Geico Indemnity Company v. University Of Washington ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
UNIVERSITY OF WASHINGTON,
No. 74736-3-1
Respondent,
DIVISION ONE
V.
PUBLISHED OPINION
GOVERNMENT EMPLOYEES
INSURANCE COMPANY d/b/a GEICO
Indemnity Company,
Appellant. FILED: September 11,2017
TRICKEY, A.C.J. — The University of Washington obtained a jury verdict against
Government Employees Insurance Company (GEICO) for violation of the Consumer
Protection Act (CPA), chapter 19.86 RCW. GEICO appeals, arguing that the trial court
abused its discretion when it granted the University's motion to amend its complaint to
add a CPA claim and erred as a matter of law when it allowed the University to even bring
a CPA claim. GEICO also maintains that the trial court abused its discretion when it
denied GEICO's motions for judgment as a matter of law, for a new trial, and remittitur;
that the jury award was so excessive as to be the result of passion or prejudice; and that
the University was not legally entitled to recover attorney fees Incurred for pursuing its
CPA claim. Finding no error, we affirm.
FACTS
In March 2011, Kyle Murphy, a GEICO insured driver, and Officer Ruslan Sattarov,
a University of Washington Police Department (UWPD) officer, were in a two-car accident
in the University District of Seattle, Washington. Murphy drove his vehicle into an
intersection with a green light as Officer Sattarov, responding to a call in his patrol car,
entered on a red light. The cars collided. Officer Sattarov's car crashed into the storefront
No. 74736-3-1/ 2
of American Apparel, causing property damage.
Tyler Lennier was riding in Murphy's car, and UWPD Officer Stefan Pentcholov
was Officer Sattarov's passenger. Officer Sattarov's vehicle injured two pedestrians,
James Howard and Megatron Lawrence. Murphy's insurance policy had limits of $50,000
for property damage and $100,000 for bodily injury per person, up to $300,000 per
occurrence.
GEICO assigned Andrea Kravitz to be its primary claims adjuster for the incident.
The University assigned Wendy Winslow-Nason from its risk management department to
handle the claims. Murphy, Lennier, Howard, Lawrence, and American Apparel all
became claimants of GEICO.
In April 2011, Kravitz notified the claimants that GEICO had determined that
Murphy bore 60 percent of the fault and the University bore 40 percent of the fault. But
Kravitz sent UWPD a letter that stated that Murphy bore 40 percent of the fault and the
University bore 60 percent of the fault. Kravitz did not immediately inform the University
of this discrepancy.
Based on GEICO's representation that the University bore 60 percent of the fault,
Winslow-Nason negotiated with Kravitz to split liability equally between GEICO and the
University (the Agreement). The Agreement would apply to all personal injury and
property damage claims. Both sides believed they were improving their position from 60
percent liability to 50 percent.
Winslow-Nason sent a confirming e-mail to Kravitz, stating, "This confirms that we
have agreed to apportion liability 50/50 in regard to this loss." Kravitz acknowledged the
' Report of Proceedings (RP) (Nov. 9, 2015) at 25.
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e-mail and the Agreement in her claim file.
In June 2011, Zachary Kozma, a new GEICO claims adjuster assigned to the
incident, faxed Winslow-Nason a document disclaiming all liability on behalf of GEICO
until he had completed his investigation. The University received the Seattle Police
Department's Case Investigation Report (CIR) on July 15, 2011. The CIR concluded that
Officer Sattarov's actions were the proximate cause of the collision and attributed liability
to the University.
On July 20, 2011, Winslow-Nason e-mailed Kozma in response to his disclaimer
of liability with attached witness statement summaries from the CIR and a redacted copy
of the CIR. Kozma confirmed the Agreement after receiving the requested information.
It was not until October 2015 that GEICO discovered that Winslow-Nason had access to
the complete CIR by July 15, 2011.2
The parties settled three of the outstanding claims under the Agreement. Winslow-
Nason continued to evaluate the remaining claims under the assumption that the
Agreement between the University and GEICO would apply. In March 2013, Winslow-
Nason told Nathan Broderick, GEICO's new claims adjuster, that she valued Lennier's
claims as up to $20,000, and that GEICO would be responsible for half of that value.
2 During a sidebar at trial, GEICO told the court that it had served the University with a disclosure
request under the Freedom of Information Act and chapter 42.56 RCW and had received
responsive documents on October 21, 2015, Including the complete CIR and a memorandum
Indicating that Winslow-Nason had access to a partial copy of the CIR on July 15, 2011. GEICO
argued that the University improperly withheld information showing that Officer Sattarov was
solely at fault, which impacted GEICO's defense. GEICO had not previously raised this issue to
the court. The University responded that GEICO had previously asserted and then withdrawn a
material misrepresentation defense, that liability for the collision was not relevant to the contract
formation issues in the case, and that Winslow-Nason had no duty to disclose the CIR because
GEICO could have requested a copy from the Seattle Police Department. The trial court stated
that GEICO's arguments regarding the CIR were raised extremely late and that they went to the
liability of the parties and were irrelevant.
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Winslow-Nason agreed to release Murphy from liability in exchange for GEICO
reimbursing the University for the Lennier settlement under the Agreement, and Broderick
stated that the Lennier settlement amount was acceptable. GEICO's next claims adjuster,
Joshua Kipp, confirmed with Winslow-Nason that the University would handle the
outstanding settlements and seek 50 percent reimbursement from GEICO.
In February 2014, Howard filed a lawsuit against GEICO and the University, and
Kipp and Winslow-Nason discussed the possibility of jointly defending the suit. Kipp
later told Winslow-Nason that GEICO wished to defend the suit with its in-house counsel,
but that the parties would cooperate on damages equally.
In September 2014, Winslow-Nason settled Lawrence's personal injury claim for
$19,500 and the University paid the settlement in full. GEICO refused to reimburse the
University. GEICO then refused to honor the Agreement for the Howard and Lennier
claims. In October 2014, Winslow-Nason learned from Murphy's lawyer that GEICO was
taking the position that it was not liable at all for the incident.
The University sued GEICO in April 2015. The University alleged that the
Agreement was a contract, that GEICO had breached the Agreement, and that the
University was entitled to equitable relief. On October 14, 2015, the trial court granted
the University's motion for leave to amend its complaint. On October 20, shortly before
the trial date, the University filed its amended complaint, which added a claim for violation
of the CPA. The University alleged that GEICO's repudiation of the Agreement was an
unfair or deceptive act in trade or commerce that affected the public interest. GEICO filed
an amended answer on October 28, 2015, which generally denied the University's new
claim.
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The trial began on November 4, 2015. Several of the University's claims, including
its breach of contract and CPA claims, proceeded to a jury trial. The court reserved
decision on the University's equitable claims until after trial. GEICO stipulated that its
repudiation of the Agreement occurred in trade or commerce and affected the public
Interest.
The Jury returned a verdict finding in part that the Agreement was a binding contract
between the parties, that GEICO had breached the Agreement and caused the University
$9,750 in damages, and that GEICO had violated the CPA and caused $300,000 in
damages to the University. Relying on the evidence before the jury, the trial court ruled
in favor of the University on its equitable claims.
The trial court denied GEICO's posttrial motion for new trial or remittur for the CPA
claim, and awarded the University $495,033.75 in attorney fees incurred in pursuing its
non-equitable claims.
GEICO appeals.
ANALYSIS
Motion for Leave to Amend Complaint
GEICO contends that the trial court abused its discretion when it granted the
University's motion to amend its complaint to add a claim for violation of the CPA.3
Because GEICO possessed most of the evidence underlying the University's CPA claim
3 GEICO also briefly argues in its opening brief that it was prejudiced when the trial court denied
Its request for a continuance to conduct discovery, but does not offer legal authority supporting
this argument. An issue raised In a party's opening brief but unsupported by legal authority Is
waived. RAP 10.3(a), (b). We conclude that GEICO has waived its assignment of error to the
trial court's denial of its request for a continuance.
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and the CPA claim relied on nearly identical evidence as the University's breach of
contract claim, we disagree.
After a responsive pleading is served, a party may amend its pleading only by
leave of the court or by written consent of the adverse party, and such leave shall be
freely given when justice so requires." CR 15(a). A party's response to the amended
pleading is due within the shorter of he time remaining for response to the original
pleading or within 10 days after service of the amended pleading? CR 15(a). CR 15 is
"'designed to facilitate the amendment of pleadings except where prejudice to the
opposing party would result.'" Caruso v. Local Union No. 690, 100 Wash. 2d 343, 349, 670
P.2d 240 (1983) (quoting United States v. Houqham, 364 U.S. 310, 316, 81 S. Ct. 13, 5
L. Ed. 2d 8 (1960)).
The court should deny a motion to amend a complaint only when the amendment
would prejudice the nonmoving party. Wilson v. Horsley, 137 Wash. 2d 500, 505, 974 P.2d
316 (1999). Factors relevant to analyzing whether allowing an amendment would
prejudice the nonmoving party Include undue delay, unfair surprise, and jury confusion.
Wilson, 137 Wash. 2d at 505-06. A trial court's decision to grant or deny a motion for leave
to amend is reviewed for an abuse of discretion. Wilson 137 Wash. 2d at 505.
The fact that an amendment may introduce a new issue is insufficient, by itself, to
require denial of a motion to amend. Bowers v. Good, 52 Wash. 384, 386, 100 P. 848
(1909). Instead, the court examines whether a party would be "prepared to meet the new
issue? Bowers, 52 Wash. at 386. If a new claim or issue is added through the
amendment, similarities between the elements or evidence relied upon for the existing
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No. 74736-3-1 / 7
and new claims weigh against a finding of prejudice. See, ext., Kirkham v. Smith, 106
Wash. App. 177, 181, 23 P.3d 10 (2001).
In opposing the University's motion to add a claim for violation of the CPA, GEICO
argued that the new claim was unsupported by facts or law. GEICO did not provide
specific arguments that it would be prejudiced by the amendment; GEICO focused on the
University's alleged lack of justification for the amendment and GEICO's cooperation
during discovery.
The trial court did not abuse its discretion when it granted the University's motion
to amend. GEICO was not prejudiced by undue delay because GEICO itself withheld the
evidence underlying the University's CPA claim until late in the discovery process.4 This
Included internal GEICO documents and correspondence, depositions of GEICO
employees and witnesses, and the reneging adjustor's prior history of similar conduct
For a similar reason, GEICO cannot argue undue surprise, as it was aware of the
evidence it held and it cannot rationally be surprised by the addition of a new claim relying
on that evidence following its disclosure.
Further, the University's breach of contract and CPA claims relied on nearly
Identical testimony and evidence. In a breach of contract action, the plaintiff must prove
that a valid agreement existed between the parties, the agreement was breached, and
the plaintiff was damaged. Lehrer v. State, Dep't of Social & Health Servs., 101 Wash. App.
509, 516, 5 P.3d 722 (2000). To prevail on a private CPA claim, a plaintiff must establish
that the defendant engaged in "(1) [an] unfair or deceptive act or practice; (2) occurring in
' In September 2015, Jon Morrone declared that recent discovery, Including deposing relevant
witnesses from both sides, revealed reasonable grounds to support a claim for promissory
estoppel and violation of the CPA.
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No. 74736-3-1/8
trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her business
or property; (5) causation." Hangman Ridge Training Stables, Inc. v. Safeco Title Ins,
Co., 105 Wash. 2d 778, 780, 719 P.2d 531 (1986). Breach of a private contract may affect
the public interest and, thus, be actionable under the CPA. Hangman Ridge, 105 Wash. 2d
at 790.
The University's breach of contract and CPA claims both required a showing of
damages and causation. GEICO stipulated that its act of repudiating the Agreement
occurred in trade or commerce and affected the public interest. Thus, the only difference
between the University's breach of contract and CPA claims was whether the breach of
the Agreement was an unfair or deceptive act or practice within the meaning of the CPA.
Because the unfair or deceptive practice element of the University's CPA claim was based
on the breach of the Agreement and GEICO stipulated that its act occurred in trade or
commerce and affected the public interest, we conclude that the difference between the
elements of the claims Is Insufficient to show that GEICO would not be prepared to meet
the new issue at trial.
GEICO argues that the trial court manifestly abused its discretion because the
University filed its motion to amend after the discovery cutoff, the trial court refused to
reopen discovery, the amended complaint expanded the damages available to the
University, and the amendment was contrary to existing law. GEICO analogizes to In re
Estate of Lowe, 191 Wash. App. 216, 361 P.3d 789 (2015), review denied, 185 Wash. 2d 1019
(2016). In Lowe, a party filed a motion seeking court permission to file a second amended
and supplemental petition less than a month before the start of trial. 191 Wash. App. at
223. The Court of Appeals noted that the party's motion was actually a motion to amend,
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No. 74736-3-1/9
as it did not seek to include claims arising from transactions arising after the latest
pleading. Lowe 191 Wash. App. at 227. The Court of Appeals held that the trial court did
not abuse its discretion in denying the party's motion, as the parties engaged in prolonged
discovery and the motion was filed less than one month before trial. Lowe, 191 Wash. App.
at 227-28.
GEICO's argument is not persuasive. Although both here and in Lowe a party
moved to file an amended complaint close to the trial date after prolonged discovery, the
present case Is distinguishable. For example, Lowe did not involve an added claim that
relied on nearly-identical evidence and was delayed due to the nonmoving party's own
actions. Thus, we reject this argument.
GEICO argues that it was prejudiced by the addition of the CPA claim because it
allowed the University to recover attorney fees and treble damages that would not have
been available under its breach of contract claim. It does not offer legal authority in
support of this argument. The fact that the University could recover attorney fees and
damages if It prevailed on its new claim does not show that GEICO suffered from undue
delay or unfair surprise, or that it would be unprepared to address the new claim at trial.
Rather, these arguments pertain to the damages that would be available to the University
if it prevailed on the merits of the claim. GEICO's unsupported arguments are insufficient
to show that it was prejudiced by the new claims making treble damages and attorney
fees available to the University.
GEICO also argues that it was prejudiced by the trial court's refusal to continue
discovery on the newly-added claim or allow GEICO to bring motions addressing the
claim. GEICO does not cite legal authority in support of this claim and does not connect
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No. 74736-3-1/10
It to its argument that the trial court abused its discretion when it granted the University's
motion to amend. We decline to address this argument. RAP 10.3(a)(6).
Private CPA Claim
GEICO maintains that the trial court erred as a matter of law by allowing the
University to bring a CPA claim against it because the University was not one of GEICO's
insureds.5 The University responds that it did not have to be an insured of GEICO to
bring a private citizen CPA suit. Because anyone may bring a private CPA violation claim
against a party who injures them and the University did not base its claim on GEICO's
breach of the duty of good faith or insurance regulations, we conclude that the University
was a proper party to bring a private CPA claim against GEICO.
The CPA prohibits "[u]nfair methods of competition and unfair or deceptive acts or
practices In the conduct of any trade or commerce." RCW 19.86.020. The CPA allows
m[a]ny person who is injured in his or her business or property by a violation' of the act to
bring a CPA claim." Panag v. Farmers Ins. Co., 166 Wash. 2d 27, 39, 204 P.3d 885 (2009)
(emphasis omitted) (quoting RCW 19.86.090). "'[P]erson' includes . . . all political
subdivisions of the state." RCW 19.86.090.
"Miolations of the regulations applicable to [the insurance industry and the debt
collection industry] implicate the public interest and constitute a per se violation of the
CPA." Panaq 166 Wash. 2d at 43. "[A private] CPA action may be brought by one who is
not in a consumer or other business relationship with the actor against whom the suit is
brought? Panaq 166 Wash. 2d at 43-44; see Hangman Ridge, 105 Wash. 2d at 780.
5 GEICO raises a similar argument In support of its contention that the trial court erred in denying
its motions for judgment as a matter of law, analyzed below. For the reasons stated in this section,
we conclude that the trial court did not err.
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The University brought its claim for violation of the CPA under chapter 19.86 RCW.
The University is a political subdivision of the state of Washington, and it was alleging
harm to its business or property based on GEICO's repudiation of the Agreement. Thus,
the University was a proper party to bring a private CPA suit against GEICO.
GEICO argues that only an insured may bring a claim of bad faith against an
Insurance company. GEICO relies on the rule that third party claimants may "not sue an
Insurance company directly for [an] alleged breach of [the] duty of good faith under a
liability policy." Tank v. State Farm Fire & Cas. Co., 105 Wash. 2d 381, 391, 715 P.2d 1133
(1986); WAG 284-30-300 through -600. Similarly, a "[CPA] claim against an insurance
company for breach of its duty to exercise good faith under RCW 48.01.030 is limited to
the insured." Green v. Holm, 28 Wash. App. 135, 137, 622 P.2d 869 (1981); see also
Panaq, 166 Wash. 2d at 43 n.6 ("Only an insured may bring a CPA claim for an insurers
breach of its statutory duty of good faith.").
The cases cited by GEICO do not apply to private CPA claims.° The University
brought a private CPA claim against GEICO. The trial court did not allow the University
to pursue a per se CPA action for breach of insurance claims handling regulations. And
the University did not proceed on a bad faith theory under the CPA. Rather, the University
brought its claim for violation of the CPA under chapter 19.86 RCW. Thus, the University
did not have to be an insured of GEICO in order to bring its private CPA claim. We
conclude that the University was a proper party to bring a private CPA claim against
GEICO.
8 In its reply brief, GEICO argues that stare decisis requires a finding in favor of GEICO on whether
the University Is a proper party to bring a CPA violation claim. Because GEICO raises this for the
first time in its reply brief, we decline to reach this argument. Cowiche Canyon Conservatory v.
Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549 (1992).
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No. 74736-3-1 112
Judgment as a Matter of Law
GEICO argues that the trial court erred when it denied its motions for judgment as
a matter of law. Specifically, it argues that the trial court should have dismissed the
University's CPA claim because the University did not present evidence showing that
GEICO engaged in an unfair or deceptive act or practice or that the University's business
or property was damaged. Because substantial evidence was presented that could
sustain a verdict for the University, we disagree.
"Granting a motion for judgment as a matter of law is appropriate when, viewing
the evidence most favorable to the nonmoving party, the court can say, as a matter of
law, there is no substantial evidence or reasonable inference to sustain a verdict for the
nonmoving party." Sing v. John L. Scott. Inc., 134 Wash. 2d 24, 29, 948 P.2d 816 (1997);
CR 50(a)(1). A party seeking judgment as a matter of law may submit a motion at any
time before submission of the case to the jury. CR 50(a)(2). If the court does not grant
a motion for judgment as a matter of law at the close of the evidence, the movant may
renew its motion for judgment as a matter of law following the jury's verdict. CR 50(b).
This court reviews an order on a motion for judgment as a matter of law de novo,
and applies the same standard as the trial court. See Schmidt v. Coogan, 162 Wash. 2d
488, 491, 173 P.3d 273 (2007). A motion for judgment as a matter of law admits the truth
of the opponent's evidence and all reasonable inferences that can be drawn from it.
Queen City Farms. Inc. v. Cent. Nat'l Ins. Co., 126 Wash. 2d 50, 98, 882 P.2d 703 (1994)
(quoting Douglas v. Freeman, 117 Wash. 2d 242, 247, 814 P.2d 1160 (1991)).
The CPA prohibits unfair or deceptive acts or practices in trade or commerce.
RCW 19.86.020. "Any person who is injured in his or her business or property by a
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No. 74736-3-1/13
violation of [the CPA] . . . may bring a civil action in superior court" for damages. RCW
19.86.090. To prevail in a private CPA action, a plaintiff must establish "(1) unfair or
deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact;
(4) injury to plaintiff in his or her business or property; (5) causation." Hangman Ridge,
105 Wash. 2d at 780.
Unfair or Deceptive Act or Practice
GEICO asserts that the University presented no evidence that GEICO engaged in
an unfair or deceptive act or practice! Because GEICO's repudiation of the Agreement
and Kravitz's misrepresentation to the University could both be unfair or deceptive acts
or practices, we disagree.
A plaintiff is not required to show that the defendant intended to engage in unfair
or deceptive practices or that actual deception occurred. Keyes v. Bollinger, 31 Wash. App.
286, 292, 640 P.2d 1077 (1982); Dwyer v. J.I. Kislak Mortg. Corp., 103 Wash. App. 542,
546-47, 13 P.3d 240 (2000). To be actionable under the CPA, a defendant's act or
practice "need have only a tendency or capacity to deceive a substantial portion of the
purchasing public." Keyes 31 Wash. App. at 292.
Breach of a private contract may affect the public interest, and thus be actionable
under the CPA, if additional plaintiffs "have been or will be injured in exactly the same
fashion." Hangman Ridge, 105 Wash. 2d at 790; see also Travis v. Wash. Horse Breeders
Ass'n. Inc., 111 Wash. 2d 396, 406-07, 759 P.2d 418 (1988) (sellers practices, which were
custom and usage in the trade, led to sale of unsound horses and thus were sufficient to
7 GEICO contends that the University did not present specific evidence that GEICO's acts or
omissions affected policyholders, that GEICO did not have enough time for effective discovery,
and that the University asserted a basis for its CPA claim In its opening statement that it did not
later support at trial. GEICO does not offer significant argument In support of these assertions.
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No. 74736-3-1/14
show that the seller's acts had the capacity to deceive a substantial portion of the public).
The trial court did not err when it denied GEICO's motions for judgment as a matter
of law based on the University's alleged failure to offer evidence showing an unfair or
deceptive act or practice of GEICO. Viewing the evidence in the light most favorable to
the University, both GEICO's repudiation of the Agreement and Kravitz's
misrepresentation of the apportionment of liability between the parties had the capacity
to deceive a substantial portion of the public.
Arrangements similar to the Agreement are common in the insurance industry.
GEICO offered testimony that it had previously altered agreements during the course of
settling claims, and that it considered the Agreement an "idea."8 But the Agreement does
not contain any language allowing later modification. GEICO does not offer evidence
beyond its self-serving testimony to show that the parties intended or knew that the
Agreement could be unilaterally modified or repudiated over the course of the
settlements. Therefore, although it may be the case that such arrangements are common
In the insurance industry, when viewing the evidence in the light most favorable to the
University, GEICO has not shown that its repudiation was not an unfair or deceptive
practice in the insurance industry.
Winslow-Nason and Kravitz entered into the Agreement on April 28, 2011, which
was confirmed via an e-mail reading, "This confirms that we have agreed to apportion
liability 50/50 in regard to this loss.'"a This does not allow either party to unilaterally
abandon the Agreement. GEICO's repudiation of the contract after larger claims were
filed had the capacity to deceive the University and a substantial portion of the public.
° RP (Nov. 12,2015) at 468.
9 RP (Nov. 9, 2015) at 25; RP (Nov. 10, 2015) at 158.
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The record contains substantial evidence to support the University's argument that
GEICO's repudiation of the Agreement was an unfair or deceptive act or practice in
violation of the CPA. Furthermore, the repudiation of the Agreement, if allowed, would
harm future plaintiffs in exactly the same fashion. Thus, the breach of the Agreement,
although arguably a private contract, would affect the public interest and may, therefore,
support a CPA violation claim.
Similarly, Kravitz's misrepresentation could form the basis of an unfair or deceptive
act or practice actionable under the CPA.1° Citing to the testimony of Winslow-Nason,
GEICO argues that a reasonable jury could not conclude that the University had
established that Kravitz's misrepresentation was a basis for a CPA violation. But Kravitz's
misrepresentation was sufficient to cause the University to enter into a liability-sharing
agreement that apportioned more liability to itself than GEICO had determined was
appropriate. Because this type of misrepresentation had the capacity to deceive and
could harm future plaintiffs in the same fashion, it serves as an additional basis that the
jury could use to find that GEICO had engaged in an unfair or deceptive act or practice in
violation of the CPA.
GEICO takes the position that its business decisions, standing alone, are
insufficient for establishing an unfair or deceptive act or practice under the CPA.
10 In Its reply brief, GEICO argues that 'reasonable minds could reach but one conclusion: that
Mrs. Kravitz made a typographical error that was remedied less than two days later on April 14,
2011, when the University received a follow up letter from GEICO [showing the correct liability
split]." Reply Br. of Appellant at 12 (citing RP (Nov. 17, 2015) at 668)). This does not address
why Winslow-Nason agreed to, and repeatedly stood by, the Agreement splitting liability evenly
between the University and GEICO. Taking the evidence in the light most favorable to the
University, Kravitz's misrepresentation was not a scrivener's error and the jury could find that this
was sufficient to show that GEICO engaged in an unfair or deceptive practice. The trial court did
not err in allowing the jury to consider the University's CPA claim.
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GEICO cites a Washington Pattern Jury Instruction in support of this argument,
which states that the CPA does not prohibit acts or practices that are reasonable to
developing business. 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CIVIL 310.02, at 31-32 (6th ed. Supp. 2013) (WPI) (based on RCW
19.86.920). The comments to the Instruction state that an act or practice is unfair if it is
likely to cause substantial injury to consumers and is not reasonably avoidable or
outweighed by countervailing benefits. WPI 310.02, cmt. at 32. In its reply brief, GEICO
argues that its repudiation of the Agreement was reasonably related to the development
and preservation of its business because its later investigations showed that it was not
50 percent at fault.
"The pattern [jury] instructions are not authoritative primary sources of the law" and
are not binding on trial courts. WPI 010, at 3 (6th ed. 2012). GEICO does not offer legal
authority in support of this argument beyond the pattern jury instructions. Moreover,
GEICO does not credibly establish how its repudiation of the Agreement was reasonably
related to developing its business, would not result in substantial injury to consumers, or
was outweighed by its resulting benefits. This argument is unpersuasive.
GEICO contends that the University acted unfairly or deceptively when it failed to
disclose the entire Seattle Police Department CIR in a timely manner." If GEICO had
brought its own CPA claim, or some other claim, this could be evidence against the
University. But since GEICO did not receive the CIR until well after it repudiated the
Agreement, it could not have been a justification for GEICO's repudiation and, therefore,
" When it brought this argument to the trial court In the middle of trial, the trial court noted that
GEICO was not asking for any remedy other than possibly having more latitude to cross-examine
Winslow-Nason. And, as noted above, the trial court barred argument about the CIR report
because it was irrelevant to the Issues presented in the case.
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No. 74736-3-1 / 17
is not relevant to the University's claim.
Injury
GEICO argues that the University did not present evidence showing that it had
suffered an injury proximately caused by GEICO through alleged unfair or deceptive
practices. Because the record contains substantial evidence or a reasonable inference
that GEICO's practices caused the University to bear the full cost of the Lawrence
settlement, in addition to other expenses, we disagree.
Injury to property or business is broadly construed, and is not restricted to
commercial or business injury. Keyes, 31 Wash. App. at 296. Even minimal injury is
sufficient to meet the damages element of a CPA claim. Mason v. Mortq. America, Inc.,
114 Wash. 2d 842, 854, 792 P.2d 142 (1990). Costs incurred in investigating an unfair or
deceptive act are sufficient to establish injury. State Farm Fire & Cas. Co. v. Huvnh, 92
Wash. App. 454, 470, 962 P.2d 854 (1998); Siqn-O-Lite Skins, Inc. v. DeLaurent' Florists,
Inc 64 Wash. App. 553, 563-64, 825 P.2d 714 (1992) (inability to tend to store as normal
due to defendant's unfair or deceptive acts was sufficient to support an inference that
some injury occurred).
Winslow-Nason settled the Lawrence claim for $19,500 and the University paid the
settlement in full. GEICO refused to reimburse the University in accordance with the
Agreement. Therefore, the University incurred a cost of $9,750 that it had expected would
be paid by GEICO. The jury unanimously found that this was a breach of the Agreement
and awarded $9,750 to the University in damages. GEICO does not challenge the jury's
verdict. This alone is sufficient to show that GEICO's repudiation of the Agreement
17
No. 74736-3-1/ 18
caused an injury to the University.12 In addition, after GEICO repudiated the Agreement.
VVinslow-Nason had to spend time and effort on the Howard and Lennier claims instead
of attending to her normal duties. Therefore, there was substantial evidence or a
reasonable inference on the injury element of the CPA claim to sustain a verdict for the
University.
GEICO argues that the University may not premise its CPA claim on GEICO's
conduct during the litigation between GEICO and the University, analogizing to Blake v.
Federal Way Cycle Center, 40 Wash. App. 302, 698 P.2d 578 (1985). In Blake, the plaintiff
argued that the defendants' conduct after the lawsuit was filed supported its CPA violation
claim. 40 Wash. App. at 311-12. The court rejected this argument, holding that conduct
during litigation was within the purview of the court, and did not occur within trade or
commerce. Blake 40 Wash. App. at 312.
Blake is inapplicable to the University's CPA claim against GEICO. The
University's CPA claim is primarily premised on GEICO's repudiation of the Agreement
and the damages the University sustained as a result of having to settle or defend claims
by itself. The University did not base its CPA violation claim on any of GEICO's actions
taken after the commencement of this lawsuit.
Causation
GEICO briefly argues that the University did not present sufficient evidence that
GEICO's unfair or deceptive act or practice caused the University's injury.
12 The University also argues that it incurred additional burdens and expenses defending itself in
the Howard and Lennier claims. Its citation to the record does not support this position. During
direct examination of Shari Spung, a director of the University's claims department, Spung
appears to begin to say that the University Incurred significant expenses defending claims arising
from this case. A defense objection to this testimony was raised and sustained.
18
No. 74736-3-1 / 19
A plaintiff must establish that, but for the defendant's unfair or deceptive practice,
the plaintiff would not have suffered an injury. Indoor Billboard/Wash. Inc. v. Integra
Telecom of Wash.. Inc., 162 Wash. 2d 59, 78, 170 P.3d 10 (2007).
GEICO focuses on Kravtiz's alleged misrepresentation, and argues that there is
Insufficient evidence to show a causal connection between this misrepresentation and
Winslow-Nason's alleged loss of productivity. This misconstrues both Kravitz's
misrepresentation as the only unfair or deceptive act or practice and Winslow-Nason's
lack of productivity as the only injury, and also ignores other avenues of causation.
The University argued that GEICO engaged in unfair or deceptive acts or practices
when it repudiated the Agreement and when Kravitz misrepresented the liability
apportionment to the University. Further, as discussed above, GEICO's repudiation
caused the University to bear settlement costs that it otherwise would not have incurred.
VVinslow-Nason also had to take time away from her normal duties to defend claims that
would have fallen within the scope of the Agreement. The fact that the evidence may not
show a causal connection directly from Kravitz's misrepresentation to Winslow-Nason's
lost productivity does not negate the other causal connections between GEICO's unfair
or deceptive act and the University's injury. Thus, the record contains substantial
evidence or a reasonable inference that GEICO's actions caused the University harm.
Public Interest
GEICO argues that the University failed to show that any act or omission by GEICO
affected the public interest, such that there was a real and substantial potential for
repetition. This argument is unpersuasive, as GEICO stipulated that any alleged act or
practice done by GEICO affected the public interest.
19
No. 74736-3-1/20
In sum, the trial court did not err when it denied GEICO's motions for judgment as
a matter of law on the University's CPA claim. The record contains evidence, viewed in
the light most favorable to the University as the nonmoving party, of GEICO's unfair or
deceptive acts or practices and the injuries those acts or practices caused. We conclude
that the trial court properly denied GEICO's motions for judgment as a matter of law on
the University's CPA claim.
Motion for New Trial
GEICO argues that the trial court abused its discretion when it denied GEICO's
motion for a new trial. Specifically, GEICO argues that the trial court committed an error
of law that prejudiced GEICO when it permitted the University to add its CPA claim
immediately prior to trial.
A court may vacate a verdict and grant a new trial if any of a number of causes
that materially affect the rights of a party occur, including "Dirregularity in the proceedings
of the court, jury or adverse party, or any order of the court, or abuse of discretion, by
which such party was prevented from having a fair trial." CR 59(a)(1).
A trial court's order on a motion for a new trial is reviewed for an abuse of
discretion. Smith v. Orthopedics Intl Ltd., P.S., 170 Wash. 2d 659, 664, 244 P.3d 939
(2010).
As discussed above, the trial court did not abuse its discretion when it allowed the
University to amend its complaint to add a claim for violation of the CPA. For the same
reasons, GEICO is not entitled to a new trial based on the trial court's allowing the
University to amend its complaint to add a claim under the CPA.
20
No. 74736-3-1 /21
Motion for Remittitur
GEICO argues that the trial court abused its discretion when it denied GEICO's
motion for remittitur. Specifically, GEICO argues that the award was a "direct result of
prejudice caused by the trial court's prior errant discovery and evidentiary rulings," and
the University's incitement of passion In the jury.13 Because there is no indication that
the jury's award was based on passion or prejudice, we disagree.
"A claimant has the burden of proof on the amount of damages and must come
forward with sufficient evidence to support a damages award." Mutual of Enumclaw Ins.
Co. v. Gregg Roofing, Inc., 178 Wash. App. 702, 715-16, 315 P.3d 1143 (2013). A trial
court's "use of remittitur is, in effect, the result of a legal conclusion that the jury's finding
of damages is unsupported by the evidence." Sofie v. Fibreboard Corp., 112 Wash. 2d 636,
654,771 P.2d 711 (1989).
There is a strong presumption in favor of a jury's determination of damages. Sofie,
112 Wash. 2d at 654; see also RCW 4.76.030. "A judge can only reduce a jury's damages
determination when it is, in light of this strong presumption, wholly unsupported by the
evidence, obviously motivated by passion or prejudice, or shocking to the court's
conscience? Sofie 112 Wash. 2d at 654-55.
"Before passion or prejudice can justify reduction of a jury verdict, it must be of
such manifest clarity as to make it unmistakable." Bingaman v. Grays Harbor Cmtv.
How, 103 Wash. 2d 831, 836, 699 P.2d 1230 (1985). A party may appeal to the jury to act
as a "conscience of the community," unless the statement is designed to inflame the jury.
Miller v. Kenny, 180 Wash. App. 772, 816, 325 P.3d 278 (2014).
"Appellant's Br. at 39.
21
No. 74736-3-1/22
An order denying a motion for remittitur is reviewed for an abuse of discretion, and
the appellate court will not disturb the jury's award of damages unless it is "'outside the
range of substantial evidence in the record, or shocks the conscience of the court, or
appears to have been arrived at as a result of passion or prejudice.'" Bunch v. King
County Dep't of Youth Servs., 155 Wash. 2d 165, 174-75, 116 P.3d 381 (2005) (quoting
Binoaman, 103 Wash. 2d at 835).
Here, the jury's determination of damages was based on evidence in the record.
The jury awarded the University $300,000 in damages for GEICO's violation of the CPA.
GEICO's policy limit for bodily injury liability for the entire occurrence was $300,000. The
University offered testimony describing the number of persons injured and the likelihood
that the claims would require significant investigation. GEICO's repudiation of the
Agreement forced the University to face the Howard and Lennier lawsuits alone, rather
than being reimbursed by GEICO. Thus, the record contains evidence upon which the
jury could base its award for GEICO's violation of the CPA.
Further, the jury's award is not unmistakably the result of passion or prejudice.
GEICO relies on the alleged lack of evidence offered by the University to argue that the
jury's award must have been based on passion or prejudice. As discussed above,
evidence was offered to support the jury's award of damages to the University for
GEICO's violation of the CPA. Although the University asked the jury to hold entities like
GEICO accountable, this is insufficient to rise to the level of being specifically designed
to inflame the jury. The jury's award was not so manifestly the result of passion or
22
No. 74736-3-1 / 23
prejudice to merit a new trial based on an excessive damages award. We conclude that
the trial court did not abuse its discretion when it denied GEICO's motion for remittitur.14
Attorney Fees Award
GEICO argues that the attorney fees awarded to the University on its CPA claim
had no legal basis. Because the University was entitled to recover its attorney fees at
trial under the CPA, we disagree.
A person injured by a violation of the CPA may recover his or her actual damages
and also the costs of the suit and reasonable attorney fees. RCW 19.86.090. "A
determination of reasonable attorney fees begins with a calculation of the 'lodestar,' which
Is the number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate." Miller, 180 Wash. App. at 820. A lodestar amount may be adjusted based on
"the contingent nature of success, and the quality of work performed." Bowers v.
Transamerica Title Ins. Co., 100 Wash. 2d 581, 598, 675 P.2d 193 (1983).
GEICO does not assign error to the trial court's findings of fact underlying its
attorney fee award. Unchallenged findings of fact are verities on appeal. State v.
Stenson, 132 Wash. 2d 668, 697, 940 P.2d 1239 (1997).
A trial court's award of attorney fees is reviewed for abuse of discretion. Chuonq
Van Pham v. Seattle City Light, 159 Wash. 2d 527, 538, 151 P.3d 976 (2007).
14 GEICO also asks this court to grant it a new trial under Cr 59(a)(5), (7) and RCW 4.76.030 if it
concludes that the jury's damage award was unmistakably the result of passion or prejudice. A
court may vacate a verdict and grant a new trial if the damages awarded are "so excessive or
Inadequate as unmistakably to indicate that the verdict must have been the result of passion or
prejudice." CR 59(a)(5); see also RCW 4.76.030. This court gives weight and deference to the
trial court's discretion in denying a new trial based on a claim of excessive damages, and will
rarely change a jury's award. Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corn.,
122 Wash. 2d 299, 330, 858 P.2d 1054 (1993). For the same reasons analyzed in this section, the
jury's damage award was not unmistakably the result of passion or prejudice. We decline to grant
GEICO a new trial on this ground.
23
No. 74736-3-1/24
The University petitioned the trial court for reasonable attorney fees and costs
under RCW 19.86.090. The trial court found that the University was entitled to recover
reasonable attorney fees. The University prevailed on its CPA claim, as the jury
unanimously found that GEICO's deceptive or unfair conduct proximately caused it
damages. The trial court found that counsel for the University presented reasonable
market rates, spent substantial time on the litigation, and could not segregate the time
spent on the breach of contract and CPA claims. The trial court found that the University
was entitled to a multiplier of 1.5 because the case was "very risky" and counsel for the
University forwent more lucrative work to develop strong evidence in support of their
client.15 The trial court awarded a total attorney fees award of $495,033.75.
The trial court appropriately awarded reasonable attorney fees to the University
under RCW 19.86.090. Under the statute, the University prevailed on its CPA claim
against GEICO when the jury returned a unanimous verdict in its favor. The University
was entitled to recover its reasonable attorney fees under the statute. We conclude that
the trial court did not manifestly abuse its discretion when it considered the
reasonableness of the offered market rates, the time spent on the case, the intertwined
nature of the claims, and the factors justifying its use of a multiplier in calculating its
attorney fee award.
Attorney Fees on Appeal
The University requests its attorney fees on appeal incurred in defending the
Judgment against GEICO. "Attorneys' fees on appeal are recoverable under the [CPA]."
Fisons Corp., 122 Wash. 2d at 336. The present appeal focuses on the University's CPA
"Clerk's Papers at 6979.
24
No. 74736-3-1/25
claim against GEICO. The University has successfully defended its position in the appeal
and has properly requested attorney fees pursuant to RAP 18.1(b). We award the
University its attorney fees on appeal.
Affirmed.
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WE CONCUR:
.-----
\
Sitt fed.
25