West Beach Condominium, App v. Commonwealth Insurance Company Of America, Resp

(
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
WEST BEACH CONDOMINIUM, a ) No. 79676-3-I
Washington non-profit corporation, )
) DIVISION ONE
Appellant, )
)
v. ) PUBLISHED OPINION
COMMONWEALTH INSURANCE )
COMPANY OF AMERICA, a foreign )
insurance company, )
Respondent. ) FILED: January 13, 2020
_________________ )
ANDRUS, J. — West Beach Condominium appeals the dismissal of its claim
that its property insurer, Commonwealth Insurance Company of America,
wrongfully denied coverage. We conclude that the one-year suit limitation clause
in the Commonwealth policies precludes West Beach from suing the insurer for
breach of contract but does not bar West Beach’s extra-contractual claims under
the Insurance Fair Conduct Act and the Consumer Protection Act. We reverse the
summary judgment in favor of Commonwealth and remand.
FACTS
West Beach is a homeowner’s association for a condominium complex in
West Seattle. The 84 residential units in 3 buildings were constructed in the mid
to late 1960s or early 1970s. In June 2015, West Beach retained Amento Group
No. 79676-3-1/2
to conduct an assessment and intrusive investigation of the building envelope on
each of the 3 buildings. Amento Group reported the results of its investigation to
West Beach on September 8, 2015—documenting water damage behind the
exterior cladding and building envelope.
On September 26, 2016, West Beach submitted a claim for insurance
coverage to Commonwealth.1 Included with the claim letter was an Amento Group
report that detailed the discovery of, among other things, deficiencies in flashings,2
weather resistant barriers, and waterproofing transitions at elevated walkways and
unit decks; moisture issues at the belly band and cold joints in one building; below
grade water intrusion; insufficient exhaust of moisture from unit interiors; improper
flashings; moisture damaged gypsum; lack of waterproofing of deck surfaces;
deteriorated metal fascia at deck edges; and the lack of head flashing at sliding
glass doors.
West Beach also notified Commonwealth it had filed a lawsuit against it to
preserve claims that may become time barred. The parties agreed to enter into a
tolling agreement effective September 22, 2016, and West Beach dismissed its
complaint without prejudice to allow Commonwealth to conduct an investigation.
Commonwealth retained an engineering consultant to perform a visual
inspection of the property on November 15, 2016. In March 2017, Commonwealth
1 West Beach purchased three insurances policies through Commonwealth covering the years
2009 to 2012. The 2009 policy is not at issue on appeal. The 2010 and 2011 policies, materially
identical, are “all-risk” policies.
2 “Flashing” is a strip of sheet metal “bent to fit in the interior angle between a wall and a roof surface
or in the valley between two intersecting roof surfaces in order to make a watertight joint.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 865 (2002).
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No. 79676-3-113
denied coverage. It contended West Beach had been experiencing water intrusion
issues for at least 10 years, and concluded that:
• All of the policies required suit to be commenced at least 12 months after
the “occurrence” giving rise to the claim, and West Beach did not sue
within that time period.
• The 2009 policy covered only direct physical loss or damage
“commencing” during the policy period, and the 2010 and 2011 policies
covered only direct physical loss or damage “occurring” during the policy
periods. Commonwealth concluded that the losses West Beach had
sustained neither commenced nor occurred during the applicable policy
periods.
• The policies only covered “fortuitous risks,” and none had been identified
by West Beach.
• The policies did not cover faulty construction or inadequate repairs, and
the Amento Group report identified numerous deficiencies that fell into
this excluded category.
• The policies did not cover rust, corrosion, wear and tear, or gradual
deterioration, and some of the losses fell into this excluded category.
• The policies excluded coverage for mold, bacteria, fungi, and wet or dry
rot, and some of the losses fell into this excluded category.
Commonwealth also raised a number of other “potentially applicable” exclusions,
including an exclusion for the settling, cracking, or expansion in foundations, and
seepage of water below ground level.
In May 2017, West Beach refiled its complaint, alleging breach of contract,
bad faith investigation, and Consumer Protection Act3 (CPA) violations relating to
the investigation of West Beach’s claim and Commonwealth’s denial of coverage.
It subsequently filed an amended complaint, adding a claim for Insurance Fair
~ Ch. 19,86 RCW.
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No. 79676-3-1/4
Conduct Act4 (IFCA) violations based on the same investigation and denial of
coverage.
In December2017, the trial court held the 2009 policy did not cover any of
West Beach’s losses because the claimed damage commenced years before
2009. It also held that Commonwealth’s 2010 and 2011 all-risk policies covered
damage from faulty construction, faulty maintenance, and wind-blown rain,
contrary to the position Commonwealth had taken in its denial letter. It also
concluded that the policies covered damage resulting from a combination of
excluded and non-excluded perils. The court concluded that Commonwealth was
liable for all covered damage if any of the damage occurred during the policy
periods. But it found genuine issues of fact regarding the causes and timing of the
claimed damages.5
Commonwealth then moved to dismiss West Beach’s breach of contract
claim based on the “suit limitation” provision in the policies. The provision at issue
required any lawsuit to be filed no later than 12 months after discovery of the loss.
Commonwealth argued that West Beach had notice of its loss no later than
September 8, 2015, the date Amento Group presented the results of its
investigation, and West Beach did not file suit within 1 year of that date. In August
2018, the trial court granted Commonwealth’s motion and dismissed West Beach’s
breach of contract claim.
~ RCW48.30.015.
~ Commonwealth does not challenge these December 2017 rulings.
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No. 79676-3-1/5
That same month, as both parties prepared for trial, they filed motions for a
legal ruling as to whether the suit limitation provision also barred West Beach’s
IFCA and CPA claims and, if not, what damages West Beach could recover.
Commonwealth argued that the suit limitation clause not only barred a breach of
contract claim but it also voided its underlying coverage obligations under the 2010
and 2011 policies. It maintained that under Coventry Associates v. American
States Insurance Co., 136 Wn.2d 269, 961 P.2d 933 (1998), West Beach could
not use the CPA or IFCA to obtain policy coverage that otherwise did not exist.
West Beach contended the suit limitation clause did not affect
Commonwealth’s obligations under the policy. It argued Coventry only addressed
what damages a policyholder could recover in the absence of coverage. It
asserted both IFCA and the CPA allow a policyholder to recover policy benefits
when those benefits should have been paid by the insurer.
The trial court ruled that
[i]n light of [its] August 17, 2018 order granting [Commonwealth’s
motion to enforce the suit limitation provisions], [VVest Beach] cannot
establish that Commonwealth’s coverage denial was unreasonable.
[West Beach] failed to allege any consequential damages
proximately caused by Commonwealth’s alleged bad faith or breach
of the [CPA], and it cannot seek contract damages on its extra
contractual claims.
It dismissed the bad faith, CPA, and IFCA claims with prejudice and entered
judgment for Commonwealth.
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No. 79676-3-1/6
West Beach sought direct review by the Supreme Court.6 The Supreme
Court transferred the appeal to this court.
ANALYSIS
A. Standard of Review
West Beach’s claims were dismissed on pretrial dispositive motions
analogous to a summary judgment. Under these circumstances, we review the
trial court’s ruling de novo. Havens v. C & D Plastics, Inc., 124 Wn.2d 158, 176,
876 P.2d 435 (1994) (where trial court’s pretrial ruling had effect of dismissing
cause of action, review is de novo). Moreo~ver, the interpretation of an insurance
policy is a question of law, also reviewed de novo. Woov. Fireman’s Fund Ins.
Cci, 161 Wn.2d 43, 52, 164 P.3d 454 (2007). When we construe the language of
an insurance policy, we give it the same construction that an average person
purchasing insurance would give the policy. Id.B. Commonwealth’s Suit Limitation Clause
Commonwealth denied West Beach’s coverage claim based on, among
other reasons, the all-risk policies’ suit limitation clause:7
22. SUIT
No suit, action or proceeding for the recovery of any claim under this
Policy shall be sustainable in any court of law or equity unless the
same be commenced within Twelve (12) months next after discovery
by the Insured of the occurrence which gives rise to the claim. .
6 West Beach does not appeal the dismissal of its breach of contract claim or the trial court’s ruling
that the 2009 policy affords no coverage. It assigns error only to the dismissal of its IFCA and CPA
claims.
~ RCW 48.18.200(1)(c) explicitly authorizes suit limitation clauses in insurance contracts.
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No. 79676-3-1/7
West Beach argues that even though this suit limitation clause bars it from
suing Commonwealth for breach of contract, it does not discharge the insurer’s
underlying coverage obligation. It contends that if Commonwealth violated IFCA
and the CPA8 by unreasonably denying its claim for coverage or payment of
benefits, then it can recover the contractual benefits Commonwealth should have
otherwise paid.
IFCA provides that “[amy first party claimant to a policy of insurance who is
unreasonably denied a claim for coverage or payment of benefits by an insurer
may bring an action in the superior court of this state to recover the actual damages
sustained.” RCW 48.30.015(1); see also Perez-Crisantos v. State Farm Fire &
Cas. Co., 187 Wn.2d 669, 683, 389 P.3d 476 (2017) (claimant must prove the
insurer unreasonably denied a claim for coverage or the insurer unreasonably
denied payment of benefits).
And to prevail under the CPA, a plaintiff must prove (1) an unfair or
deceptive act or practice, (2) occurring in trade or commerce, (3) with a public
interest impact, (4) injury to the plaintiff’s business or property, and (5) causation.
Ledcor Indus. (USA), Inc. v. Mut. of Enumclaw Ins. Co., 150 Wn. App. 1, 12,
206 P.3d 1255 (2009). A denial of coverage is not an unfair or deceptive act or
practice if based on reasonable conduct by the insurer, even if the denial of
8 West Beach also alleged that Commonwealth violated the CPA by violating several regulations
dealing with the regulation of Unfair Claims Settlement Practices. ~ WAC 284-30-330(3) (failing
to adopt and implement reasonable standards for prompt investigation of claims); WAC 284-30-
330(4) (refusing to pay claims without conducting a reasonable investigation); WAC 284-30-330(5)
(failing to affirm or deny coverage within a reasonable time); and WAC 284-30-370 (requiring
completion of investigation within 30 days of notice of claim). West Beach does not address these
allegations on appeal.
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No. 79676-3-1/8
coverage is ultimately proved incorrect. Overton v. Consol. Ins. Co., 145 Wn.2d
417, 434, 38 P.3d 322 (2002).
Commonwealth concedes that its suit limitation clause does not bar extra-
contractual claims. But it contends its denial of coverage was reasonable as a
matter of law because West Beach’s non-compliance with the suit limit clause
nullified all underlying insurance coverage. Commonwealth relies on Lane v.
Deiartment of Labor & Industries, 21 Wn.2d 420, 151 P.2d 440 (1944), to argue
that its suit limitation clause is analogous to a “nonclaim” statute under which the
time limit for asserting a claim inheres in the right or obligation itself, It
distinguishes this type of provision from a contractual modification of a statute of
limitations that relates only to a contracting party’s remedy wholly independent of
any rights or duties under a contract.
We do not find the analogy to Lane persuasive. That case identified
illustrations of nonclaim statutes—materialmen’s liens, claims against an estate,
claims against municipalities. .[çj. at 425. In each example, a statute created both
a right of recovery and a time limitation in which to provide notice of a claim. If a
claimant fails to give notice within the statutorily specified time, the right of recovery
is completely extinguished, regardless Qf any statute of limitations for filing suit. k1.
But claims for coverage under an insurance policy are not analogous
because the Commonwealth policies do not condition coverage on receipt of notice
of a claim within a specified time period. The policies provided:
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No. 79676-3-1/9
2. NOTIFICATION OF CLAIMS
The Insured, upon knowledge of any occurrence likely to give rise to
a claim hereunder, shall give immediate written advice thereof to the
person(s) or firm named for the purpose in the Declarations.
They also included the following paragraphs in the “General Conditions” sections:
II. NOTICE OF LOSS
The Insured shall as soon as practicable report in writing to the
Company or its agent every loss, damage or occurrence which may
give rise to a claim under this Policy and shall also file with the
Company within Ninety (90) days from date of discovery of such loss,
damage or occurrence, a detailed sworn proof of loss. .
12. PAYMENT OF LOSS
All adjusted claims shall be paid or made good to the Insured within
Thirty (30) days after presentation and acceptance of satisfactory
proof of interest and loss at the office of the Company. No loss shall
be paid or made good if the Insured has collected the same from
others.
Commonwealth’s obligation to pay covered losses is triggered by the notice of loss,
not the initiation of a lawsuit.
Commonwealth also relies on Ashburn v. Safeco Insurance Co. of America,
42 Wn. App. 692, 713 P.2d 742 (1986), to argue that the suit limitation clause limits
its contractual coverage liability. But it misreads Ashburn. In that case, the
Ashburns’ home was damaged by a mud flow after Mt. St. Helens erupted in May
1980. jç~ at 694. They sued Safeco for coverage under their insurance policy after
the policy’s one-year suit limitation clause expired. Id. at 693-94. The trial court
granted, and Division Two affirmed, Safeco’s motion for summary judgment based
on the suit limitation clause. ki. at 694.
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No. 79676-3-1/10
The Ashburns argued on appeal that the suit limitation clause was invalid
because it frustrated their reasonable expectations of coverage in the event of loss
and conflicted with the statute of limitations for contract claims. Id. at 695. The
court recognized that “[an] insurance contract may include reasonable limitations
on liability” and that the Ashburns’ policy required suit to be filed within one year of
their loss. jç~ Given the lack of ambiguity in the extent of coverage, the court
concluded that the limitation provision did not frustrate the insureds’ reasonable
expectation of coverage.
As to the Ashburns’ contention that the suit limitations period could not
prevail over the contract statute of limitations, the court also disagreed.
“Limitations of actions provisions in a contract prevail over general statutes of
limitations unless prohibited by statute or public policy, or unless they are
unreasonable.” j4~ at 696. The court held that the one-year suit limitation clause
“bars the judicial remedy for enforcing the duty that had come into existence when
the Ashburns filed their claim.” ki. at 698.
We agree with Commonwealth that, under Ashburn, an insurance contract
may place reasonable limits on the insurer’s liability. But it does not follow from
this premise that Commonwealth’s suit limitation clause extinguishes coverage
obligations if a lawsuit is not filed within a year of the loss. Ashburn makes it clear
that this type of provision only bars a judicial remedy for breach of contract.
Commonwealth’s reliance on similar language in Wothers v. Farmers
Insurance Co. of Washinciton, 101 Wn. App. 75, 5 P.3d 719 (2000), and Simms v.
Allstate Insurance Co., 27 Wn. App. 872, 621 P.2d 155 (1980), is also misplaced.
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No. 79676-3-I/li
Both cases indicate that suit limitations clauses are contractual modifications of
statutes of limitations. Wothers, 101 Wn. App. at 79; Simms, 27 Wn. App. at
876-77. Neither case holds that the expiration of a suit limitation period
extinguishes the underlying coverage obligation.
We find more persuasive the reasoning of our federal judicial colleagues in
Yancey v. Automobile Insurance Co. of Hartford, No. C11-1329RAJ, 2012 WL
12878687 (W.D. Wash. Oct. 23, 2012), and Lakewood Shores Homeowners Ass’n
v. Continental Casualty Co., No. C18-1353MJP, 2018 WL 9439866 (W.D. Wash.
Dec. 14,2018). In Yancey, the insureds quickly notified Hartford that an accidental
fire damaged their home on January 4, 2010. 2012 WL 12878687, at *1...2 Even
though the extent of the damage and repair was in question, Hartford issued
checks to the Yanceys for partial payment for the damage. When the parties
could not reach agreement on the amount of recoverable benefits, the Yanceys
sued Hartford in July 2011. k1. at *2..3
The Yanceys conceded that a breach of contract claim was barred because
they filed suit more than one year after the date of loss, contrary to the policy’s
one-year suit limitation clause. ki. at *3..4 But as in this case, the Yanceys also
alleged CPA and IFCA violations, which Hartford conceded were not barred by the
one-year suit limitation period. .[ç[~. Instead, it argued that the suit limitation clause
“not only prevented Ms. Yancey from suing for a breach of the Policy, it
extinguished Hartford’s obligation to pay Ms. Yancey.” Id. at ~9
The federal court disagreed. j4. It relied on settled law that the expiration
of a statutory limitation period does not extinguish legal obligations; “it simply
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No. 79676-3-1/12
deprives the plaintiff of a legal remedy.” jç~ (citing Stenberg v. Pac. Power & Light
Co., Inc., 104 Wn.2d 710, 714, 709 P.2d 793 (1985) (“A statute of limitation, in
effect, deprives a plaintiff of the opportunity to invoke the power of the courts in
support of an otherwise valid claim.”); CHD, Inc. v. Taggart, 153 Wn. App. 94, 220
P.3d 229 (2009); Jordan v. Bergsma, 63 Wn. App. 825, 822 P.2d 319 (1992);
Lombardo v. Mottola, 18 Wn. App. 227, 566 P.2d 1273 (1977)). The federal court
acknowledged that no Washington court had directly addressed this issue with
respect to a contractual limitations period, but relied on Ashburn for the proposition
that a “contractual limitations clause [us a limitation on a legal remedy rather than
a means to extinguish contractual duties.” Id.The federal court concluded that the language of the suit limitation clause
provided only that a contract action could not be brought more than one year after
the date of loss. jçL It specifically noted that the policy did not provide that
Hartford’s obligations ended at that time.
In Lakewood Shores, a different federal court recently followed the
reasoning in Yancey and held that “the suit limitation clause does not negate
coverage, nor does it extinguish [the insurer’s] obligations under the Policy.” 2018
WL 9439866, at *3 The court further stated that it did not believe Yancey’s
reasoning applied only where an insured tendered the claim during the suit
limitation period. 2018 WL 9439866, at *4 (citing and quoting Ashburn,
42 Wn. App. at 698, as explaining that “notwithstanding a one-year suit limitation
clause, ‘[the insurer] had a duty to perform as soon as the [insureds] filed a claim
for covered loss under the policy,’ and that the insureds’ ‘failure to institute suit’
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No. 79676-3-1/13
within one year barred only their ‘judicial remedy for enforcing the duty that had
come into existence when [they] filed their claim”) (alterations in original)
(emphasis omitted).
As in Yancey and Lakewood Shores, Commonwealth’s suit limitation clause
says nothing about its underlying coverage obligations. It is thus merely a
contractual modification to the statute of limitations otherwise applicable to West
Beach’s breach of contract claim. This clause does not negate coverage or
extinguish Commonwealth’s obligations under the all-risk policies.
The trial court’s dismissal of West Beach’s IFCA claim was based on its
determination that the suit limitation clause made Commonwealth’s denial of
coverage reasonable as a matter of law. Because West Beach has an
independent statutory claim for failure to provide coverage and because the
coverage obligation was not extinguished by the suit limitation clause, the trial
court erred in concluding that Commonwealth’s denial of coverage was reasonable
as a matter of law. Simms, 27 Wn. App. at 878 (holding that suit limitation clauses
do not bar actions arising under an independent statutory scheme); see also
Collazo v. Balboa Ins. Co., No. C13-0892-JCC, 2014 WL 12042561, at *2 (W.D.
Wash. Oct. 22, 2014) (“[T]he suit-limitation clause does not affect Plaintiff’s extra
contractual claims for bad faith, violation of the [CPA], and violation of [IFCA].”).
We conclude the trial court erred by dismissing West Beach’s extra
contractual claims based on the insurance policies’ suit limitation clause.
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No. 79676-3-1/14
C. West Beach’s Recoverable Damages under IFCA and the CPA
Commonwealth argues that even if West Beach’s IFCA and CPA claims
survive, under Coventry Associates v. American States Insurance Co., West
Beach cannot recover policy benefits as its damages.
In Coventry, an insured alleged its first party insurer failed to investigate its
claim in good faith. 136 Wn.2d at 273-74. It sought policy benefits as its
recoverable damages. jçj~. at 283. The Washington Supreme Court addressed
whether “coverage by estoppel” was the appropriate remedy in that case. k~. at
284. It recognized that in the third party claim context, if an insurer acts in bad
faith, that insurer is estopped from denying coverage, even if an otherwise good
policy defense exists. j~ç~ The Court held, however, that in the first party context,
coverage by estoppel is not the appropriate remedy because “the loss in the
first-party situation has been incurred before the insurance company is aware a
claim exists.” Id.But coverage by estoppel was at issue in Coventry only because the parties
both agreed that there was, in fact, no coverage for the claimed losses. j~ at 275.
Coventry’s only allegation was bad faith in the investigation of its claim, not bad
faith in the denial of coverage. jç[~ It was in this context that the Court limited
Coventry’s damages to the amounts it incurred as a result of American States’ bad
faith investigation. jç~ at 285; see also Peoiles v. United Servs. Auto. Ass’n, No.
96931-1, slip op. at 12, _Wn.2d —‘ — P.3d —‘ 2019 WL 6336407, at *4 (Wash.
Nov. 27, 201 9), http://www.courts.wa.gov/opinions/pdf/96931 1 .pdf (answering
certified question from federal court and concluding that wrongfully denied
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No. 79676-3-1115
personal injury protection benefits constitute an injury to business or property
under the CPA).
In this case, West Beach contends the Commonwealth all-risk policies
actually cover its claimed losses. Under IFCA, a claimant is entitled to “actual
damages sustained, together with the costs of the action.” RCW48.30.015(1). An
insurer is liable for those damages proximately caused by its IFCA violations.
Dees v. Allstate Ins. Co., 933 F. Supp. 2d 1299, 1312 (W.D. Wash. 2013). And
under the CPA, a plaintiff must prove that the injury it sustained is causally linked
to the unfair or deceptive act. Hangman Ridge Training Stables, Inc. v. Safeco
Title Ins. Co., 105 Wn.2d 778, 793, 719 P.2d 531 (1986). The CPA allows a plaintiff
“injured in his or her business or property” by a CPA violation to recover actual
damages. RCW 19.86.090; see also Peoples, No. 96931-1, slip op. at 11, 2019
WL 6336407, at *4 And the “deprivation of contracted-for insurance benefits is an
injury to ‘business or property’.” Peoples, No. 96931-1, slip op. at 7-8, 2019 WL
6336407, at *3 Thus, recoverable damages under both IFCA and the CPA can
include policy benefits that were unreasonably denied, subject to the policy’s limits
and other applicable terms and conditions. Dees, 933 F. Supp. 2d at 1312-13; see
also Schreib v. Am. Family Mut. Ins. Co., 129 F. Supp. 3d 1129, 1137 (W.D. Wash.
2015). Based on this reasoning, we conclude that Coventry does not apply unless
and until a jury determines that no coverage exists under the two relevant policies.
We conclude the trial court erred by not allowing the jury to decide whether
the damage at West Beach’s property was caused by covered perils and, if so,
whether Commonwealth unreasonably denied coverage and violated IFCA and the
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No. 79676-3-1/16
CPA by failing to pay for that covered damage. We thus reverse the trial court’s
order granting Commonwealth’s motion to enforce the Coventry limitation on
damages for extra-contractual claims, the order denying West Beach’s motion
regarding its IFCA and CPA damages, and the judgment for Commonwealth. We
remand to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
WE CONCUR:
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