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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  The unpublished part of the opinion also addressed the issue of tendering “undisputed” amounts in the context of UM/UIM claims, which had not been addressed in prior case law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.

 

Appellate Practice Tips

Lether Law Group is engaged in appellate practice across multiple jurisdictions including multiple State Courts of Appeals and the Federal Circuit Courts of Appeal. As any experienced insurance defense litigator knows, a win at the trial level for your client is often not the end of the story. Accordingly, in this week’s newsletter, our office will share some helpful practice pointers we have gained through our litigation in the various Courts of Appeals.

            A Complete Record – The first and most essential step in any appeal is assuring you and your client have the complete trial court record. While seemingly elementary, effective appellate advocacy starts with a complete underlying record. Once the Appellant has designated the clerks’ papers and statement of arrangements, and prior to receiving a copy of those clerks’ papers, proactively cross reference opposing counsel’s designation with the trial court docket. If any relevant pleading is absent, or any potentially relevant pleading is absent from opposing counsels designated clerks’ papers, move to supplement the clerk’s papers. Failure to do so will foreclose an appellate attorney’s ability to argue a potentially relevant issue or procedural aspect before the appellate court.

           Comprehensive Legal Briefing – There is a natural tendency in appellate practice to rely partly upon the briefing at the trial court level because the issues in question were fully litigated. However, it would be an error to rely on the underlying briefing and assume it is sufficient for a review by the Court of Appeals. Rather, effective appellate practice requires a total reassessment of the underlying case from the facts as plead to the citations relied upon by the parties. The loadstar for any appeal is the standard of review. A de novo review by the Court of Appeals will requires a total reevaluation of the underlying case in a manner that a review for abuse of discretion might not. Further, the caselaw relied upon by the parties at the trial court level may have changed in the time since the trial court’s decision and should always be verified as to the holdings they purport. Accordingly, the process of drafting an appeal often requires a ground up reassessment of the facts and law surrounding the trial court’s decision.

            Patience – Appeals take time. The average lifespan of an Appeal is 18 to 24 months. Even after the Court of Appeals receives all briefing from the parties, it will often take 6 to 10 months or more to render a decision on the matter. Given this expansive timeline, it is helpful to communicate reasonable expectations to your client about the resolution their appeal. Further, it is essential to communicate with the client periodically throughout this time to inform them you are monitoring the matter throughout the lengthy appeals process.  

            Lether Law Group currently represents clients in multiple jurisdictions for their appellate matters. For questions regarding acute appeals State Courts of Appeal or the Federal Circuit Courts of Appeal, please feel free to contact our office.

Chris Kranda

Chris Kranda

Associate Attorney

Born and raised in the pacific northwest Chris attended Seattle University’s Matteo Ricci College where he graduated cum laude with a bachelor’s degree in Humanities. He remained in the area and earned his Juris Doctor Seattle University School of Law.

During law school, Chris externed in US District Court for the Western District of Washington for the Honorable Robert S. Lasnik, and later worked as a Rule 9 prosecutor before joining the King County Prosecutor’s Office as a Deputy Prosecuting Attorney. He served in District Court and Violent & Economic Crime Units from 2019 to 2021 before joining Lether Law Group to begin his civil practice.

In his free time, Chris enjoys camping, fly fishing, and road trips.

Happy Valentines from the Ninth Circuit Court of Appeals

Ninth Circuit Court of Appeals, the Court of Appeals which sits directly below the United States Supreme Court and presides over Federal Appellate decisions in a number of Western States, has always been considered a liberal court. This is one of the reasons that insurers are sometimes hesitant to have claims presented to this esteemed Court. Lether Law Group has had the distinction of regularly appearing before this. The Ninth Circuit decided several cases favorably for Lether Law Group and its clients on first property insurance matters during the last two years.

In Clear Creek Retirement Plan II LLC v. Foremost Insurance Company Grand Rapids Michigan, Ninth Circuit Court of Appeals case number 18-357250 (2019), the court was confronted with a highly complex set of facts involving a commercial business transaction involving mobile homes. As result of the business dispute, it was alleged that an ex-business partner “stole” the mobile homes and subsequently re-sold them. As a result, there were significant coverage issues involved as to whether or not the loss involved a “theft” under a commercial property policy and also questions of whether or not Foremost had violated the Washington Insurance Fair Conduct Act. The Ninth Circuit Court of Appeals upheld a Summary Judgement Order in favor of Foremost finding that Foremost’s coverage position was correct and reasonable and that therefore there was no viable IFCA claim. Clear Creek Retirement Plan II LLC v. Foremost Insurance Company Grand Rapids Michigan, Ninth Circuit Court of Appeals case number 18-357250 (2019).

In Benito Cervantes v. Foremost Insurance Company, Ninth Circuit Court of Appeals case number 16-35315, (2018) the Ninth Circuit considered another first party property claim. In the Cervantes case, the issue was whether or not there was coverage and extra contractual exposure arising from claims involving alleged long-term water damage occurring at a rental property owned by the insured. The Ninth Circuit again upheld a Summary Judgement Order in favor of Foremost. The Court found that there was, in fact, no coverage and the insurer’s conduct was reasonable. Of particular interest was that the court held that the issue of whether or not damage was considered short-term or long-term was to be viewed objectively as opposed to reviewing the question from the subjective viewpoint of the insured. Benito Cervantes v. Foremost Insurance Company, Ninth Circuit Court of Appeals case number 16-35315, (2018).

In Live Group of USA, LLC, DBA v. Mid-Century Insurance Company, Ninth Circuit Court of Appeals case number 16-35599 (2018), the Ninth Circuit upheld a Summary Judgement ruling in favor of Mid-Century on a property insurance policy. In Live Group, a number of issues that arose in regard to a coverage regarding a fire loss at an apartment building. These issues included whether the insured was entitled to replacement cost without incurring any actual repair cost, whether the insured presented adequate claims information to support the insured’s business interruption claims, and the typical extra contractual claims. The Ninth Circuit Court of Appeals agreed with the District Court that Mid-Century fully fulfilled its obligations under the policy and the insured was not entitled to further recovery for its contractual or extra-contractual claims. Live Group of USA, LLC, DBA v. Mid-Century Insurance Company, Ninth Circuit Court of Appeals case number 16-35599 (2018).

In each of the above decisions, the Ninth Circuit carefully reviewed the issues that were presented and set forth a well-reasoned ruling in support of an insurer. These decisions underscore why it is important to present to a Federal Court of Appeals cases involving good facts with strong legal issues.

Lether Law Group was pleased to represent each of the insurers and obtained these results from the District Courts and at the Ninth Circuit. If you would like to discuss these cases in further detail, please feel free to contact our office. Lether Law Group has over 30 years in representing insurers and all variety of first party claims, including homeowners claims, commercial losses, and auto claims.

FRCP 26 AMENDMENTS AND THE EFFECTS ON INSTITUTIONAL DISCOVERY

The December 1, 2015 amendments to FRCP 26 focus largely on the proportionality of discovery by expressly outlining factors to be weighed in determining the proper scope of discovery, including the “importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

While courts have long considered the burden created by discovery requests, these amendments affirm the growing importance of proportionality. The Advisory Committee which proposed the changes appears to have been motivated to curb the high costs of discovery, especially those presented due to the increasing role and utilization of electronically-stored information. To that end, FRCP 26(c)(1)(B) was also amended to expressly grant the court’s the authority to make orders regarding allocation of discovery expenses in ruling on protective order motions. The commentary which accompanied the amendments further indicates the motivation of the Advisory Committee, stating:

The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.

These high costs are particularly felt by institutional parties as they are more likely to have voluminous records and data subject to discovery. The amendments to FRCP 26 make the burden of preparing and producing discovery, and the potentially large amount of information, a primary consideration in determining how to proceed with discovery in a given case. They should also provide ammunition for institutional parties to fight back against opposing attorneys who seek to obtain leverage through overly abusive and costly discovery tactics. Until attorneys fully buy-in to the changes, we expect the amendments to FRCP 26 will result in a temporary increase in protective order motion practice initiated by parties seeking to avoid the burdens and abuses meant to be reduced by this new rule.