Mariya Tarasyuk v. Mutual Of Enumclaw Insurance Company ( 2015 )

FILED
SEPTEMBER 1, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF 'WASHINGTON
DIVISION THREE
MARIYA TARASYUK, ) No. 32389-7-III
)
Appellant, )
)
v. ) UNPUBLISHED OPINION
)
MUTUAL OF ENUMCLAW )
INSURANCE COMPANY, and JOHN )
DOE, )
)
Respondents. )
LAWRENCE-BERREY, J. The trial court granted Mutual of Enumclaw Insurance
Company's (Enumclaw) motion for summary judgment, and dismissed all ofMariya
Tarasyuk's claims against her insurer. Ms. Tarasyuk claims that genuine issues of
material fact preclude summary judgment on all of her claims. We agree and reverse.
FACTS
On January 11,2011, Anna Mosesova of the Harvey-Monteith Insurance Agency
assisted Ms. Tarasyuk in applying for insurance coverage. The agency directed Ms.
Tarasyuk to Ms. Mosesova because they both spoke Russian. Ms. Tarasyuk could not
read or write in English, and her ability to speak the language was limited. The
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application asked whether any business was conducted on the premises, which was
answered "no." Clerk's Papers (CP) at 178. Both Ms. Tarasyuk and Ms. Mosesova
signed the application.
The same day, Ms. Tarasyuk purchased a homeowners' policy from Enumclaw.
The policy included a small amount for structures on the property other than the home.
The policy included the clause, "We do not cover other structures: ... used in whole or
in part for "business." CP at 38. The policy included a definition for "business" as
"includes trade, profession or occupation." CP at 36.
Another one of Enumclaw's agents, Craig Baumgartner, inspected the property
and took photographs of the home and the additional structures, including a large shed on
the property. Mr. Baumgartner noticed the saw, tools, and equipment in the area of the
shed and inquired about its use. He was told by someone on the property that the shed
was used to repair vehicles or boats belonging to friends and family members.
After the pictures were taken, Ms. Mosesova asked Ms. Tarasyuk if she had a car
repair business and if the repairs occurred in the shed. Ms. Tarasyuk said that she
repaired cars, but not many, and that most of the repairs were for friends. She said that
they did not repair anything in the shed. Ms. Tarasyuk said repairing cars was more like a
hobby. Ms. Tarasyuk also told Ms. Mosesova that if Ms. Mosesova needed a car fixed
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that she should bring it over. According to Ms. Tarasyuk's deposition, she could not
remember if Ms. Mosesova asked about earning money from the repairs, but if such a
question was asked, Ms. Tarasyuk would have said "yes." CP at 279.
On January 14,2011, Enumclaw's underwriter, Jill Anfinson, requested
photographs of Ms. Tarasyuk's property, including the front and back of the house and all
outbuildings. On January 19, Ms. Mosesova sent Ms. Anfinson four photographs. In the
e-mail.Ms. Mosesova noted that there was a large detached garage on the property,
probably referring to the large shed. However, Ms. Mosesova did not include pictures of
the shed. After checking the Internet site Zillow and reading Ms. Mosesova's comment,
Ms. Anfinson asked about the shed and its dimensions and requested photographs of the
structure.
One month later, Ms. Anfinson still had no pictures of the shed. She informed Ms.
Mosesova that the policy would be declined if she did not receive pictures of the shed.
Ms. Mosesova sent Ms. Anfinson two additional photographs of the shed. The
photographs did not show the car activities and were not the same size as the prior
pictures, although they were taken with the same camera. Ms. Anfinson advised Ms.
Mosesova that an additional $60,000 in coverage was needed to insure the 1,200 square
foot shed. Enumclaw amended the policy to add this additional coverage for "other
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structures." CP at 223. Ms. Tarasyuk's premiums increased to account for the additional
coverage.
On August 19,2011, Ms. Tarasyuk's shed burned down due to an electrical fire,
and the shed was deemed a total loss. Enumclaw investigated and discovered that Ms.
Tarasyuk had a business license for the car repair operation and used the shed to store
tools and repair manuals for the business. Enumclaw denied coverage for the shed,
concluding that the shed was being used in whole or part for the auto repair business.
Ms. Tarasyuk filed an action against Enumclaw based on its failure to cover the
loss of the shed. She alleged breach of contract; violation of the Consumer Protection
Act (CPA), chapter 19.86 RCW; violation of the Insurance Fair Conduct Act (IFCA),
RCW 48.30.010-.015; breach of the duty of good faith, and estoppel from denial of
coverage.
Both parties filed motions for summary judgment. Enumclaw presented evidence
that Ms. Tarasyuk was conducting business in the shed. This evidence included a
business license that Ms. Tarasyuk obtained for the car repair operation in mid-2010. The
license indicated that a 1,200 square foot detached building was to be used for the
business. Enumclaw also presented an advertisement for the business, complaints from
neighbors in 2011 regarding business operation on the property, 2010 and 2011 tax forms
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that listed income from the business, and Ms. Tarasyuk's insurance claim form where she
categorized several items lost in the fire as business property. In her deposition, Ms.
Tarasyuk claimed that they originally sought to start a business but that it failed. Ms.
Tarasyuk admitted that she kept business records in the shed. She also admitted that she
reported income for auto repair on her 2010 and 2011 tax forms.
In response and in support of her own summary judgment motion, Ms. Tarasyuk
claimed that Enumclaw's agents knew of the car repair operation and either did not
consider it a business use when she entered into the contract, or fraudulently
misrepresented the coverage and collected premiums knowing that the policy did not
cover the shed. Ms. Tarasyuk presented the deposition of Enumclaw's agents showing
knowledge of the repair business. In Ms. Mosesova' s deposition testimony, she admitted
discussing the repair business with Ms. Tarasyuk, and that Ms. Tarasyuk said she repaired
vehicles for family and friends only. Mr. Baumgartner also testified that he asked about
the business and noticed the business activity outside the shed.
To show that the use of the shed was obvious to agents Ms. Mosesova and Mr.
Baumgartner, Ms. Tarasyuk presented evidence that she had a sign right outside the shed
that advertised the repair business, and that this sign was on the property both before and
after Mr. Baumgartner took his pictures. Mr. Baumgartner remembered taking a picture
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of the front of the shed. However, the pictures given to Enumclaw by Ms. Mosesova
were altered and the sign was not shown.
Ms. Tarasyuk also presented a declaration from a photographic expert who
determined that the agents did not tum over all of the pictures to the insurance
underwriter and the pictures that were turned over were cropped. The expert noted that
three pictures in the sequence were missing. However, in Enumclaw's investigation
notes, Ms. Mosesova denied having any other photographs of the property other than the
ones sent to Enumclaw.
Ms. Tarasyuk offered evidence that Enumclaw questioned whether the business
was deliberately being concealed. An e-mail sent during the investigation by Enumclaw
Underwriter Patricia Boyles noted that "photos provided by the agency appear to have
deliberately not show[n] front & all of the boat/vehicles parked there." CP at 251. She
also presented deposition testimony from Ms. Boyles that she questioned whether
whoever took the picture had chosen not to provide a photograph of the front of the shed
and all of the vehicles parked there. Ms. Boyles said the local agency has authority to
bind Enumclaw.
The trial court granted Enumclaw's motion for summary judgment and dismissed
all of Ms. Tarasyuk's claims. The court denied Ms. Tarasyuk's motion for summary
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judgment and subsequent motion for reconsideration. The court concluded that
Enumclaw was not required to cover damage to the shed, finding that substantial factual
evidence established Ms. Tarasyuk's business use of the bUilding. The court also held
that the general duty of care which an insurance agent owes her client does not include
the general obligation to procure a policy that gives the client complete liability
protection.
ANALYSIS
This court reviews a summary judgment order de novo. Lunsford v. Saberhagen
Holdings, Inc., 166 Wash. 2d 264, 270, 208 P.3d 1092 (2009) (quoting City ofSpokane v.
Spokane County, 158 Wn.2d 661,671, 146 P.3d 893 (2006)). When reviewing a
summary judgment order, the appellate court engages in the same inquiry as the trial
court, viewing the facts and all reasonable inferences in the light most favorable to the
nonmoving party. Riojas v. Grant County Pub. Uti!. Dist., 117 Wash. App. 694, 697, 72
P.3d 1093 (2003). Summary judgment is appropriate only if the moving party can show
that "there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." CR 56(c). "A material fact is one upon which the
outcome of the litigation depends in whole or in part." Atherton Condo. Apartment-
Owners Ass 'n Bd ofDirs. v. Blume Dev. Co., 115 Wash. 2d 506, 516, 799 P .2d 250 (1990).
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Summary judgment on the interpretation of a contract is "proper where 'the
parties' written contract, viewed in the light of the parties' other outward objective
manifestations, has only one reasonable meaning.'" Spradlin Rock Prods., Inc. v. Pub.
Uti!. Dist. No.1 ofGrays Harbor County, 164 Wash. App. 641, 655, 266 P.3d 229 (2011)
(quoting Hall v. Custom Craft Fixtures, Inc., 87 Wn. App. 1,9,937 P.2d 1143 (1997)).
Where there are no disputed material facts and no extrinsic evidence presented on the
issue, "the meaning of a contract may be decided as a matter of law." Snohomish County
Pub. Transp. Benefit Area Corp. v. FirstGroup Am., Inc., 173 Wash. 2d 829, 834,271 P.3d
850 (2012). "[T]he interpretation of an unambiguous contract is a question oflaw" that
we review de novo. Stranberg v. Lasz, 115 Wn. App. 396,402,63 P.3d 809 (2003).
1. Whether, as a matter oflaw, Enumclaw had no duty to cover the shed
Ms. Tarasyuk contends that the trial court erred in granting summary judgment
because it misinterpreted the ambiguous term "business use" and concluded that her
property was not covered. Ms. Tarasyuk maintains that "business use" did not include the
car repair activity because the intent of the contract was to cover the shed, the agents were
aware of the minimal repair work done for family and friends, and the repair work
occurred outside the shed.
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"A breach of contract is actionable only if the contract imposes a duty, the duty is
breached, and the breach proximately causes damage to the claimant." Nw. Indep. Forest
Mfrs. v. Dep 't ofLabor & Indus., 78 Wash. App. 707, 712, 899 P.2d 6 (1995). Ms.
Tarasyuk's challenge to the insurance contract essentially has two parts. Her first
challenge addresses Enumclaw's duty based on the interpretation of the contract and the
intent expressed therein. Her second challenge addresses duty as well as breach and
involves Enumclaw's decision to deny coverage based on the use of the shed and the
location of business activity. The question is whether Enumclaw had a duty to cover the
shed and did it breach that duty when it denied coverage. The first challenge involves a
question of law, whereas the second involves a question of fact.
Washington follows the objective manifestation theory of contracts, looking for
"the parties' intent by its objective manifestations rather than the parties' unexpressed
sUbjective intent." Paradiso v. Drake, 135 Wash. App. 329, 336, 143 P.3d 859 (2006).
Courts should consider "only what the parties wrote, giving words in a contract their
ordinary, usual, and popular meaning unless the agreement, as a whole, clearly
demonstrates a contrary intent." Id.
Courts interpret what was written rather than intended to be written. J W Seavey
Hop Corp. v. Pollock, 20 Wash. 2d 337, 348-49,147 P.2d 310 (1944). Language that is
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clear on its face does not need construction. Cerrillo v. Esparza, 158 Wn.2d 194,201,
142 PJd 155 (2006). Ambiguities are construed against the drafter of the contract.
Rouse v. Glascam Builders} Inc., 101 Wash. 2d 127, 135,677 P.2d 125 (1984).
Enumclaw's duty to Ms. Tarasyuk can be found within the terms of the contract.
The intent of the parties in entering the contract was for Enumclaw to provide
homeowners' insurance to Ms. Tarasyuk. The contract includes coverage for the house as
well as the outbuildings. However, the contract limits Enumclaw's duty to insure. The
contract clearly excludes coverage for buildings used in whole or part for business. Thus,
the objective manifestation of the parties was to provide coverage for the house and
outbuildings, except if used for business. This was Enumclaw's duty under the contract.
The second part of the inquiry is whether the shed was indeed being used for
business and excluded from coverage. Business use of an outbuilding, as stated in the
contract, includes trade, profession, or occupation. As a preliminary matter, there is no
question that Ms. Tarasyuk's automobile repair activity is a business. She had a license
for the business, she advertised, and she paid taxes on the income. Although the repair
business was not her full time trade, profession, or occupation, there is no significant
dispute that the repair activity was run as a business, even ifjust for the benefit of family
and friends.
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However, a genuine issue of material fact remains as to whether the shed was
being used for Ms. Tarasyuk's business. Enumclaw claims that the shed was used for
business because Ms. Tarasyuk had a business license and the shed was listed on the
license application. However, Ms. Tarasyuk claimed that the work was completed
outside the building. She presented competing evidence showing large repair equipment
and vehicles outside the shed and the shed doors were too small to allow vehicles to enter
the building. She also presented testimony that the shed was used for general storage, not
for business use. Here, all reasonable inferences are to be drawn in favor of Ms.
Tarasyuk, the nonmoving party. Thus, whether the business use exclusion applied to the
shed is a disputed issue of fact to be decided by the trier of fact.
Summary judgment was not appropriate on the breach of contract claim. While we
can decide as a matter of law that Enumclaw owed a duty to cover the house and
outbuildings that were not used for business, a disputed issue of fact remains as to
whether Ms. Tarasyuk used the shed for her business.
2. Whether, as a matter oflaw, Enumclaw complied with its duty ofgood faith
"Insurance bad faith claims are often brought under common law, the [IFCA] and
the [CPA]. Each of these causes of action offers unique remedies." Schmidt v. Coogan,
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181 Wash. 2d 661, 677, 335 P.3d 424 (2014). In her complaint, Ms. Tarasyuk raised all
three causes of action. All three were dismissed on summary judgment.
In her common law claim for bad faith, Ms. Tarasyuk contends that the trial court
used the wrong standard when it concluded that Enumclaw did not owe a duty of care to
procure a policy that afforded Ms. Tarasyuk complete liability coverage. Ms. Tarasyuk
contends that the duty is one of good faith. She maintains that Enumclaw did not act in
good faith when it collected premiums for the shed knowing that it was used for business
and then wrongfully denied coverage after the fire.
Insurers in Washington have a duty to act in good faith and deal fairly with their
insured. Smith v. Safeco Ins. Co., 150 Wn.2d 478,484, 78 P.3d 1274 (2003). This duty
of good faith for the insurance industry is required by statute:
The business of insurance is one affected by the public interest, requiring
that all persons be actuated by good faith, abstain from deception, and
practice honesty and equity in all insurance matters. Upon the insurer, the
insured, their providers, and their representatives rests the duty of
preserving inviolate the integrity of insurance.
RCW 48.01.030.
A violation of this duty gives rise to a common law tort cause of action for bad
faith. Smith, 150 Wash. 2d at 484. Like other torts, the elements for the bad faith claim are
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duty, breach, causation, and damages. Id. at 485. "Whether an insurer acted in bad faith
remains a question of fact." Id.
An insurer has a duty of good faith to all of its policyholders. Id. To succeed on a
bad faith claim, a policyholder must show the insurer's actions were unreasonable,
frivolous, or unfounded. Id. "To affirm [summary judgment,] there must be no disputed
facts pertaining to 'the reasonableness of the insurer's action in light of all the facts and
circumstances of the case. '" Id. at 486 (quoting Indus. Indem. Co. ofthe NW, Inc. v.
Kallevig, 114 Wn.2d 907,920,792 P.2d 520 (1990)).
In actions where the insured claims that coverage was unreasonably denied, the
insured has the initial burden of showing that the insurer acted unreasonably. Id. In
response, the insurer has the opportunity to identify reasonable grounds for its action. Id.
If reasonable minds could not differ that the denial was based on reasonable grounds, then
summary judgment is appropriate in favor of the insurer. Id.
However, simply raising a theoretical reasonable basis for the insurer's conduct
does not necessarily end the inquiry. Id. The insured may present evidence that the
insurer's alleged reasonable basis was not the actual basis for its action, or that factors
outweigh the alleged reasonable basis. Id. "If ... reasonable minds could differ that the
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insurer's conduct was reasonable, or if there are material issues of fact with respect to the
reasonableness of the insurer's actions, then summary judgment is not appropriate." Id.
Here, the trial court based its denial on Suter v. Virgil R. Lee & Son, Inc., 51 Wn.
App. 524, 754 P.2d 155 (1988). Suter held that '" [t]he general duty of reasonable care
which an insurance agent owes his client does not include the obligation to procure a
policy affording the client complete liability protection.'" 51 Wash. App. at 528 (quoting
Jones v. Grewe, 189 Cal. App. 3d 950,956,234 Cal. Rptr. 717 (1987)). We agree with
Ms. Tarasyuk that this was not the appropriate standard to apply to her bad faith claim.
Ms. Tarasyuk's claim is not based on the adequacy of the coverage. Instead, her claim is
based on the reasonableness of Enumclaw's actions and whether she was treated fairly.
Summary judgment was not appropriate based on Enumclaw's duty to act in good
faith. Ms. Tarasyuk met her burden of showing that Enumclaw breached this duty
and acted in bad faith by leading her to believe that the shed was covered under the policy
to collect premiums. She maintains that the bad faith occurred in one of two ways:
(1) Enumclaw accepted premiums for the shed knowing that it would not be covered and
subsequently denied coverage or, alternatively, (2) Enumclaw accepted premiums for the
shed because it did not find Ms. Tarasyuk was using the shed for business, and then
changed its interpretation after the fire and denied coverage of the shed. In either case,
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she maintains that Enumclaw acted unreasonably when it denied coverage after it was
aware of the shed's use and collected the premiums.
Both of the scenarios involve disputed facts concerning Enumclaw's knowledge
and actions. Mr. Tarasyuk claims that Ms. Mosesova and Mr. Baumgartner knew, or
reasonably should have known, how the shed was being used. According to Enumclaw's
investigation notes, both agents suspected business use after the property was inspected.
Additionally, Ms. Tarasyuk told Ms. Mosesova about her business after Ms. Mosesova
inquired about the use of the shed. Even with this knowledge, Enumclaw insured the
shed and required an additional premium due to the size of the shed.
Ms. Tarasyuk also presented evidence that showed an intent by Enumclaw's agents
to conceal the use of the shed to the underwriter. Ms. Mosesova delayed sending pictures
to Enumclaw's underwriter and, when she did finally send them, they were altered. Even
Enumclaw's underwriter suspected that someone altered the pictures so the boats and cars
were not shown.
In response, Enumclaw contends that it did not act in bad faith because Ms.
Tarasyuk told the local agents that the shed was not used for business purposes and the
denial was reasonably based on the business use. Furthermore, Enumclaw contends that
its actions were reasonable because it did not have a responsibility to investigate Ms.
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Tarasyuk's use of the property. Enumclaw maintains that the shed was always covered,
just not for business use.
Resolution of these factual disputes is necessary to Ms. Tarasyuk's bad faith claim.
Whether Enumclaw knew of the particular use prior to collecting premiums or changed its
position on the use when it denied coverage are disputed issues of material fact crucial for
determining reasonableness. The reasonableness of Enumclaw's actions is to be
determined in light of all the facts and circumstances of the case. Because of the disputed
material facts, summary judgment was not appropriate.
The parties dispute whether estoppel applies to Ms. Tarasyuk's claim. Estoppel
does not operate to create coverage in an existing contract that is contrary to the express
provisions of that contract. Carew, Shaw & Bernasconi v. Gen. Cas. Co. ofAm., 189
Wash. 329, 336, 65 P.2d 689 (1937). However, when an insurer acts in bad faith, the
remedy is compensation for the injury caused and estoppel to policy defenses. Ledcor
Indus.} Inc. v. Mut. ofEnumclaw Ins. Co., 150 Wn. App. 1,10,206 P.3d 1255 (2009).
"When the insurer breaches the duty to defend in bad faith, the insurer
should be held liable not only in contract for the cost of the defense, but
also should be estopped from asserting the claim is outside the scope of the
contract and, accordingly, that there is no coverage. The coverage by
estoppel remedy creates a strong incentive for the insurer to act in good
faith, and protects the insured against the insurer's bad faith conduct."
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Id. (quoting Kirk v. Mount Airy Ins. Co., 134 Wash. 2d 558, 564,951 P.2d 1124 (1998)).
"The insurer acting in bad faith forfeits defenses to the claim tendered and handled in bad
faith, including the defense that the claim was never covered at all." Id. (emphasis
omitted). Hence, if bad faith is found, Enumclaw would be estopped from asserting the
claim is outside the scope of the insurance coverage.
The trial court erred when it determined as a matter of law that Enumclaw did not
violate a duty of good faith when it sold Ms. Tarasyuk the policy and declined coverage.
Enumclaw owed Ms. Tarasyuk a duty of good faith. Material issues of fact remain as to
whether it acted reasonably in denying the claim.
3. Whether material facts preclude dismissal ofMs. Tarasyuk's CPA claim
The CPA provides that "[u]nfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce are hereby declared unlawful."
RCW 19.86.020. The purposes of the CPA are "to protect the public and foster fair and
honest competition." RCW 19.86.920. To accomplish these purposes, the CPA is to be
liberally construed. RCW 19.86.920. In a citizen-initiated CPA suit, the following five
elements must be proven: "(1) unfair or deceptive act or practice; (2) occurring in trade or
commerce; (3) public interest impact; (4) injury to plaintiff in his business or property;
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(5) causation." Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d
778,780,719 P.2d 531 (1986).
As previously stated, RCW 48.30.010 prohibits unfair practices and deceptive acts
for those engaged in the business of insurance. A violation of RCW 48.30.010 is per se
an unfair trade practice and satisfies the first element of the five-part test for bringing a
CPA action. Kallevig, 114 Wash. 2d at 920-21. A violation ofRCW 48.30.010 can be
determined by a violation of any of the 19 types of conduct listed in WAC 284-30-330.
Anderson v. State Farm Mut. Ins. Co., 101 Wash. App. 323, 332,2 P.3d 1029 (2000).
WAC 284-30-330 lists conduct determined to be unfair or deceptive acts or
practices in the business of insurance, specifically applicable to the settlement of claims.
Applicable here are the practices of WAC 284-30-330: (1) Misrepresenting pertinent facts
or insurance policy provisions, (6) Not attempting in good faith to effectuate prompt, fair
and equitable settlements of claims in which liability has become reasonably clear, and
(7) Compelling a first party claimant to initiate or submit to litigation, arbitration, or
appraisal to recover amounts due under an insurance policy by offering substantially less
than the amounts ultimately recovered in such actions or proceedings.
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As in a bad faith claim, a reasonable basis for denial of an insured's claim
constitutes a complete defense to any claim that the insurer violated the CPA. Coventry
Assocs. v. Am. States Ins. Co., 136 Wn.2d 269,280,961 P.2d 933 (1998).
For the first element of Ms. Tarasyuk's CPA claim, a question of fact exists as to
whether Enumclaw's actions were deceptive and in violation ofRCW 48.30.010. Similar
to the claim for bad faith, Ms. Tarasyuk presented sufficient evidence to question whether
Enumclaw's settlement practices violated WAC 284-30-330. While Enumclaw denied
the claim because of the business use policy exclusion, this does not act as a complete
defense to the CPA claim because a question remains as to whether the basis for denial
was reasonable.
Ms. Tarasyuk also presented sufficient evidence of the remaining elements of the
CPA claim to overcome summary judgment: (1) Ms. Tarasyuk's interaction with
Enumclaw occurred in the insurance trade, (2) the public interest in fair insurance
practices, (3) Ms. Tarasyuk was injured when she paid premiums and was denied
coverage, and (4) Enumclaw's acts were the cause of her injury.
Summary judgment was not appropriate. There are questions of material fact as to
whether Enumclaw engaged in unfair claims settlement practices as defined in
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WAC 284-30-330. The trial court erred in granting summary judgment on Ms.
Tarasyuk's CPA claim.
4. Whether material facts preclude dismissal ofMs. Tarasyuk's IFCA claim
For reasons similar to her bad faith and CPA claims, Ms. Tarasyuk contends that
Enumclaw violated the IFCA. Ms. Tarasyuk claims that Enumclaw violated the IFCA by
(1) unreasonably investigating her claim only to deny coverage, (2) misrepresenting
pertinent facts or insurance policy provisions, (3) not attempting in good faith to
effectuate prompt, fair, and equitable settlements of claims where liability is clear, and
(4) compelling her to initiate litigation.
Washington's IFCA applies exclusively to first-party insurance contracts. Merrill
v. Crown Life Ins. Co., 22 F. Supp. 3d 1137, 1148 (E.D. Wash. 2014). "The statute
creates a private right of action against an insurer which (1) 'unreasonably denier s] a
claim for coverage or payment of benefits'; and/or (2) violates one of several claims
handling regulations promulgated by the Washington State Office of the Insurance
Commissioner." Id. (alteration in original) (quoting RCW 48.30.015(1), (5)). Like CPA
claims, WAC 284-30-330 provides a basis for an IFCA claim. Ainsworth v. Progressive
Cas. Ins. Co., 180 Wash. App. 52, 78-79, 322 P.3d 6 (2014).
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Similar to the good faith and CPA claims, summary judgment on the IFCA claim
was not appropriate. Factual questions need be resolved to determine whether
Enumclaw's denial of coverage or benefits was reasonable. The trial court erred in
granting summary judgment in favor of Enumclaw.
5. Whether Ms. Tarasyuk is entitled to attorney fees and costs on appeal
Pursuant to RAP 18.1, Ms. Tarasyuk requests attorney fees under the IFCA,
RCW 48.30.015; the CPA, RCW 19.86.090; RCW 4.84.010; and Olympic s.s. Co. v
Centennial Ins Co., 117 Wash. 2d 37, 53, 811 P.2d 673 (1991).
RCW 48.30.015(3) provides for attorney fees under the IFCA for a prevailing
party who is unreasonably denied a claim for coverage or payments of benefits.
RCW 19.86.090 provides for attorney fees for a person who establishes injury under the
CPA. RCW 4.84.010 provides for an award of costs, including attorney fees, at the trial
court level, not on appeal. Olympic provides for attorney fees when an insured is
compelled to initiate litigation to obtain the full benefit of his insurance contract.
Olympic, 117 Wash. 2d at 52-53.
Attorney fees are not yet warranted and might not ever be. Generally speaking, the
IFCA, the CPA, and Olympic provide attorney fees when the party prevails on the merits
of the action. Here, while Ms. Tarasyuk presented a convincing argument to overturn
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summary judgment, she did not prevail on her IFCA, CPA, or other claim. Her request
for attorney fees is denied. If she is successful at trial, the trial court has the authority to
award reasonable attorney fees, including reasonable attorney fees on this appeal.
We reverse the trial court's order of summary judgment on all claims.
A maj ority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Brown, A.C.J. Fearing, J.
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