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New Oregon Decision Will Affect Insurers in Many Ways

The Court of Appeals of the State of Oregon issued a decision on May 10, 2017 in the matter titled Hunters Ridge Condominium Assoc. v. Sherwood Cross, LLC, et al. that could potentially impact future Construction Defect cases in Oregon.

The Hunters Ridge appeal arose out of construction defect lawsuit.  The Plaintiff Condo Association filed suit against the developer and general contractor.  The general contractor then filed third-party claims against several subcontractors.

One subcontractor, Walter George Construction (“WGC”), was insured by American Family (“AmFam”).  WGC tendered the claim to AmFam, who denied coverage based upon a Multi-Unit New Residential Construction Exclusion. Thereafter, WGC failed to appear or answer the Complaint.

Default Judgments were entered against WGC by the developer and general contractor, which included damages, attorneys’ fees, and costs.  The remaining parties settled.  The developer and general contractor, as part of their settlements, assigned claims against WGC to the Plaintiff Condo Association.

A Garnishment Proceeding followed, during which the Condo Association sought to obtain the proceeds of the applicable AmFam policy. Several Motions for Summary Judgment were filed.  Those orders formed the basis of the appeal.

The Trial Court had granted AmFam’s Motion for Summary Judgment on the application of the Multi-Unit New Residential Construction Exclusion.  On appeal, the Condo Association argued the exclusion was ambiguous and therefore could not be construed in favor of coverage.

The subject condo was mixed use – each of the three buildings had dedicated commercial space on the ground floor with residential units above them.  The exclusion defined “multi-unit residential building” as “a condominium, townhouse, apartment or similar structure, each of which was greater than eight units built or used for the purpose of residential occupancy.”

AmFam argued that the condos, which contained more than eight residential units, were subject to the exclusion.  On appeal, the Condo Association argued the exclusion was unenforceable for ambiguity.  It claimed the exclusion could be read to either include or exclude multi-purpose buildings. The Court of Appeals agreed. Specifically, the Court determined the term “residential building” could be interpreted as either a multi-use building, or one that is purely residential.  In light of the ambiguity, the Court reversed the Trial Court’s grant of summary judgment on that issue.

The Court of Appeals also reviewed the Trial Court’s denial of AmFam’s Motion which argued there was no coverage for attorneys’ fees and costs awarded in the underlying judgments.

The awards of fees were based upon the contractual indemnity provisions in the subcontracts, which obligated WGC to indemnify both developer and general contractor.  The Trial Court held that the term “costs taxed against the insured” was ambiguous with respect to whether it included attorneys’ fees.  AmFam appealed.

The Court of Appeals reviewed the fees in two ways.  First, whether the fees were part of the “obligation to pay damages because of ‘property damage’ which the insurance applie[d].”  Second, whether the fees constitute “costs” under the “Supplementary Payments” provision.

The Court determined that attorneys’ fees and costs can potentially constitute covered damages.  The Court recognized that, under Oregon common law, when attorneys’ fees are claimed as consequential damages as a result of tortious or wrongful conduct by a defendant which causes a plaintiff to litigate with a third party, the standard American Rule does not apply.

The Court found that since the claims against the developer and general contractor arose in part from the WGC’s defective work, the insured was therefore liable for some portion of the fees incurred in defending those claims by the Condo Association. The Court concluded that such fees could qualify as consequential damages recoverable against the insured, even in the absence of a contractual indemnity provision.  As consequential damages, the Court reasons, they could be considered “damages because of property damage” within the meaning of the policy.

The Court notes, however, that fees incurred by the developer and general contractor in litigating claims directly against the insured would not qualify as such “damages.” Such fees are not subject to the third-party litigation rule set forth above.

The Court did, however, determine that the fees incurred by the developer and general contractor in pursuing the insured directly may qualify as “costs” under the “Supplementary Payments” provision.  The Court reasoned that since “costs” was not defined, it was required to interpret that term with the use of dictionary definitions.  The Court found that the common definitions of the term “costs” could be construed to either include or exclude attorneys’ fees.  Therefore, the Court held that the term was ambiguous, and ruled in favor of coverage. As a result, the term “costs” was construed to include attorneys’ fees, as well as expert expends, and the Trial Court’s denial of AFM’s Motion for Summary Judgment was upheld.

In addition the issues discussed above, the Court of Appeals reviewed the constitutionality of denying an insurer the right to a jury trial in the context of a Garnishment Proceeding. ORS 18.782 provides that, in a contested garnishment hearing at which the garnishee’s liability is determined, “[t]he proceedings against a garnishee shall be tried by the court as upon the trial of an issue of law between a plaintiff and defendant.” AmFam contended that this statute violated its constitutional right to a jury trial, pursuant to Article 1, Section 17 of the Oregon Constitution.

The Court agreed, and held that the insurer must be given the right to a jury trial as part of a full opportunity to litigate any coverage issues. As a result, the Court found that ORS 18.782 is unconstitutional to the extent it compels parties to a garnishment action to litigate coverage issues to the Court without the ability to elect a jury trial.

This decision obviously impacts several areas of law concerning insurance in the State of Oregon.  If you have any questions or concerns about how this decision may impact any pending or future claims, please feel free to contact our office at any time.

Washington Caselaw Update

On Thursday, April 27, 2017, the Washington Supreme Court issued a new decision that may have a significant impact on the business of insurance in the State of Washington.  The new decision, Xia v. Probuilders Specialty Ins. Co., is the first Washington appellate court decision to apply the “efficient proximate cause” rule to third-party liability insurance claims.
The facts of Xia are relatively straight-forward.  The XiaPlaintiff purchased a home built by Issaquah Highlands 48, LLC.  Soon after moving in, the Plaintiff began feeling ill and it was determined that an improperly installed exhaust vent had been allowing carbon monoxide into the residence.  The XiaPlaintiff filed a personal injury lawsuit against Issaquah Highlands, which tendered the lawsuit to its liability insurer, ProBuilders Specialty Insurance Company. 
ProBuilders denied coverage, including any defense obligation, on the basis of two exclusions – the “townhouse” exclusion and the “pollution” exclusion. The Xia Plaintiff and Issaquah Highlands entered into a consent judgment settlement in the amount of $2 million with a covenant not to execute and an assignment of Issaquah Highland’s rights against ProBuilders to the Plaintiff.  The Plaintiff then brought a bad faith lawsuit against ProBuilders seeking a finding that ProBuilders acted in bad faith in denying the duty to defend.
The King County Superior Court entered summary judgment in favor of ProBuilders based on the townhouse exclusion.  The Washington State Court of Appeals reversed that ruling, but found that the pollution exclusion nonetheless operated to preclude coverage.  The pollution exclusion at issue specifically excludes coverage for any injury:
Caused by, resulting from, attributable to, contributed to, or aggravated by the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants, or from the presence of, or exposure to, pollution of any form whatsoever, and regardless of the cause of the pollution or pollutants.
The Washington Supreme Court accepted review and reversed the Court of Appeals, finding that the “efficient proximate cause” rule applies to the analysis of third-party liability coverage.  The “EPC” rule has been applied for years in first-party property claims.  The rule has never been applied to a liability claim.
The Supreme Court’s analysis begins with a discussion of its historic treatment of pollution exclusions and concluded that the loss at issue was in fact caused by a “pollutant” as that term is defined in the policy and by Washington law.  However, the Supreme Court’s analysis did not stop with that conclusion.
Yet even if the court applies the exclusionary language correctly to the facts at hand, the analysis does not end.  Courts must next consider, whether pursuant to established Washington law, the excluded occurrence is in fact the efficient proximate cause of the claimed loss.
Based on a review of the briefing submitted to the Supreme Court, it does not appear as though any party, nor any of theamici, argued that the efficient proximate cause rule was implicated by the subject claim.  Nonetheless, the Supreme Court discussed the efficient proximate cause rule at length and ultimately concluded that the efficient proximate cause of the loss was not the pollution, but the initial negligent installation of the exhaust vent.  Thus, the Court concluded that the pollution exclusion did not apply.
Like any other covered peril under a general liability policy, an act of negligence may be the efficient proximate cause of a particular loss.  Having received valuable premiums for protection against harm caused by negligence, an insurer may not avoid liability merely because an excluded peril resulted from the initial covered peril.
Having concluded that the loss was not excluded, the Court further found that ProBuilder’s denial was made in bad faith because it had failed to consider the efficient proximate cause rule or the Washington Supreme Court’s prior precedent admonishing insurers against attempting to include policy language that would potentially circumvent the rule.
As a result of these finding, ProBuilders is now facing a substantial judgment that not only includes the $2 million consent judgment, but also potential additional extra-contractual damages, interest, and attorney’s fees. 
The impact of the Xia decision beyond the specific context of the application of the pollution exclusion may be significant.  The decision also begs the question of whether pollution exclusions are ever enforceable in this jurisdiction.  After all, nearly all “property damage” or “bodily injury” caused by pollution can be traced back to some prior act of negligence.  These issues will no doubt by the subject of litigation in the lower courts for years to come. 
The most immediate lesson that may be gleaned from the Xiadecision, however, is the importance of defending under a reservation of rights and bringing a declaratory judgment action where coverage is questionable for a liability insurance claim.  Had ProBuilders defended it could have substantially minimized its exposure while also maintaining the right to seek a judicial determination of its coverage obligations.
If you would like to discuss the Xia matter in further detail, please feel free to contact us at any time.  

About Lether & Associates

Lether & Associates, PLLC is a boutique insurance law firm located on the shores of Lake Union in Seattle, Washington. Our focus is on complex insurance coverage matters in a number of jurisdictions across the United States and internationally. Our attorneys are licensed in Washington State, Idaho, Oregon, Alaska, Ohio, the Federal Courts in all of those jurisdictions, the 9th Circuit Court of Appeals, and the Federal Court for Colorado. The firm also handles cases from all over the United States on a pro hac vice basis. The firm specializes in all types of insurance litigation as well as the litigation of extra-contractual claims.

Thomas Lether our Founder, has been involved in the insurance industry for approximately 30 years. In addition to being an attorney, he acts as a mediator, lecturer, arbitrator, and expert witness on insurance related matters.

Although the firm focuses on complex insurance disputes, Lether & Associates enjoys a healthy sense of humor and outside activities which focus on our waterfront location.

L&A – Leading the way in insurance law through experience, collaboration, and results.

Case Law Update – Washington

A reasonable denial of coverage.  Based on the weight of legal authority, insurers might wonder if such a thing even exists in Washington.  A new decision from the Western District of Washington demonstrates that insurers will not always find themselves in peril after a denial.  In Trofimovich v. Progressive Direct Insurance Company, 2017 U.S. Dist. LEXIS 125328 (W.D. Wa.), Honorable John Coughenour ruled that Progressive’s denial of an auto physical damage claim based on an exclusion for operation of the vehicle for hire was reasonable.  The Court dismissed all contractual and extra-contractual causes of action based on that finding.

Trofimovich involved an accident occurring on June 17, 2016.  After the accident, the insured contacted Progressive and gave a recorded statement.  During that statement, the insured stated that he was working for Lyft, a ride share company, and that he had a passenger at the time of the accident.  The insured further declined Progressive’s offer to arrange towing services based on his belief that Lyft would provide a tow.

The next day, the insured gave a second statement.  In this statement, the insured indicated that the passenger in his vehicle at the time of the loss was not a paying customer.  He claimed that he had given that passenger a ride earlier in the day, but that the ride at issue was being given for free due to a financial hardship on the part of the passenger.

On June 30, 2016, Progressive issued a letter denying coverage based on an exclusion that precluded coverage for damage occurring while operating the vehicle to transport passengers for a fee.

In July, the insured retained counsel, who issued an Insurance Fair Conduct Act Notice alleging that the denial was in violation of the statute.  On July 29, 2016, without amending its coverage position, Progressive agreed to pay the claim.  On August 26, 2016, the insured filed suit alleging breach of contract, bad faith, and violations of IFCA and the Washington Consumer Protection Act.

On Cross-Motions for Summary Judgment on all causes of action, the Court ruled that Progressive’s interpretation of the insured’s initial statement was reasonable.  The Court further held as follows:
Progressive made the choice to reject one of two apparently conflicting statements, something that cannot be uncommon in claims adjusting. This alone does not render Progressive’s denial unreasonable. . .
Thus, the Court concludes as a matter of law that Progressive’s initial denial of coverage was reasonable.

2017 U.S. Dist. LEXIS 125328 at 7-8.

Based on this finding, the Court proceeded to grant Summary Judgment in favor of Progressive dismissing the insured’s causes of action for breach of contract, bad faith, violation of the Consumer Protection Act, and violation of the Washington Insurance Fair Conduct Act.

The Court’s decision in Trofimovich demonstrates that insurers can secure good results in Washington when they play by the rules and act reasonably, basing their decisions on sound reasoning and a straight-forward assessment of the facts.

Lether & Associates proudly represented Progressive in the Trofimovichcase.  A copy of the decision is attached.  If you would like to discuss the case, or any other matter, in further detail, please feel free to contact us at any time.

Oregon Supreme Court Expands Availability of Attorney Fee Awards under ORS 742.061

Oregon Supreme Court Expands Availability of Attorney Fee Awards under ORS 742.061

For years, Oregon’s primary legislative device for compelling prompt settlement of insurance claims has been the availability of an attorney fee award for insureds who recover more than the amount tendered by an insurer within six months of the proof of loss in a lawsuit seeking coverage under ORS 742.061. Prior to the decision in Long v. Farmers Ins. Co. of Oregon, 360 Or 791 (2017), most believed that an insured had to actually obtain a judgment awarding monetary damages in the suit seeking coverage to be entitled attorney fees. However, in Long, the Oregon Supreme Court identified a new way that an insured can obtain an attorney fee award under ORS 742.061, which can apply even if the insured does not prevail in the suit seeking additional coverage.

In Long, the insured submitted a claim under a homeowner’s policy due to a water leak. Farmers promptly paid about $3,000 to the insured for the actual cash value of the claim. Shortly thereafter, the insured submitted estimates indicating that his ACV claim was worth more than $3,000. However, no further payments were made at that time.

About two years later, the insured filed suit against Farmers seeking additional ACV coverage. Farmers subsequently issued two voluntary ACV claim payments following a court-ordered appraisal. On the eve of trial, the insured submitted a proof of loss for his replacement cost claims. Farmers adjusted and paid the RCV claim three days later.

The verdict rendered by the court after trial found that the insured was owed less for his claim than what he received from Farmers before the suit was filed. Accordingly, judgment in favor of Farmers was entered. Nevertheless, the insured filed a petition seeking an award of attorney fees under ORS 742.061. In that petition, the insured argued that he was entitled to an attorney fee award because he “recovered” more than was timely tendered by Farmers based on the voluntary payments issued after the suit was filed. The trial court denied the insured’s petition because it believed that the insured had to obtain a judgment awarding monetary damages to be entitled to attorney fees under ORS 742.061.

On review, the Oregon Supreme Court decided that the “recovery” which must exceed the amount of any timely tenders made by an insurer does not need to be based on a judgment entered in favor of the insured. Accordingly, the Court held that voluntary payments given during litigation can qualify as a “recovery” which triggers entitlement to an attorney fee award under ORS 742.061.

In this case, the Court held that the insured was entitled to an attorney fee award for the work performed by his attorneys up until the time he received the additional ACV claim payments. However, the Court also ruled that the insured was not entitled to any further attorney fees because Farmers paid the RCV claim just days after that claim was submitted and the insured did not recover any more at trial than was timely tendered by Farmers.

The Long case reiterates the importance of determining and paying the full value of a claim within six months of the claim submission because it establishes that subsequent claim payments made during litigation will result in at least some attorney fee exposure. See also Jones v. Nava, 264 Or App 235, 240-241 (2014) (confirming that tenders must be made within six months of proof of loss to avoid attorney fee exposure, even if untimely tender exceeding ultimate recovery is given prior to filing of action). However, the decision is not completely adverse to insurers because it also confirms that the requirements for an attorney fee award must be separately met for each claim submitted, even if claims arise from the same loss.

If you have any questions about this case or how it may affect any of your pending or future claims, do not hesitate to contact our office.

Washington Supreme Court Addresses the Insurance Fair Conduct Act

Washington Supreme Court Addresses the Insurance Fair Conduct Act

Perez-Crisantos v. State Farm et al., Wash. Sup. Ct., No. 92267-5, (February 2, 2017), is perhaps the most favorable ruling for insurers from the Washington Supreme Court in the past several years. The Perez-Crisantos Court was asked to decide whether, in the absence of an unreasonable denial of coverage or benefits, the Insurance Fair Conduct Act (IFCA) creates an independent and private cause of action for an alleged violation of Washington’s Unfair Claims Settlement Practices Regulations. Definitively, the Court held that it does not.

In Perez-Crisantos, the insured was involved in car accident and sustained injuries. The insured was not at-fault and ultimately settled with the at-fault party’s insurance carrier for its policy limits. The insured then tendered a claim for underinsured motorist (UIM) benefits to his insurance carrier, State Farm. State Farm paid its personal injury protection (PIP) limit of $10,000 in medical benefits and $400 in lost wages, but did not pay benefits under the UIM policy, taking the position that the insured had already been made whole. Arguing that State Farm unreasonably denied benefits, the insured sued State Farm alleging violations of IFCA, the Consumer Protection Act (CPA), chapter 19.86 RCW, bad faith and negligence. This lawsuit was stayed while the UIM claim was sent to arbitration.

The arbitrator found that the insured’s damages from the accident totaled $51,000. After adjusting for settlement with the at-fault party, PIP payments, and attorneys’ fees, the insured received $24,000 of new money from State Farm. The stay in the bad faith lawsuit was then lifted. State Farm moved for summary judgment arguing that it had acted reasonably and that the parties had simply had a reasonable disagreement about the value of the claim. The insured moved for partial-summary judgment arguing that State Farm had violated WAC 284-30-330(7)’s prohibition of forcing first party claimants to litigation to recover “amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in such actions.” The Spokane County Superior Court ruled in State Farm’s favor, finding no evidence that State Farm’s actions were unreasonable, and dismissed the case with prejudice.

The insured appealed directly to the Washington Supreme Court, seeking a determination as to whether IFCA creates an independent and private cause of action for an insurer’s technical violation of the Unfair Claims Settlement Practices Regulations in the absence of an unreasonable denial of coverage or benefits.

Like many of the federal courts before it, the Washington Supreme Court struggled with the interplay of paragraphs 2, 3, and 5 of the statute, and ultimately found that the statute was ambiguous. The Court further admitted that the result of an isolated regulatory violation was not clear.

[G]iven that the trier of fact must find that an insurer acted unreasonably under subsection (1), and that such a finding mandates attorneys’ fees under subsection (3) and gives the trial court discretion to award treble damages under subsection (2), it is not clear what a finding of a regulatory violation accomplishes. (emphasis added).

. . .

IFCA explicitly creates a cause of action for first party insureds who were “unreasonably denied a claim for coverage or payment of benefits.” IFCA does not state it creates a cause of action for first party insureds who were unreasonably denied a claim for coverage or payment of benefits or “whose claims were processed in violation of the insurance regulations listed in (5),” which strongly suggests that IFCA was not meant to create a cause of action for regulatory violations.” (Internal citations omitted) (emphasis added).

In finding IFCA ambiguous, the Court then analyzed IFCA’s official ballot title and determined that it was not the legislature’s intent to create a private cause of action for mere technical violations.

This language does not suggest an intent to create a private cause of action for regulatory violations. Quite the opposite: it suggests that IFCA creates a case of action for unreasonable denials of coverage and also permits treble damages in some circumstances. On balance, we conclude that the legislative history suggests that IFCA does not create a cause of action for regulatory violations. (emphasis added).

The Washington Supreme Court then advised that Washington’s current pattern jury instruction on IFCA is a misstatement of the law. The current pattern instruction concludes that IFCA creates a cause of action if an insurer “unreasonably denied a claim for coverage” or “unreasonably denied payment of benefits,” or “violated a statute or regulation governing the business of insurance claims handling.” Based on the foregoing, this instruction is clearly incorrect.

The Perez-Crisantos decision is a rare win for insurers in what has become a very difficult jurisdiction. This decision should prove extremely important as IFCA claims, and IFCA claims premised solely on technical violations of Washington’s insurance regulations, are becoming more and more prominent. To the extent that you have detailed questions about this case or how it may affect any of your pending or future claims or litigation, do not hesitate to contact our office.

Crowthers v. Travelers: The Federal Court Gets It Right Again on IFCA

Crowthers v. Travelers: The Federal Court Gets It Right Again on IFCA

The Washington State Insurance Fair Conduct Act, commonly referred to as “IFCA”, continues to cause significant concern among insurers conducting business in the State of Washington. The lack of any decisions from the Washington State Appellate Courts interpreting or applying the statute has further compounded the uncertainty relating to IFCA.

The Federal Courts, however, have continued to issue rulings on the application of IFCA in a number of scenarios. The trend of these decisions indicates that the Federal Courts are obtaining a better grasp on how IFCA is to be applied. These decisions provide better direction to all insurers and insureds in regard to these claims.

The most recent decision from the Federal Courts is Crowthers v. The Travelers Indemnity Company, United States District Court for the Western District of Washington, 2:16-cv-00606-RSL. In Crowthers, the Honorable Robert S. Lasnik again held that a technical violation of a regulatory provision under the Washington Administrative does not necessarily constitute an IFCA violation. In issuing this holding, the Court referenced the same result reached by Judge Robart in Schreib v. American Family Mut. Ins. Co., 2015 U.S. Dist. LEXIS 118189 (W.D. Wa.). As a result, it appears that the trend in at least the Western District is that an IFCA violation requires an actual unreasonable denial benefits or of coverage, and not simply a technical violation of the regulations.

Judge Lasnik then went on to address the fact that the Plaintiff in the Crowthers case had failed to establish any “actual damages” under IFCA, as well as a lack of any damage claims asserted as to the remaining extra-contractual claims asserted by Plaintiff. The Court held that a failure to establish actual damages as to these extra-contractual causes of action also warranted dismissal of the claims on a summary judgment motion. This decision again underscores the fact that in order to prosecute an IFCA claim, a party must prove actual damages or injuries. This ruling is again consistent with the ruling in Schreib.

The Crowthers case provides excellent legal precedent for insurers to utilize in defending IFCA claims. In fact, at least one court in King County, Washington (Seattle) utilized the Crowthers decision in dismissing an IFCA claim in a separate, highly contested consent judgment case arising from an underlying commercial construction defect matter.

Lether & Associates proudly represented Travelers in the Crowthers matter. If you have any questions in regard to this case, please let us know. In the meantime, a copy of this decision is attached.

On a different note, Lether & Associates is proud to add three new attorneys to the office. Congratulations to Nicole Morrow, Matt Erickson and Ben Miller. Each of our new rising stars brings a great attitude and experience to our team. This includes adjusting experience and defense experience. Our recent growth also means we have added an attorney licensed in the State of California to better service our California client base. Welcome aboard, everyone.