined to the use and navigation of Washington and 

British Columbia including the inland lakes and rivers and including 

the west coast of Vancouver Island and the west coast of Queen 

Charlotte Islands, Puget Sound and adjacent waters, and the Straits of 

Juan de Fuca, southeastern Alaska not west of Cape Spencer, but 

warranted not to navigate to: a) on the Fraser River east of the Sumas 

River; b) on the Pacific coast of Washington south of the 48 degree 

north latitude. 

Complaint, Ex 2, p 9. 

FINDINGS 

Defendant has refused coverage asserting that the Rumbergers violated the Navigational 

Limit by using the Trilogy “outside of Washington waters, in Oregon” at the time of the accident 

that led to Mr. Sullivan’s death. (Defendant Certain Underwriters at Lloyds’ Motion for 

Summary Judgment (docket # 14), 2). To determine whether a breach occurred requires 

interpreting the Navigational Limit in the policy, specifically the words that limit use to 

“Washington and British Columbia including the inland lakes and rivers,” and determining 

whether the vessel’s location at the time of the accident was outside that perimeter. 

1. An insurance policy is construed according to its plain meaning unless an 

ambiguity exists. 

Marine insurance contracts are governed by federal admiralty law when there is an 

established federal rule concerning the issue to be decided and by state law when there is not. 

Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 US 310, 313–314 (1955); see also Bohemia, 

Inc. v. Home Ins. Co., 725 F2d 506, 510 (9th Cir 1984)(state law controls an issue of maritime 

contract interpretation only in the absence of a federal statute, a judicially fashioned admiralty 

Case 3:15-cv-00926-YY Document 25 Filed 09/06/16 Page 4 of 12
5 – FINDINGS AND RECOMMENDATIONS 

rule, or a need for uniformity in admiralty practice). Here, the parties agree that Washington 

law applies in construing the terms of the policy.3

Under Washington law, “[t]he court examines the terms of an insurance contract to 

determine whether under the plain meaning of the contract there is coverage.” Kitsap Cty. v. 

Allstate Ins. Co., 136 Wash 2d 567, 576, 964 P2d 1173, 1178 (1998). “[A] contract provision is 

ambiguous when its terms are uncertain or when its terms are capable of being understood as 

having more than one meaning.” Mayer v. Pierce Cty. Med. Bureau, Inc., 80 Wash App 416, 

421, 909 P2d 1323, 1326 (1995); see also Allstate Ins. Co. v. Hammonds, 72 Wash App 664, 

670, 865 P2d 560, 562 (1994)(“[a] clause in a policy is ambiguous when, on its face, it is fairly 

susceptible to two different interpretations, both of which are reasonable”). Under the rule of 

contra proferentem, ambiguities in insurance contracts must be construed against the insurer. 

Labberton v. Gen. Cas. Co. of Am., 53 Wash 2d 180, 183, 332 P2d 250, 252 (1958); see also

Farmers Ins. Co. of Washington v. USF&G Co., 13 Wash App 836, 842, 537 P2d 839, 843 

(1975)(“an interpretation most favorable to the insured must be applied if the policy is fairly 

susceptible to two different interpretations, even though a different...meaning may have been 

intended by the insurer”). 

2. The policy is ambiguous. 

The material fact is undisputed: at the time of the incident, the Trilogy was moored in the 

Columbia River in waters adjacent to St. Helens, Oregon. The parties dispute interpretation of 

the following language from the Navigational Limit of the policy: 

Warranted confined to the use and navigation of Washington 

and British Columbia including the inland lakes and rivers[.] 

 

3

 Defendant’s Amended Response and Reply (docket # 24), 2; Plaintiff’s Reply to Defendant’s Motion for Summary 

Judgment (docket # 23), 1. 

Case 3:15-cv-00926-YY Document 25 Filed 09/06/16 Page 5 of 12
6 – FINDINGS AND RECOMMENDATIONS 

Complaint, Ex 2, p 9 (emphasis added). This language is uncertain or capable of more than 

one meaning. Mayer, 80 Wash App at 421. Thus, the warranty is ambiguous and should be 

construed against the drafter and in favor of coverage of Mr. Sullivan’s claims. 

Defendant argues that the policy restricts navigation to water bodies within 

Washington’s land mass and excludes areas along Washington shores, such as the Columbia 

River. In support, defendant cites the 1990 Black’s Law Dictionary definition of “inland”: 

“Within a county, state, or territory; within part of a land mass.” INLAND, Black’s Law 

Dictionary (6th ed 1990). A more recent edition of Black’s Law Dictionary contains a similar 

definition: “The interior part of a country or region, away from the coast or border.” INLAND, 

Black’s Law Dictionary (10th ed 2014). Defendant contends that, because the Trilogy was not 

moored within Washington’s land mass, it was not located on an “inland river.” 

Alternatively, defendant suggests that the Trilogy was not within Washington’s “inland 

waters” because it was not within the territorial limit of the state, i.e., the Washington side of the 

Columbia River. Defendant cites the Washington Constitution, which provides that 

Washington’s southern border with Oregon starts at the Pacific Ocean and runs “up the middle 

channel” of the Columbia River. Wash Const, Art XXIV, § 1 (emphasis added). The Act of 

Congress Admitting Oregon into the Union in 1859 (1859 Act of Congress) also defines 

Oregon’s boundary as the middle of the Columbia River: 

[From] a point due west and opposite the middle of the north ship 

channel of the Columbia River; thence easterly, to and up the 

middle channel of said river, and, where it is divided by islands, up 

the middle of the widest channel thereof, [ ... ] including 

jurisdiction in civil and criminal cases upon the Columbia River 

and Snake River, concurrently with States and Territories of which 

those rivers form a boundary in common with this State. 

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7 – FINDINGS AND RECOMMENDATIONS 

11 Stat 383 (1859) (emphasis added). The Oregon and Washington Columbia River Compact 

of 1958 does the same. ORS 186.520; RCW 43.58.050. Defendant cites Washington’s 

administrative code governing operation of recreational vessels, which defines the term 

“inland waters” as “waters within the territorial limits of Washington state[.]” Wash Admin 

Code 352-60-020 (emphasis added). Thus, defendant contends, because the Trilogy was moored 

adjacent to St. Helens, along the Oregon shore and on the Washington side of the Columbia 

River, it was not within the territorial limits of Washington when the incident occurred. 

Defendant’s arguments are flawed for a number of reasons. First, the fact that defendant 

suggests two different interpretations of the term “inland rivers” illustrates how the language in 

the Navigational Limit is unclear and subject to more than one interpretation. On the one hand, 

defendant states that the term “inland rivers” is defined as bodies of water within Washington’s 

land mass. Alternatively, defendant contends that the policy could be interpreted to include the 

Washington side of the Columbia River, which would not be within the state’s land mass. These 

interpretations are exclusive of each other, but both are reasonable, thus showing the language is 

ambiguous. 

 Additionally, defendant ignores that a large portion of the Columbia River is completely 

surrounded by land mass, as illustrated in the map below4: 

/// 

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4

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https://commons.wikimedia.org/w/index.php?curid=3844725. 

Case 3:15-cv-00926-YY Document 25 Filed 09/06/16 Page 7 of 12
8 – FIND

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Case 3:15-cv-00926-YY Document 25 Filed 09/06/16 Page 8 of 12
9 – FINDINGS AND RECOMMENDATIONS 

conditions and other factors that affect boating, is it practical that a five ton yacht would navigate 

through the Columbia without ever crossing over the middle of it? Otherwise stated, was it the 

intention of the parties that the yacht would have to hug the Washington shoreline while 

traveling through the Columbia River? “When a court examines a contract, it must read it ‘as the 

average person would read it; it should be given a ‘practical and reasonable rather than a literal 

interpretation’, and not a ‘strained or forced construction’ leading to absurd results.’” Allstate, 

72 Wash App at 667. Defendant’s interpretation of the Navigational Limit challenges common 

sense. 

 Plaintiff’s position is not without its own flaws. Plaintiff cites Nielsen v. Oregon, 212 

US 315 (1909), in which the Supreme Court held that Washington and Oregon have 

concurrent jurisdiction over the entire Columbia River under the 1859 Act of Congress.5

However, jurisdiction is arguably different from geography. See W.J. Jones & Son, Inc. v. 

Stocker, 271 F Supp 437, 438 (D Or 1967)(interpreting the 1958 Compact and noting that 

geography and jurisdiction are distinguishable: “District of Oregon is a jurisdictional entity, 

not a geographical one.”). 

 Plaintiff also cites to numerous Washington statutes and administrative codes, which 

define the “waters of the state” to include rivers within its “jurisdiction”: 

RCW 88.46.010(26): “Waters of the State” includes....rivers 

....within the jurisdiction of the State of Washington; 

RCW 90.48.020: Wherever the words “waters of the state” shall 

be used in this chapter, they shall be used to include....rivers.... 

within the jurisdiction of the State of Washington; 

RCW 90.56.510(27): “Waters of the state” includes....rivers 

....within the jurisdiction of the State of Washington; 

 

5

 This concurrent jurisdiction extends to both states in civil as well as criminal matters. Nielson, 212 US at 320. 

Case 3:15-cv-00926-YY Document 25 Filed 09/06/16 Page 9 of 12
10 – FINDINGS AND RECOMMENDATIONS 

WAC 173-340-200: “Surface water” means....rivers....under 

the jurisdiction of the State of Washington; and 

WAC 352-60-020: “Waters of the State” means any waters 

within the territorial limits of Washington State. 

 Those definitions, however, are for specific Washington laws relating to oil spills and 

water pollution. Given their specific and limited application, they arguably do not inform 

the decision to be made in this case. 

 Plaintiff additionally cites federal law in which the term “inland” is used to describe 

the “waters of the state” over which the state exercises jurisdiction and not only waters 

within a state’s geographical boundaries. Plaintiff cites a series of United States Supreme 

Court cases that defined the extent to which the federal government granted jurisdiction of 

navigable waters to coastal states. See United States v. Maine, 469 US 504 (1985); United 

States v. Louisiana, 394 US 11(1969); United States v. State of Cal., 381 US 139 (1965). Those 

cases defined the boundaries of the states’ inland or internal waters6 within the meaning of the 

Submerged Lands Act of 1953, 43 USC §§ 1301–1356b, through which the federal government 

granted to the states exclusive title and ownership to lands beneath navigable waters. United 

States v. State of Cal., 381 US at 145–46. The Court adopted the definitions contained in the 

Geneva Convention on the Territorial Sea and the Contiguous Zone defining the line marking the 

seaward limit of inland waters of the states. Id at 165–67; United States v. Maine, 469 US at 

512–13. 

 The definitions crafted by the Convention are complicated, but plaintiff relies on the 

general edict that “[w]aters landward of the coastline therefore are internal waters of the State, 

while waters up to three miles seaward of the coastline are . . . within a State’s boundary as part 

 

6

 The cases use the terms interchangeably. See United States v. Louisiana, 394 US at 22. 

Case 3:15-cv-00926-YY Document 25 Filed 09/06/16 Page 10 of 12
11 – FINDINGS AND RECOMMENDATIONS 

of the 3-mile ring referred to as the marginal sea.” United States v. Maine, 469 US at 513. 

Under this definition, arguably any body of water is internal or inland under the Submerged 

Lands Act if it is landward of Washington’s coastline, which is identified as the “line of ordinary 

low water along that portion of the coast which is in direct contact with the open sea and the line 

marking the seaward limit of inland waters.” Id. (citing 43 USC § 1301(c)). Following 

plaintiff’s line of reasoning, all of the Columbia River is landward of Washington’s coastline and 

considered an inland or internal body of water of Washington. 

Defendant interprets this line of cases differently. It argues that the cases actually 

support its argument that the “inland waters” of Washington are those waters on the 

landward side of the territorial limits of Washington State, i.e., the Washington side of the 

boundary between Oregon and Washington that runs down the middle of the Columbia 

River. In any case, these Supreme Court cases have limited applicability for interpreting the 

policy in this case because each answers questions of title to coastal waters off the United States 

coastline and not to interstate river waters. More importantly, these cases only muddy the waters 

of whether the Navigational Limit should be defined by geographical or jurisdictional terms. In 

its dicta, the Court noted the dual influence of geography and jurisdiction in dividing navigable 

waters: “Whether particular waters are inland has depended on historical as well as geographical 

factors.” United States v. Louisiana, 394 US at 23. For instance, the Court noted that “areas of 

water closely connected to the shore, although they do not meet any precise geographical test, 

may have achieved the status of inland waters by the manner in which they have been treated by 

the coastal nation.” Id. Contrary to plaintiff’s claim, a closer look at these cases reveals that 

they do not favor jurisdiction over geography in defining navigable waters. Because ambiguous 

insurance provisions must be construed against the drafter, the Navigational Limit should be 

Case 3:15-cv-00926-YY Document 25 Filed 09/06/16 Page 11 of 12
12 – FINDINGS AND RECOMMENDATIONS 

interpreted such that the policy allows use and navigation over the waters off of St. Helens, 

Oregon, in the Columbia River where the Trilogy was moored at the time of the accident that led 

to Mr. Sullivan’s death.7

RECOMMENDATIONS 

Defendant’s Motion for Summary Judgment (docket #14) should be DENIED and 

Plaintiff’s Motion for Summary Judgment (docket #17) should be GRANTED. 

SCHEDULING ORDER 

These Findings and Recommendations will be referred to a district judge. Objections, if 

any, are due Friday, September 23, 2016. If no objections are filed, then the Findings and 

Recommendations will go under advisement on that date. If objections are filed, then a response 

is due within 14 days after being served with a copy of the objections. When the response is due 

or filed, whichever date is earlier, the Findings and Recommendations will go under advisement. 

DATED September 6, 2016. 

 

 /s/Youlee Yim You 

Youlee Yim You 

United States Magistrate Judge 

 

 

7 In its briefing, defendant correctly argues that enforcement of the contract is subject to strict 

compliance under both federal admiralty law and the terms of the contract. Defendant Certain 

Underwriters at Lloyds’ Amended Response, 2. The court cannot enforce strict compliance of a 

contract where the terms are ambiguous.

Case 3:15-cv-00926-YY Document 25 Filed 09/06/16 Page 12 of 12