Washington Federal Court Rules Notice Prejudice Rule Does Not Apply to Consecutive Claims-Made and Reported Policies

On December 12, 2020, Philadelphia Indemnity Insurance Company, prevailed before the U.S. District Court for the Western District of Washington, in Faithlife Corp. v. Phila. Indem. Ins. Co., 2020 WL 7385722 (W.D. Wash. 2020), on cross-motions for summary judgment.

Philadelphia issued plaintiff two claims-made and reported policies, one effective in 2016 and one effective in 2017. During the 2016 policy, plaintiff was mailed notice of administrative charges from the EEOC, regarding alleged age and disability discrimination against former employees. The charges were not reported to Philadelphia, and were later voluntarily withdrawn by the former employees. Then, during the 2017 policy period, the former employees filed an employment discrimination lawsuit against plaintiff. Plaintiff reported the lawsuit to Philadelphia, who denied coverage under the terms of the policies. Plaintiff filed suit against Philadelphia for coverage.

The parties filed cross-motions for summary judgment regarding coverage. Philadelphia argued that there was no coverage under the claims-made and reported policies, since plaintiff failed to give timely notice of the claim during the 2016 policy. The Court agreed. The Court found that the administrative charges filed by the former employees were a “claim” under the policies. Based on the policy language, the administrative charges and the lawsuit alleged the same wrongful acts, and were not reported during the 2016 policy, and therefore excluded under the 2016 policy.

The Court rejected plaintiff’s argument that the “Prior and Pending” clause does not exclude the claim under the 2017 policy, or that the policies contain a “Loss Aggregation Clause” that is not properly read to exclude the claim. The Court also rejected plaintiff’s arguments that the notice/prejudice rule should apply.

Based on these findings, the Court granted Philadelphia’s motion for Partial Summary Judgment, finding no coverage under Philadelphia’s policies, and denied plaintiff’s motion for partial summary judgment on coverage.

Philadelphia was represented by Soha & Lang attorneys Paul Rosner and Jillian M. Henderson in this matter.

New COVID Legislation in Washington to Modify Insurance Policy Terms

On January 26, 2021, Senate Bill 5351 was introduced during the State of Washington’s 67th Legislature’s 2021 Regular Session. The bill seeks to change the suit limitations period from one year to two years (RCW 48.18.200), and add the provision that:

“Every property insurance policy containing a grant of coverage for direct physical loss of or damage to property shall be construed to include the deprivation of such property and the loss of the ability to use such property.”

(RCW 48.18.520). The bill would also add two new sections, applying these changes retroactively to February 29, 2020, when Governor Inslee issued Proclamation 20-05, and explaining that the act would take effect immediately.

If you have additional questions on this bill, or would like to receive continuing updates, please feel free to reach out to Soha & Lang.

Court Holds that Bicyclist is a “Pedestrian” for Purpose of Coverage

McLaughlin v. Travelers Comm. Ins. Co., Wash. Supreme Court (Dec. 10, 2020).

This case deals with whether the plaintiff, while riding his bicycle at the time of the accident, was a “pedestrian” under his California auto insurance policy’s MedPay coverage. “Pedestrian” was not defined by the policy. RCW 48.22.005(11) defines “pedestrian” for purpose of casualty insurance as “a natural person not occupying a motor vehicle as defined in RCW 46.04.320.” Since McLaughlin’s bicycle did not have a motor, he was deemed a “pedestrian.” The Court discussed the Court of Appeals approach to “harmonize” the definition of “pedestrian” in RCW 48.22.005(11) with RCW 46.04.400. The latter statute expressly excludes bicyclists from the definition of “pedestrian.” RCW 48.22.005(11), applies to casualty insurance, however, and RCW 46.04 has limiting language that definitions in that chapter apply to that chapter, “except where otherwise defined,” so RCW 48.22.005(11) was determined to be the appropriate definition to apply in this case.

The Court discussed that even if the definition of “pedestrian” in RCW 48.22.005(11) was not applied, the term “pedestrian” in the policy is ambiguous, and resolved in favor of the insured.

Judgment Established Substantial Interest in Quiet Title Action

Flint v. Allstate Ins. Co., Unpublished Division One Opinion (March 4, 2019).


The Flints filed for quiet title against Allstate and its insured based on adverse possession, and recorded a lis pendens against the insured’s property. Allstate was then dismissed under a CR 41(a) motion filed by the Flints, but intervened in the quiet title action under CR 24.

In a different lawsuit, the insured had sued Allstate for breach of an insurance policy. Allstate received a Final judgment in its favor, awarding Allstate damages against the insured for just under $360,000.

In the quiet title action, the trial court entered an order denying Allstate’s MSJ, finding Allstate did not have standing to challenge the Flint’s adverse possession claim. The Flint’s MSJ for quiet title to the insured’s property was granted.

Allstate appealed, contending it has standing in the quiet title action. Division One found that though Allstate does not have a lien against the insured’s property, its Judgment for almost $360,000 establishes a “substantial interest” in the outcome of the quiet title action. Division One reversed the trial court’s decision that Allstate did not have standing and vacated the order of quiet title.

Disclaimer: The opinions expressed in in this blog are those of the author and do not necessarily reflect those of Soha & Lang, P.S. or its clients.

Sufficient Evidence Existed of Requisite Antecedent Agreement for Purpose of Insured’s Reformation Claim

In Emrys v. Farmers Ins. Co., 294 Or App 107, __ P3d ___ (Sept. 12, 2018), the insured owned two adjacent properties, with addresses at 106 Cofey Crossing Lane (“106 Property”) and 108 Cofey Crossing Lane (“108 Property”), insured under two separate policies.  The insured let the policy for the 106 Property lapse.  After the insured’s death, the estate’s personal representative learned of the properties and informed the insurer she wanted to continue the existing policy.  After a fire loss at the 106 Property, the insurer denied the claim because it had only issued coverage for the 108 Property.  The personal representative filed a lawsuit seeking to reform the policy to include the 106 Property.  On remand from a prior appeal,[1] the trial court concluded that the reformation claim failed because there was no showing of the requisite antecedent agreement.  The Court of Appeals reversed.  The appellate court exercised its power to review the case de novo because, among other things, the matter was on appeal for the second time on virtually the same issue. The Court of Appeals found that, on the undisputed facts, the parties had reached an antecedent agreement to insure the 106 Property and, therefore, reform was warranted.


Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.

[1] See Emrys v. Farmers Ins. Co., 275 Or App 691, 365 P3d 1119 (2015).