by Jennifer Dinning | Sep 9, 2019 | Blog News, Publications
In the matter of Belmain Place Condominium Owners Association v. American Insurance Company, 2:19-cv-00156-MJP (W.D. Wash., September 4, 2019) the Washington federal district court denied an insured/plaintiff’s motion for summary judgment on coverage related to water damage to a condominium. Based on the “inverse proximate cause” language found in the “Washington Changes — Excluded Causes of Loss” form, the Court rejected the insured’s argument that if water intrusion damage is not specifically excluded, it is always covered under an ensuing loss provision.
The Court explained that the Washington Supreme Court expressly allowed for “inverse proximate cause” language in Vision One, LLC v. Phila. Indemn. Ins. Co., 174 Wn.2d 501 (2012) and distinguished this matter from another Western federal district court decision that addressed different policy language.
Notably, the decision also states that “Plaintiff’s position has the potential to swallow the exclusions in an all-risk policy whole.”
by Kyle Butler | Jul 9, 2019 | Blog News, Publications
In Lazuri Daniels v. State Farm Mutual, No. 96185-9 (July 3, 2019), an en banc Washington Supreme Court decided that an insurer which has sought and obtained subrogation proceeds from a third party is required to reimburse its fault-free insured for the full amount of their deductible before allocating any portion to its subrogated interest.
The insured was involved in an auto accident. The insurer, State Farm, paid its insured the portion of the repair costs that exceeded the insured’s deductible and then sought to recover its payment from the at-fault driver’s insurer, Geico. Geico contended that it’s insured was 70% at fault for the collision and offered State Farm 70% of its insured’s total damages. State Farm accepted the offer and then reimbursed its insured for 70% of her deductible. State Farm’s insured then filed suit against State Farm alleging that under its own insurance policy and Washington law, State Farm was entitled to settlement proceeds only after fully compensating its insured for her losses, including the full deductible. The trial court dismissed the claims against State Farm via summary judgment which was affirmed by the Court of Appeals.
The Washington Supreme Court reversed and remanded. The Supreme Court held that the application of the Made Whole Doctrine is not limited to situations where the insured recovers directly from a third-party, and instead applies whenever an insurer seeks “an offset, subrogation, or reimbursement” for benefits already paid. It followed its reasoning in Thiringer v. American Motors Insurance Co. and Sherry v. Financial Indemnity Co., stating that “the proceeds from any recovery from a third-party tortfeasor, whether in a subrogation action or otherwise, must be allocated in such a way as to first make the insured whole.” The Court also determined that this policy is supported by the insurance regulations and State Farm’s own insurance policy language.
If you have any questions regarding this case, please do not hesitate to contact us.
Disclaimer: Any 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.
by Geoff Bedell | May 10, 2019 | Blog News, Publications
Allianz Global Risks v. ACE Property & Casualty Ins. Co., 297 Or App 434 (2019) involved a contribution action brought by the plaintiff insurers against several defendant insurers. The defendant insurers had issued insurance to the same insured, Con-way, prior to 1981. These policies included Con-way’s subsidiary as an insured. In 1981, Con-way sold the subsidiary to Daimler, which was insured by plaintiffs. After defending and indemnifying Daimler, as successor to the subsidiary, in three Superfund claims and more than 1,500 asbestos personal injury claims, the plaintiffs sued the defendant insurers seeking contribution. The Oregon Court of Appeals addressed whether the plaintiffs’ insured, Daimler, had assumed the subsidiary’s contingent liabilities with the 1981 sale. It found that a letter written at the time of the sale clarified that Daimler had not assumed the contingent liabilities: “The letter states explicitly that its purpose is to clarify the terms of the [sale] agreement. It is signed by the parties and unequivocally and unambiguously states that [the subsidiary] has not transferred, and Daimler has not assumed, [the subsidiary’s] contingent liabilities.” Id. at 444. Because Daimler had not assumed the continent liabilities, the court held that the plaintiffs could not seek contribution from the defendant insurers. Soha & Lang, P.S., represented one of the insurer defendants in the action.
Disclaimer: The opinions expressed in in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.
by Jennifer Dinning | Apr 19, 2019 | Blog News, Publications
In the matter of Massachusetts Bay Ins. Co. v. Walflor Industries, Inc. et al, 2:18-cv-00791-JLR (W.D. Wash., April 17, 2019), the Washington federal district court upheld a defense cost reimbursement provision, rejecting the argument that such provisions are void as a matter of public policy.
The provision, contained in a separate endorsement titled “WASHINGTON CHANGES – DEFENSE COSTS,” provides:
The following applies to any provision in this Policy, or in any endorsement attached to this Policy that sets forth a duty to defend:
If we initially defend an insured or pay for an insured’s defense but later determine that none of the claims, for which we provided a defense or defense costs, are covered under this insurance, we have the right to reimbursement for the defense costs we have incurred.
The right to reimbursement under this provision will only apply to the costs we have incurred after we notify you in writing that there may not be coverage and that we are reserving our rights to terminate the defense or payment of defense costs and to seek reimbursement for defense costs.
The court found support for the reimbursement provision in Nat’l Sur. Corp. v. Immunex Corp., 176 Wn.2d 872, 297 P.3d 688 (2013), noting that the Immunex Court stated that to “allow[] recoupment to be claimed in a reservation of rights letter would allow the insurer to impose a condition on its defense that was not bargained for.”
The court found no basis for invalidating the endorsement on public policy grounds and held that Massachusetts Bay is entitled to recoup the defense costs it paid in the underlying lawsuit pursuant to the endorsement.
by Jillian Henderson | Mar 5, 2019 | Blog News, Publications
Flint v. Allstate Ins. Co., Unpublished Division One Opinion (March 4, 2019).
http://www.courts.wa.gov/opinions/pdf/772414.pdf
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.
by Cristin Cavanaugh | Feb 13, 2019 | Blog News, Publications
On January 31, 2019, the Washington Supreme Court held in Floeting v. Group Health Cooperative, No. 95205-1, that under the plain language of the Washington Law Against Discrimination (“WLAD”), employers are held strictly liable for their employee’s discriminatory conduct toward a customer in a place of public accommodation.
In this case, plaintiff alleged that a Group Health Cooperative employee repeatedly sexually harassed him while he was seeking medical treatment. Plaintiff sued Group Health for the unwelcome and offensive sexual conduct he experienced. Group Health argued that workplace sexual harassment doctrines should be imported into the public accommodations context, categorically limiting employer liability. The trial court dismissed his claim on summary judgment. The Court of Appeals reversed.
The Washington Supreme Court noted that under the plain language of the WLAD, employers are directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation. The Court found that to be actionable, the asserted discriminatory conduct must be objectively discriminatory. The Court also found that the employer will be liable if its employee caused the harm prohibited by the statute, even if it did not participate in the discrimination and was not negligent in training or supervising its employees. The Glasgow1 standard for sexual discrimination committed by an employee against a coworker in the employment context does not apply to claims for discrimination in places of public accommodation.
Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha & Lang, P.S. or its clients.
1. Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401 (1985).
by Soha Lang | Feb 6, 2019 | Blog News, Publications
Soha & Lang, P.S. Shareholder Geoffrey Bedell has been selected to be the President of the Seattle Chapter of the Claims and Litigation Management (CLM) Alliance for 2019. CLM is a national organization created to meet the needs of professionals in the claims and litigation management industries. The CLM sponsors educational programs, provides resources, and fosters communication among all in the industry. Please feel free to contact Geoff if you have questions about the CLM or visit www.theclm.org
by Paul Rosner | Jan 4, 2019 | Blog News, Publications
For the past 18 years, Randy Maniloff of White and Williams, LLP in Philadelphia has published a special edition of his Coverage Opinions Newsletter on the year’s ten most significant liability insurance coverage decisions. The Keodalah v. Allstate decision by the Washington Court of Appeals, which held that adjusters can be personally sued for bad faith and for violations of Washington’s Consumer Protection Act, made the list of the “Ten Most Significant Insurance Coverage Decisions Of 2018.”
Soha & Lang, P.S. Shareholder, Paul Rosner was honored to accept Mr. Maniloff’s invitation to examine the implications of the Keodalah decision as the sole guest author for the 2018 edition of his top ten list.
Mr. Rosner’s article is available at: http://coverageopinions.info/Vol8Issue1/Keodalah.html
The current edition of Coverage Opinions with links to articles on all of the top ten decisions and other content is available at: http://coverageopinions.info/Vol8Issue1/CurrentIssue.html
If you have questions about Keodalah v. Allstate or any other coverage issues, please feel free to contact Paul Rosner or any other Soha & Lang, P.S. Shareholder.
The opinions expressed in this blog and in the linked articles are those of the authors and do not necessarily reflect those of Soha & Lang, P.S. or its clients.
by Sarah Davenport | Nov 5, 2018 | Blog News, Publications
On November 1, 2018, the Washington Supreme Court held in Hendrickson v. Moses Lake School District, No. 94898-4, that school districts are subject to an ordinary duty of care, not a heightened duty of care, in an unanimous opinion.
In this case, a student injured herself in a woodshop class when she did not properly follow procedures with a table saw while the teacher was supervising other students. The student sued the school district, alleging that it was vicariously liable for the teacher’s negligence. At trial, the student proposed a jury instruction that imposed a heightened duty of care, which the trial court declined to use. After the jury found that the school district’s negligence was not the proximate cause of the student’s injuries, the student appealed. The intermediate court of appeals reversed in part, holding that the trial court should have provided a jury instruction imposing a heightened duty of care. The school district then appealed to the Washington Supreme Court.
The Washington Supreme Court noted that, although a party is not typically required to take affirmative action to protect another party from harm, there is a special relationship between school districts and students. School districts have “a duty to protect their students from foreseeable harm, even when that harm is caused by third parties.” However, this special relationship only requires school districts “to exercise such care as an ordinarily responsible and prudent person would exercise under the same or similar circumstances.” Accordingly, the trial court did not err by providing a jury instruction that imposed an ordinary duty of care, instead of the proposed heightened duty of care.
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.
by Jennifer Dinning | Oct 26, 2018 | Blog News, Publications
In Safeco Ins. Co. of America v. Wolk, Cause No. C18-5368 RBL, 2018 WL 5295250, at *1 (W.D. Wash. Oct. 25, 2018) the federal district court analyzed the duty to defend a suit against Safeco’s insureds, Ben and Michelle Wolk. The underlying suit alleged sexual abuse by Ben and negligent supervision by Michelle. Safeco denied coverage for Ben, but defended Michelle under a reservation of rights, and brought a declaratory judgment action to determine its obligations, if any, to Michelle.
Safeco brought a motion for summary judgment, asserting that the suit did not allege an occurrence under the policy and that several exclusions bar coverage. The court performed a proximate cause analysis pursuant to Xia v. ProBuilders Specialty Ins. Co. RRG, 188 Wn.2d 171 (2017), and found in Safeco’s favor in all respects, holding that three separate grounds barred coverage.
First, the court held that negligent supervision cannot be efficient proximate cause of sexual abuse, noting that no case discussing efficient proximate cause supports the assertion that negligence or negligent supervision can be the efficient proximate cause of an intentional act. Further, on a factual basis “[i]t is not possible that the efficient proximate cause of the sexual abuse was Michelle’s knowledge that it was happening and her failure to stop it.” Accordingly, the suit against the insureds does not allege an occurrence under the policy, and no duty to defend exists.
Second, the intentional act exclusion contained in the policy, which excludes injury “which is expected or intended by any insured or which is the foreseeable result of an act or omission intended by any insured” (emphasis added) applied to exclude coverage for Michelle where Ben committed sexual abuse.
Third, the sexual abuse exclusion, which excludes coverage for bodily injury “arising out of physical or mental abuse, sexual molestation, or sexual harassment” applied to the claim of negligent supervision against insured Michelle Wolk. The court held that the negligent supervision claim necessarily arises out of the sexual abuse.
