Lether Law Group’s Landmark Cases

Over the course of the past 10 years, Lether Law Group has represented hundreds of clients throughout the country, and we are diligently focused on getting them results. We don’t take winning lightly, and this mentality has brought hundreds of wins for our clients. You can read articles about a variety of our previous cases by visiting the blog on our website and browsing through the different categories. The following is a small sample of just a handful of the successful results that we have attamed for our clients in recent years.

The H.D.D. Co. Inc. v. Navigators Specialty Ins. Co–  This case addressed duty to defend under Oregon law arising from a contractual dispute between a general contractor and a subcontractor with regard to a natural gas reservoir expansion project. The general contractor instituted an arbitration against the subcontractor asserting breach of contract claims based on a dispute over payment for work done by the subcontractor. The subcontractor tendered a claim for defense to Navigators. When the tender was rejected, the subcontractor filed a lawsuit against Navigators. The subcontractor argued that the duty to defend was triggered based on allegations asserted in the arbitration regarding project delays and defective work performed by the subcontractor.  After cross-motions for summary judgment were filed by the parties, the United States District Court for the District of Oregon held that Navigators did not owe a duty to defend the subcontractor because the arbitration did not assert a claim for “property damage” caused by an “occurrence” under the terms of the policy.  Rather, the claims asserted against the subcontractor sought breach of contract damages due to an alleged delay in completing the work set forth in the contract. The Court explained that breach of an agreed timeline in a contract is not an “occurrence” or accident and an allegedly defective component installed at the project does not constitute “property damage,” even if the defect resulted in additional project costs.

Baldwin v. Silver – This is a published case from Division III of the Washington State Court of Appeals involving a homeowner’s claims for coverage following a fire loss.  The Court of Appeals decision is particularly important in reinforcing the insured’s burden of proof in regard to claims of bad faith and violation of the Consumer Protection Act.  In support of their claims that a deck needed to be removed and replaced as a result of the insurer’s alleged delays in investigating the loss, the insureds relied solely on a Declaration of one of the insureds.  The Superior Court for Pend O’Reille County and the Court of Appeals found that the self-serving Declaration was insufficient to meet the insured’s burden of proof on the extra-contractual claims.  This holding remains good law and is often cited by practitioners and the courts.

Waters Edge Homeowner’s Associate v. Mid-Century Insurance Company­ – ­An insurance company, properly defending under a reservation of rights does not act in bad faith when it is relying on defense counsel’s evaluation of the claims against the insured when it rejects an unreasonable settlement demand.  This was a highly complex insurance bad faith case involving a covenant judgment settlement, with an assignment of rights, involving construction defect claims at a Vancouver, WA condominium complex.  Regardless, however, of the procedural complexities, the Court of Appeals – Division II – held that the insurer was not placing its financial interests ahead of its insured and affirmed the dismissal of the lawsuit.

Gallagher v. Fire Insurance Exchange ­– This matter was tried to a jury in Skagit County, Washington in January of 2019.  The Plaintiff alleged that the insurer had breached the contract, acted in bad faith, and violated the Insurance Fair Conduct and Consumer Protection Acts in its handling of her homeowners insurance claim following a fire loss.  Although the insurer ultimately paid the policy limits for the damage to the structure, the Plaintiff alleged bad faith in the form of delays and in regard to her Additional Living Expense claim.  The Plaintiff further alleged that she had been exposed to toxic “isocyanites” inside the dwelling when the insurer “forced” her to enter the structure after the loss.  After a two week trial, the jury returned a defense verdict within two hours.

The Standard Fire Insurance Company v. Lange – This was a dispute regarding the availability of Homeowners’ insurance coverage for a suit against the insureds by their now-adult adopted daughter alleging years of sexual and physical abuse.  The insured’s claimed that the exclusions for sexual molestation and corporal abuse should not operate to bar coverage because the efficient proximate cause of the damages being alleged by the underlying plaintiff was the negligent act of leaving certain disclosures out of the insured’s adoption applications that allegedly led to the underlying plaintiff being placed with the insureds.  This argument was rejected on summary judgment and the Court found that there was no coverage available for the claims asserted against the insureds.

Northwest Pipe Company v. Travelers Property Casualty Company of America and The Phoenix Insurance Company (3:17-cv-05098-BHS) – This case addresses an insureds claim for bad faith and Consumer Protection act violations arising from a dispute between the Greater Vancouver Water District and Northwest Pipe Company. Specifically, Northwest Pipe entered into a supply contract with the District for the manufacture and supply of steel liner and grout plugs for the Project. Subsequently, there were multiple failures of the circumferential welds used to seal the grout plugs to the steel liner. As a result, the projects general contractor had to redesign the method for sealing the grout ports. The District alleged that this resulted in a delay in the construction of the Project. Northwest Pipe then tendered a claim to Travelers.

On Summary Judgment, the Honorable Benjamin Settle of the Tacoma District granted Travelers’ summary judgment motion dismissing Northwest Pipe’s bad faith and Consumer Protection Act claims. In Northwest Pipe, Travelers correctly identified a tender from the named insured, agreed to assign counsel, and issued a timely and thorough reservation of rights letter. Northwest Pipe argued that Travelers was obligated to pay for the insured’s personal counsel who had allegedly assisted in the defense of Northwest Pipe. Northwest Pipe also argued that the reservation of rights letter issued by Travelers was untimely. Taking the position that Travelers had denied the claim and had failed to investigate coverage in a reasonable manner, Northwest Pipe argued that Travelers was precluded from raising coverage defenses based upon the doctrine of coverage by estoppel. Judge Settle rejected this argument and denied Northwest Pipe’s motion and granted Travelers’ motion for summary judgment.

The Court found that Travelers was not obligated to respond to the alleged claim for the insured’s personal counsel’s fees and Travelers’ position in regard to that claim was reasonable. The Court also noted that the remedy of coverage by estoppel is a drastic remedy that would not have been applicable even if the court had found a question of fact in regard to the bad faith claim. In regard to the coverage by estoppel issue, the Court’s decision was consistent with the decision in Ledcor Indus. (USA), Inc. v. Mut. of Enumclaw Ins. Co., 150 Wn. App. 1, 10, 206 P.3d 1255, 1261, (2009), wherein the court found that coverage by estoppel does not apply in all cases and that an insured still must establish actual damage for a bad faith claim.

Germack, DDS v. The Dentists Insurance Company – When the COVID-19 pandemic struck in early 2020 and the governor of the State of Washington issued his first, “Stay Home, Stay Safe” Order, businesses immediately turned to their property insurance carriers seeking coverage for Business Interruption losses.  Amongst them was Dr. Mark Germack, a Seattle are endodontist, who claimed that The Dentists Insurance Company (TDIC) should provide him with insurance benefits for the loss of business revenue that he suffered in the early months of the pandemic.  The Germack case was designated as a national class action and implicated billions of dollars in potential claims.  Lether Law Group was successful in first defeating an effort to consolidate the Germack  matter before the Joint Panel for Multi-District Litigation and then in securing a summary judgment ruling from the Western District of Washington finding that there is no coverage available to Dr. Germack under the TDIC policy.  The Court found that COVID-19 does not cause “direct physical loss of or damage to” property and that the policy’s virus exclusion also precludes coverage.  This decision impacts dozens of pending Washington cases and cases throughout the nation.

Clear Creek Retirement Plan v. Foremost Insurance Company of Grand Rapids, Michigan­ –  In this case, the Ninth Circuit Court of Appeals affirmed a Western District of Washington summary judgment grant to Foremost in a claim involving the alleged theft of modular homes in North Dakota.  The insured partnered with a third-party to develop land in North Dakota and to place modular homes on that land in and around areas where the fracking industry had caused a sudden need for additional housing.  The insured get into a lengthy and acrimonious business dispute with the partner, ultimately culminating in the partner selling several of the modular homes in order to cover alleged business losses.  The insured made a claim under a commercial mobile home policy, claiming that the modular homes had been stolen.  Foremost denied the claim on the basis that the actions taken in the business dispute did not constitute a covered “theft”.  The insured then brought bad faith and IFCA claims against Foremost based on the denial of coverage.  The District Court and the Ninth Circuit held that there was no unreasonable denial of coverage or benefits because the loss of the modular homes was no covered and therefore dismissed the bad faith and IFCA claims.

Norris v. Farmers Insurance Company of Washington et al. – In Norris, Division I of the Washington State Court of Appeals addressed an insurer’s and agent’s legal duty in the context of automobile liability insurance. The Washington Courts had repeatedly held that insurance agents and brokers do not have any legal duty to recommend specific policy limits to an insured absent what is commonly referred to as a “special relationship.”  However, before Norris, Division I had not addressed this is in regard to automobile insurance. Regardless, the Court rejected the argument that a duty exists because an insurer has some obligation to train and supervise its agents.   The insureds also argued that marketing materials that had been utilized by agents and Farmers created an implied duty.  The Court likewise rejected this argument, and did not accept the marketing theory as creating a legal duty.

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