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WASHINGTON COURT OF APPEALS WITHDRAWS OPINION ADDRESSING THE INSURANCE FAIR CONDUCT ACT IN THE CONTEXT OF UM/UIM INSURANCE

 As noted in a previous newsletter, Division Two of the Washington State Court of Appeals issued an opinion on April 19, 2022 in Beasley v. Geico General Insurance Company and Aaron Yaws, No. 54997-2-II, which addressed the meaning of the term “actual damages” under the Washington Insurance Fair Conduct Act (IFCA), RCW 48.30.015 and holding that the term “actual damages” includes noneconomic damages. Beasley v. Geico General Insurance Company and Aaron Yaws, No. 54997-2-II.  The unpublished part of the opinion also addressed the issue of tendering “undisputed” amounts in the context of UM/UIM claims, which had not been addressed in prior case law in Washington.

 Last week, The Court of Appeals withdrew the Beasley opinion in response to a Motion for Reconsideration filed by GEICO. The Order granted the Motion for Reconsideration in part, withdrew the earlier opinion, and advised that a revised opinion would be filed.  To date, the revised opinion has not yet been issued. As a result, there is no information regarding which portion of the prior opinion has been reconsidered. Nevertheless, and as a result of the withdrawal, the earlier Beasley opinion is no longer good law and should be disregarded by insureds and insurers alike. 

Lether Law Group currently represents multiple insurers in coverage litigation in state and federal courts in Washington involving claims under IFCA. If you have questions about the implications of Beasley or general questions in regard to pending insurance claims and compliance with Washington insurance law, please feel free to contact our office.

 

Thomas Lether

Thomas Lether

Founder and Managing Shareholder.

Thomas Lether is a graduate of the University of Puget Sound and the University of Puget Sound Law School. He has been involved in insurance and commercial litigation since 1988. Mr. Lether’s primary clients include numerous National and International insurance companies, several smaller insurers and independent adjusting firms. He also represents a number of contractors, property owners, and business owners. His practice predominantly involves the representation of insurance companies and individuals in the investigation, adjustment and defense of complex coverage matters.

 

THE WASHINGTON STATE SUPREME COURT OVERRIDES A LIABILITY POLICY ON PUBLIC INTEREST GROUNDS

In a recent decision, the Washington State Supreme Court certified a question from the Western District of Washington in Preferred Contractors Insurance Company, Risk Retention Group, LLC v. Baker and Son Construction, Inc. The Court was asked whether a contractor’s liability insurance policy violated Washington public policy.  The certified question was as follows:

When a contractor’s liability insurance policy provides only coverage for “occurrences” and resulting “claims-made and reported” that take place within the same one-year policy period, and provide no prospective or retroactive coverage, do these requirements together violate Washington public policy and render either the “occurrence” or “claims-made and reported” provisions unenforceable?

The Court answered the question in the affirmative, finding that the particular insurance policies at issue violated public policy.

 In the case at hand, the insured was a contractor renovating a hotel. There was a serious injury on the site which resulted in death. The incident occurred on October 31, 2019, during the first policy period. Notice of a potential wrongful death claim was given to the insured on September 23, 2020. The insured notified its carrier on September 25, 2020, during the second policy period.

The carrier denied coverage, at least in part because the occurrence and reporting dates did not occur during the same policy year. The policies at issue provided there was no continuous coverage between renewed policies. The policies were non-retroactive, meaning the retroactive date was set to the first day of each policy.

The Court relied upon RCW 18.27 to outline the public policy at issue.  This statute, in part, requires a contractor to either have insurance or the ability to cover $100,000 for injuries or damage.  This is a prerequisite for registration with the state,  Here, the Court found that the state had an interest in ensuring that contractors are financially responsible for losses caused by negligence, and that insurance is the primary means for ensuring this financial responsibility.  In the eyes of the Court, this interest outweighed the parties freedom to contract. Specifically, the Court stated as follows:

We are mindful that parties to insurance contracts generally should have the freedom to contract. But when the legislature orders contractors to bear financial responsibility for the injuries their negligence may cause and dictates insurance is the preferable method to comply with this mandate, we cannot enforce insurance provisions that render coverage so narrow it is illusory. …insurers should not issue policies that essentially cause contractors to default on their statutorily mandated financial responsibility.

This ruling is limited to narrow, claims made policies.  However, insurance carriers will need to be mindful if they are issuing policies with coverages that may fall short of the financial responsibility laws in a particular state.          

Lether Law Group currently represents multiple insurers in coverage litigation in state and federal courts in a number of states and has experience navigating complex issues such as the one presented here.  If you have questions about the implications of this case or general questions in regard to pending insurance claims, please feel free to contact our office.

Tom Lether

Tom Lether

Founder & Managing Shareholder

Thomas Lether is a graduate of the University of Puget Sound and the University of Puget Sound Law School. He has been involved in insurance and commercial litigation since 1988. Mr. Lether’s primary clients include numerous National and International insurance companies, several smaller insurers and independent adjusting firms. He also represents a number of contractors, property owners, and business owners. His practice predominantly involves the representation of insurance companies and individuals in the investigation, adjustment and defense of complex coverage matters.

 

Congratulations, Tom Lether!

Tom Lether, along with Lether & Associates has been awarded the Washington State Dispute Resolution Award: Insurance Litigator of the Year!

 

The Dispute Resolution Awards identify the main players in what is a fiercely competitive market. With a culmination of peer reviews and in-house research they pinpoint leading individuals and firms across a range of industries. Acquisition International prides itself on the validity of its awards and its winners. They are given solely on merit and recognition of leaders in their respective fields.

Excess and Reinsurance Issues

Excess and Reinsurance Issues are increasingly important topics that are prevalent in insurance litigation across the country. We have knowledge and experience dealing with these complex matters.  If you have any question or concerns please feel free the contact Lether & Associates.

Excess Insurance Issues

Lether & Associates offers a wide array of services for clients dealing with excess insurance issues.  Given the exposures involved in these claims, assessing and advising our clients impacting multiple layers of coverage is crucial.  We have significant experience in dealing with allocation disputes across layers of coverage, exhaustion issues, drop-down issues, primary insurer insolvency issues, self-insured retention issues, and the interpretation of “following form” and “other insurance” provisions.  Lether & Associates represents primary and excess insurers in coverage and contribution actions as well as in direct actions by or against insureds.  We are available to provide comprehensive representation, from consultation through litigation and appeals, on any excess insurance issue.

Reinsurance Issues

As the insurance industry continues to expand, Lether & Associates has become adept at representing clients in the reinsurance market.  Lether & Associates represents both underlying insurers and reinsurers in regard to all manner of reinsurance issues.  We represent clients in navigating the unique standards and practices applicable to the reinsurance market from the inception of claims through their conclusion.  Lether & Associates provides advice as to the operation of reinsurance agreements, the complex coverages provided by those agreements, and the rights and obligations of the parties to those agreements.  Lether & Associates also provides assistance with the drafting, negotiating, structuring, and regulatory approval of reinsurance agreements and forms.

Seahawks Blue and Green in New York

The Empire State building in New York was Blue and Green Monday and Tuesday night as part of the #whosgonnawin promotion put on by Verizon.

This picture was taken by Lether & Associates Attorney Brian Donovan right outside the New York Office.