Introducing Two New Attorneys
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2020 has been a historic year for a number of reasons. Unfortunately, most of these developments have not been favorable. As a result of COVID issues, civil unrest issues, and historic wildfires, there have been significant legal issues which have impacted insurers and insureds.
To address these fascinating issues, Lether Law Group announces that it is hosting on its webpage a series of interviews addressing various issues such as COVID exposure, trying cases in 2020 during a pandemic, wildfires, protest claims, and other pertinent and relevant developments which have occurred in the insurance and legal world in 2020. Our first interview involving COVID coverage issues and the impact of COVID on the legal and business community is now available on our webpage at letherlaw.com/covid-19-
We invite everyone to review our webpage and learn a little bit more about Lether Law Group. Please take the time to watch what is hopefully an educational and informative interview as well.
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Earlier today, the Panel for Multi-District Litigation issued an Order denying consolidation of hundreds business interruption coverage lawsuits related to COVID-19.
The Panel held that the allegedly common issues supporting consolidation, “share only a superficial commonality.” The Panel further held that there would be little potential for common discovery and that because each case will involve, “different coverages, conditions, exclusions, and policy provisions purchased by different businesses in different industries located in different states,” the differences in analyzing coverage will overwhelm any common issues.
The Panel held that consolidation would present serious managerial and efficiency concerns that make consolidation inappropriate for these claims.
As a result of this ruling, nearly all of the COVID-19 related business interruption lawsuits filed through the United States will remain in the District Courts where each case originated.
The exception may be for a limited number of insurers. The Panel has asked for additional briefing as to whether insurer-specific MDL’s might be appropriate for Lloyd’s, Cincinnati Ins. Co., the Hartford insurers, and Society Insurance.
Lether Law Group represented The Dentists Insurance Company in opposing MDL treatment for these matters. We are pleased that we were able to obtain this result. If you have any questions or if we can be of assistance on any COVID-19 related matters, including class actions, please feel free to contact us at any time.
Finally, in light of the potentially severe impacts of the COVID-19 pandemic on business throughout the state and country, we expect more complicated valuation disputes.The risk of inflated claims may also increase.
These are just a few of the potential coverage issues raised by the Insurance Commissioner’s announcement and the damage caused during by the recent civil disturbance claims.
In non-coronavirus news, the Washington Office of the Insurance Commissioner has enacted a new Washington Administrative Code trade practice regulation that goes into effect on August 1, 2020. WAC 284-30-770. This new WAC relates to “Adverse Notification Requirements.” Going forward, for any coverage denial, final claim payment if it is less than what the insured claimed, or cancellation, termination, etc., the letter to the insured must contain the following language:
“If you have questions or concerns about the actions of your insurance company or agent, or would like information on your rights to file an appeal, contact the Washington state Office of the Insurance Commissioner’s consumer protection hotline at 1-800-562-6900 or visit www.insurance.wa.gov. The insurance commissioner protects and educates insurance consumers, advances the public interest, and provides fair and efficient regulation of the insurance industry.”
The foregoing language must be in the same font and size of the text of the rest of the letter and must appear either on page 1 or at the end of the letter.
Although the WAC does not go into effect for a couple of months, Lether Law Group is recommending that the above language be added to outgoing adverse claims correspondence immediately.
Also, although technically this WAC would not apply to ROR letters, it may be prudent to add the language to those correspondence as we often find that policyholders will argue that an ROR letter is tantamount to a denial.
New Washington Caselaw
In other developments, on May 7, 2020, the Washington State Supreme Court issued a decision reaffirming its long-held jurisprudence on the duty to defend. Robbins v. Mason County Title Ins. Co., 2020 Wash. LEXIS 288.
In Robbins, the insureds sought defense and indemnity from the title insurance provider on their property in a dispute with a local Native American tribe over the tribe’s claim that it had the right to harvest shellfish on the insureds’ property. The title insurer denied coverage and refused to defend the insureds. The denial was based on the title insurer’s conclusion that the tribe’s claim was an “easement” and that “[a] treaty between the federal government and a Native American Indian tribe is not a record that imparts constructive notice pursuant to Washington law.” Robbins, 2020 Wash. LEXIS 288, *5.
The Robbins’ then sued in Mason County Superior Court alleging breach of contract and bad faith. The Superior Court granted summary judgment in favor of the insurer. The Court of Appeals reversed, finding that not only was there a defense obligation, but also finding that the title insurer had acted in bad faith as a matter of law when it denied the defense. The Supreme Court accepted review of the Court of Appeals decision.
The Supreme Court affirmed, holding that the insurer breached the duty to defend in bad faith. The primary basis for the Supreme Court’s ruling is based on its prior decision in Am. Best Food, Inc. v. Alea London, Ltd., 168 Wn.2d 398, 229 P.3d 693, 2010 Wash. LEXIS 250. Where there is uncertainty in Washington law as to whether a defense is required, an insurer may not adopt its own interpretation of Washington law in order to justify denial of a defense. Because the title insurer in Robbins adopted its own interpretation of the law on a subject that the Washington Court’s had not addressed, the insurer placed its interests ahead of those of its insureds and acted in bad faith.
This result is frankly not too surprising. The Washington Supreme Court has been consistent on its stance on the duty to defend for the better part of the past two decades.
Truck Ins. Exch. v. VanPort Homes, 147 Wn.2d 751, 761, 58 P.3d 276, 282, 2002 Wash. LEXIS 718, *14.
There is, however, one aspect of the Robbins decision that is novel and should be highlighted. The Washington Courts have long held that the duty to defend is triggered by the filing of a Complaint against an insured and the insured’s tender of that lawsuit to its insurer. VanPort, supra., Woo v. Fireman’s Fund Ins. Co., 161 Wn.2d 43, 164 P.3d 454, 2007 Wash. LEXIS 555.
The insurer in Robbins argued that it could not have breached the duty to defend because the tribe’s harvest-rights claim had not been filed as a civil action, but merely was set forth in a demand letter to the insureds. The Supreme Court rejected that argument based on the insurer’s policy language, which stated that the insurer would defend any “claim or suit” to which the insurance applies. There has always been some ambiguity in Washington law regarding this issue and now the Supreme Court appears to have firmly resolved the issue. Insurers with “claim or suit” language should be prepared to assign defense counsel even when the claims against their insureds have not been formalized in a lawsuit.
If you would like to discuss these recent developments in Washington law or any other matters, please feel free to contact us at any time.