Beasley v. State Farm Mutual Automobile Insurance Company

Filing 62

ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT; denying pltf's 40 Motion for Partial Summary Judgment; denying dft's 54 Motion for Relief; granting dft's 35 Motion for Summary Judgment by Judge Robert S. Lasnik.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JERYMAINE BEASLEY,

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v.

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Case No. C13-1106RSL

Plaintiff,
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,

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ORDER REGARDING CROSSMOTIONS FOR SUMMARY
JUDGMENT

Defendant.

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I. INTRODUCTION

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This matter comes before the Court on “Defendant State Farm’s Motion for

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Summary Judgment on Causation, and on Fiduciary Duty, Contract and IFCA Claims,”
dkt. # 35, and “Plaintiff’s Motion for Partial Summary Judgment,” dkt. # 40. Having
reviewed the memoranda, declarations, and exhibits submitted by parties, the Court
finds as follows:
II. DISCUSSION

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A.

Background Facts
This matter arises out of a car accident that occurred more than twelve years ago.

At the time of the accident Plaintiff was driving his girlfriend’s car, which was insured

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by Defendant State Farm Automobile Insurance Company (“Defendant” or “State

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Farm”). Dkt. # 28 ¶ 2; Dkt. # 36 at 6. The policy contained personal injury protection

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ORDER REGARDING CROSS-MOTIONS
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(“PIP”) up to $35,000 per person and underinsured motorist (“UIM”)1 coverage up to

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$100,000 per person. Dkt. # 36 at 6, 9.

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On December 10, 2001, Plaintiff made a left turn during a yellow light and was
struck by an oncoming car driven by an uninsured motorist. Dkt. # 45-1 at 29. Plaintiff
and his girlfriend, who was five months pregnant at the time, suffered serious injuries,
which resulted in the loss of Plaintiff’s unborn child. See id. at 30; Dkt. # 45-1 at 37.
State Farm hired an attorney to represent Plaintiff against the claims filed by his
passengers and the passengers and driver of the other vehicle. Dkt. # 28 ¶ 4; Dkt. # 29 ¶

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3. In early 2002, Plaintiff submitted a claim for PIP benefits and executed a release for
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medical and employment records. Dkt. # 45-1 at 37, 41. However, Plaintiff revoked
this release less than one month later. Dkt. # 40 at 68. Plaintiff did not submit a formal
claim for UIM benefits. Instead, Plaintiff’s lawyer sent State Farm a letter that

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referenced a UIM claim generally. Id. In July 2002, State Farm determined that Plaintiff

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was entitled to PIP benefits and UIM benefits for 50% of damages because it found that

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both drivers were equally at fault for the accident. Id. at 70. Plaintiff received PIP

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benefits totaling $15,301.33. Dkt. # 14 ¶¶ 2.26, 2.28.

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The parties resumed communication in 2005 when they began discussing

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arbitration of Plaintiff’s UIM claim.2 Dkt. # 40 at 86. In April of that year, Defendant

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served Plaintiff with discovery requests for the arbitration. Id. at 91-134. Defendant

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also requested a statement of damages from Plaintiff. Id. at 88-90. Several months

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Although Plaintiff refers to his claim for “uninsured motorist (“UM”)” benefits, dkt.
# 44 at 2, the policy provision at issue provides coverage for bodily injuries sustained as a
result of an accident involving an “underinsured motor vehicle,” dkt. # 36 at 29. The Court
therefore refers to these benefits as underinsured motorist benefits (“UIM benefits”).
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It is unclear who demanded arbitration and how the request was made. Defendant
claims that Plaintiff demanded arbitration in 2005, dkt. # 35 at 3, while Plaintiff contends that
Defendant initiated arbitration by sending him discovery requests and other notices on pleading
paper with the heading, “In Arbitration,” dkt. # 44 at 5.
ORDER REGARDING CROSS-MOTIONS
FOR SUMMARY JUDGMENT - 2

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later, Plaintiff sent Defendant his complete PIP file, which included a few medical

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records. Id. at 71, 74. Despite repeated reminders from Defendant, Plaintiff did not

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provide responses to Defendant’s discovery requests until March 25, 2008, nearly three

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years after Defendant served them. Dkt. # 28-2 at 5-12; Dkt. # 40 at 79. The parties

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exchanged limited communications for the following three years, but did not make any
significant progress until March 2011, when Plaintiff executed a release for his medical,
employment and tax records. Dkt. # 40 at 83. After Plaintiff’s deposition in the fall of
2011, State Farm determined that two independent medical examinations (“IMEs”) were

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necessary and arbitration was scheduled for July 5-6, 2012. Dkt. # 28 at 3.
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In March 2012, Plaintiff sent Defendant a letter demanding payment of the UIM
policy limits and providing the requisite 20-day notice of his intent to file an action
under the Washington Insurance Fair Conduct Act (“IFCA”). Dkt. # 36 at 72-78. In his

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letter, Plaintiff claimed that he suffered damages of more than $500,000, including past

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and future medical expenses, loss of past and future income, and noneconomic damages.

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Id. at 73-74. On June 29, 2012, Defendant offered to settle Plaintiff’s claim for $25,000.

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Id. at 82. No explanation of how this number was generated was provided to Plaintiff.

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Plaintiff made a counter-offer to settle his claims, including any IFCA claims, for

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$97,000. Id. at 80. No additional negotiations took place and the parties proceeded to

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arbitration on July 5, 2012.

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The arbitrator found both drivers to be at fault and awarded Plaintiff $72,500 in
total damages. Dkt. # 28-7 at 3, 5. The award was confirmed in a state court action
filed by Plaintiff in September 2012, dkt. # 42 at 21-22, and State Farm paid the award,
costs, and interest, dkt. # 28-8 at 2; dkt. # 28-9 at 2.

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Plaintiff then filed this action in state court asserting claims of breach of contract,
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bad faith, breach of fiduciary duty, negligence, and violations of the Washington

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ORDER REGARDING CROSS-MOTIONS
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Consumer Protection Act (“CPA”) and IFCA. Dkt. # 1 at 18-19. The action was

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removed to this Court in June 2013 and both parties have moved for summary judgment.

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Defendant seeks summary dismissal of all of Plaintiff’s claims. Through his motion for

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partial summary judgment, Plaintiff seeks summary determinations that (a) State Farm

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violated WAC 284-30-330(7) and other regulations, (b) State Farm unreasonably denied
payment of UIM benefits, (c) State Farm violated IFCA, (d) State Farm breached the
insurance contract, and (e) Plaintiff suffered actual damages for purposes of IFCA in the
amount of $72,500.

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B.
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Summary Judgment Standard
Summary judgment is appropriate when, viewing the facts in the light most

favorable to the nonmoving party, the records show that “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). Once the moving party has satisfied its burden, it is entitled to summary

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judgment if the non-moving party fails to designate, by affidavits, depositions, answers

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to interrogatories, or admissions on file, “specific facts showing that there is a genuine

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issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

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All reasonable inferences supported by the evidence are to be drawn in favor of

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the nonmoving party. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061

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(9th Cir. 2002). “[I]f a rational trier of fact might resolve the issues in favor of the

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nonmoving party, summary judgment must be denied.” T.W. Elec. Serv., Inc. v. Pacific
Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). “The mere existence of a
scintilla of evidence in support of the non-moving party’s position is not sufficient.”
Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). “[S]ummary

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judgment should be granted where the nonmoving party fails to offer evidence from
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which a reasonable jury could return a verdict in its favor.” Id.

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C.

Motions to Strike

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As a Preliminary matter, Plaintiff seeks to strike Defendant’s arguments that (1)

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Plaintiff breached the policy and failed to cooperate pursuant to WAC 284-30-370 and

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(2) Plaintiff’s claims are barred by the statute of limitations because Defendant did not

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plead these affirmative defenses in its answer to Plaintiff’s complaint. Dkt. # 44 at 1516; Dkt. # 51 at 1-3. Similarly, Plaintiff asks the Court to strike Defendant’s argument
regarding the sufficiency of Plaintiff’s IFCA notice because Defendant expressly
withdrew this defense during discovery. Dkt. # 44 at 19.

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As a general rule, failure to plead an affirmative defense in a responsive pleading
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constitutes waiver of that affirmative defense. In re Redbox, Inc., 488 F.3d 836, 841
(9th Cir. 2007). The Ninth Circuit, however, has “ ‘liberalized the requirement that
defendants must raise affirmative defenses in their initial pleadings.’ ” Owens v. Kaiser

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Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (quoting Magana v.

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Commonwealth of N. Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 19997)). A

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defendant may raise an affirmative defense at summary judgment so long as “the delay

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does not prejudice the plaintiff.” Magana, 107 F.3d at 1446; see also Camarill v.

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McCarthy, 998 F.2d 638, 639 (9th Cir. 1993) (“In the absence of a showing of prejudice,

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however, an affirmative defense may be raised for the first time at summary

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judgment.”). Plaintiff has not shown prejudice with respect to Defendant’s arguments

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based on failure to cooperate and the statute of limitations. Indeed, Plaintiff may not
demonstrate prejudice based solely on Defendant’s late assertion of a statute of
limitations defense “because the limitations rule, if applicable, would be effective at the
outset of [Plaintiff’s] suit.” Wyshak v. City Nat. Bank, 607 F.2d 824, 826 (9th Cir.

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1979). Thus, the Court deems Defendant’s statute of limitations defense and its
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argument that Plaintiff failed to cooperate properly raised.

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ORDER REGARDING CROSS-MOTIONS
FOR SUMMARY JUDGMENT - 5

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With respect to Defendant’s argument that Plaintiff’s IFCA notice was improper,

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the Court finds that Defendant has not waived that defense. Although Plaintiff is correct

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that Defendant withdrew this defense in response to Plaintiff’s discovery requests, dkt. #

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42 at 64, Plaintiff has not suggested that he has been prejudiced by the late renewal of

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this defense. Because Defendant has supplemented its discovery responses pursuant to
Fed. R. Civ. P. 26(e) and Plaintiff has not demonstrated prejudice, Plaintiff’s motions to
strike are DENIED.
D.

Violation of WAC 284-30-330(1)

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The Washington insurance regulations identify particular claims settlement
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practices that are unfair. Plaintiff argues that Defendant violated WAC 284-30-330(1)
by misrepresenting pertinent facts in its discovery responses during the arbitration of his
UIM claim in 2008. Dkt. # 44 at 11-12; Dkt. # 40 at 16-17. Specifically, Plaintiff

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contends that Defendant “attempted to place all liability for the collision on Plaintiff by

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representing he was cited by police for failing to yield to the uninsured motorist and he

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may have been tried and convicted of the charge,” even though Defendant knew that the

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police officer dismissed the citation. Id. at 11 (internal quotation marks and citation

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omitted). Defendant’s discovery response, however, does not assert a fact, but merely

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summarizes Defendant’s then current belief that Plaintiff “may have been tried and

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convicted of the charge.” As the response itself explains, Defendant was “still looking

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into that aspect of the matter.” Dkt. # 45-4. Moreover, whether Plaintiff was cited or
tried and convicted of failure to yield was not a pertinent fact in the arbitration. From
the inception of Plaintiff’s claim, Defendant consistently represented its determination
that Plaintiff was 50% at fault for the accident. Against this backdrop, Defendant’s

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statement that it was investigating the outcome of the citation was not a
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misrepresentation of a pertinent fact in violation of WAC 284-30-330(1).

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ORDER REGARDING CROSS-MOTIONS
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E.

Violation of WAC 284-30-330(6)
WAC 284-30-330(6) identifies “[n]ot attempting in good faith to effectuate

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prompt, fair and equitable settlements of claims in which liability has become

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reasonably clear” as an unfair and deceptive insurance practice. Plaintiff contends that

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Defendant’s “zero offer” over the course of more than ten years “assumed Plaintiff was
not entitled to recover anything for the [UIM] damages.” Dkt. # 44 at 12 (emphasis in
original). In addition, Plaintiff argues that Defendant’s $25,000 offer to settle the claim
one week before arbitration did not account for certain past and future medical expenses,

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lost earnings, and general damages resulting from the death of his unborn child. Id. at
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13.
Although Plaintiff provided Defendant with the medical records from his PIP file
in 2005, Defendant did not receive evidence of the full extent of his lost wages and

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injuries until 2011. Based on these records and Plaintiff’s deposition in 2011,

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Defendant determined, and the arbitrator agreed, that Plaintiff should undergo two

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IMEs, which were not completed until May 2012. Dkt. # 28-4 at 2; Dkt. # 41 at 43. In

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light of the length of time it took Defendant to obtain Plaintiff’s full medical records and

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the results of the IMEs, Defendant’s delay in offering to settle Plaintiff’s claim until

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June 2012 was not unreasonable.

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Plaintiff’s expert witness report does not create an issue of material fact regarding
the reasonableness of Defendant’s delayed offer. Plaintiff’s expert, Stephen Strzelec,
opines that Defendant failed to comply with its internal policies requiring continual
evaluations of a claim and prompt resolution. Dkt. # 42 at 66-67. However, Mr.
Strzlec’s opinion fails to account for Plaintiff’s revocation of his records release in

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January 2002, id. at 60, and Defendant’s many attempts to obtain information from
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Plaintiff over the course of several years. Although Defendant apportioned fault early in

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ORDER REGARDING CROSS-MOTIONS
FOR SUMMARY JUDGMENT - 7

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the process, the undisputed evidence indicates that Defendant lacked the requisite

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information to adequately value Plaintiff’s claim until 2012.

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Turning to Defendant’s $25,000 offer, the Court finds that no violation of WAC
284-30-330(6) occurred. At the time of this offer, Plaintiff argues, the medical
evaluations conclusively established that the accident caused a cervical strain and/or
facet injury, a strain to the right elbow and aggravation of a preexisting elbow injury, a
strain of the right wrist and injury to his right knee. Dkt. # 40 at 7-8. Plaintiff’s
characterization of the IMEs, however, is not accurate. Dr. Stanley Kopp’s IME

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concluded that the only injuries sustained by Defendant as a result of the accident were
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his neck and elbow injuries. Dkt. # 41 at 46. Dr. Kopp determined that his knee and
wrist injuries were not caused by the accident. Id. at 44-45. When Defendant decided
to offer $25,000 to settle the claim, Defendant relied on Dr. Kopp’s analysis and its

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previous determination that Plaintiff was 50% at fault. Dkt. # 42 at 67-68. Based on the

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evidence regarding Plaintiff’s neck and elbow injuries, Defendant found the total value

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of Plaintiff’s claim to be $50,000-$60,000. Dkt. # 42 at 67. Thus, Defendant’s internal

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valuation of the claim was consistent with the amount offered and reasonably based on

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the information available at the time.

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Again, Plaintiff’s expert’s opinion that Defendant failed to consider several
elements of Plaintiff’s damages when it made the $25,000 offer does not create a
genuine issue of material fact. With respect to Plaintiff’s lost wages, Mr. Strzelec fails
to account for the payments Plaintiff previously received pursuant to the policy’s PIP
coverage. There is no indication that Mr. Strzelec was aware that Defendant had
previously paid the precise amount of lost wages he identified and that as part of the

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settlement offer, Defendant promised not to seek reimbursement of that amount, which
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it would otherwise be entitled to recover pursuant to Hamm v. State Farm Mut. Auto.
Ins. Co., 151 Wn.2d 303 (2004). Dkt. # 36 at 80. Therefore, contrary to Mr. Strzelec’s

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ORDER REGARDING CROSS-MOTIONS
FOR SUMMARY JUDGMENT - 8

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opinion, Defendant accounted for the known lost wages at the time of the settlement

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offer. See Dkt. # 42 at 67-68. As for Plaintiff’s future medical expenses, the

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undisputed evidence reflects that Defendant’s offer contemplated the future medical

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expenses detailed in Dr. Kopp’s report. Dkt. # 42 at 68. Mr. Strzelec’s opinion that

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Defendant failed to account for several known elements of Plaintiff’s damages does not,
therefore, create an issue of fact. Rebel Oil Co., Inc. v. Atl. Richfield Co., 51 F.3d 1421,
1436 (9th Cir. 1995) (Expert opinion is insufficient to create an issue of material fact
when the “opinion is not supported by sufficient facts to validate it in the eyes of the

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law, or when indisputable record facts contradict or otherwise render the opinion
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unreasonable”) (internal quotation marks and citation omitted). The evidence submitted
by Plaintiff directly contradicts his expert’s opinion that Defendant’s $25,000 offer
failed to account for Plaintiff’s known damages. As a matter of law Defendant acted

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honestly based on adequate information. Therefore, no violation of WAC 284-30-

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330(7) occurred. Werlinger v. Clarendon Nat. Ins. Co., 129 Wn. App. 804, 808 (2005)

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(An insurer does not act in bad faith when it “acts honestly, bases its decision on

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adequate information, and does not overemphasize its own interest.”).

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F.

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Violation of WAC 284-30-330(7)
Plaintiff claims that Defendant committed an unfair and deceptive act when it

compelled him to initiate or submit to arbitration by offering substantially less than the
amount ultimately recovered in the arbitration. WAC 284-30-330(7). Washington
courts have determined that there is an implied reasonableness requirement in WAC
284-30-330(7), and therefore, to succeed on this claim Plaintiff must show that
Defendant had no reasonable justification for its conduct. Am. Mfrs. Mut. Ins. Co. v.

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Osborn, 104 Wn. App. 686, 699-700 (2001); Keller v. Allstate Ins. Co., 81 Wn. App.
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624, 633-34 (1996). The difference between the amount of the offer and the final award

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FOR SUMMARY JUDGMENT - 9

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alone is insufficient to show that the insurer acted in bad faith or committed an unfair

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and deceptive act. Keller, 624 Wn. App. at 633.

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Although it is somewhat unclear who initiated the arbitration proceedings, the

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record is clear that discovery in the arbitration proceeding was well under way by the

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time Plaintiff made his first demand for payment under the policy and Defendant made
its first offer to settle. Until the time of Defendant’s offer, Defendant was not in a
position to assess Plaintiff’s damages and make a meaningful offer to settle. Unlike
other cases, see e.g., Morella v. Safeco Ins. Co. of Ill., No. C12-0672RSL, 2013 WL

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1562032, at * 3 (W.D. Wash. April 12, 2013), Defendant did not make a lowball offer to
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try to persuade Defendant not to pursue arbitration. On the contrary, Defendant
investigated Plaintiff’s damages and only after it had obtained sufficient evidence to
properly evaluate Plaintiff’s claim did it offer to settle. At the time of the offer, the

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parties were just days from arbitrating the claim. As explained above, Defendant’s offer

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was based on the information it had available at the time and its determination that

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Plaintiff was partially at fault. Based on this record, the Court cannot find a material

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issue of fact that supports the position that Defendant compelled Plaintiff to submit to

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arbitration by offering to settle the claim for significantly less than the amount that

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Plaintiff was awarded at arbitration.

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G.

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Insurance Fair Conduct Act, RCW 48.30.015
IFCA authorizes “first party claimant[s] to a policy of insurance who [are]

unreasonably denied a claim for coverage or payment of benefits by an insurer [to] bring
an action in superior court of this state to recover the actual damages sustained, together
with the costs of the action, including reasonable attorneys’ fees and litigation costs.”

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RCW 48.30.015(1). Plaintiff argues that Defendant violated multiple sections of WAC
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284-30-330 and these violations constitute per se violations of IFCA. As this Court has
held previously, the language of the statute does not support Plaintiff’s argument. E.g.,

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ORDER REGARDING CROSS-MOTIONS
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Morella, 2013 WL 1562032, at *3 n.2; Country Preferred Ins. Co. v. Hurless, No. C11-

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1349RSM, 2012 WL 2367073, at *3-4 (W.D. Wash. June 21, 2012); Cardenas v.

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Navigators Ins. Co., No. C11-5578RJB, 2011 WL 6300253, at * 6 (W.D. Wash. Dec.

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16, 2011). A violation of WAC 284-30-330 may justify the imposition of treble

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damages under RCW 48.30.015(2) and/or an award of fees and costs under RCW
48.30.015(3), but an underlying denial of coverage or payment is still required.
Plaintiff also contends, albeit briefly, that Defendant violated IFCA by denying

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payment of benefits. Dkt. # 40 at 18-19; Dkt. # 44 at 10 n.5, 13-14. However, the
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record does not support such a finding. Rather, the evidence indicates that Defendant
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complied with the terms of the policy. Defendant made several attempts over the course
of several years to obtain information about Plaintiff’s injuries, medical expenses, and
wage loss. Despite these attempts, Defendant did not receive authorized releases for

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records until March 2011. Less than one month after the arbitrator determined

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Plaintiff’s damages, Defendant paid the full amount of the award. Where, as here, the

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delay in payment is due to a dispute over the amount owed, the delay alone does not

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constitute a denial of payment under IFCA. Hurless, 2012 WL 2367073, at *4; see

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Hann v. Metro. Casualty Ins. Co., No. C12-5031RJB, 2012 WL 3090977, at * 2-4, 9

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(W.D. Wash. June 29, 2012). Defendant cannot be said to have denied payment in these

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circumstances, particularly in light of the fact that Defendant could not assess Plaintiff’s

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damages until it received evidence of Plaintiff’s injuries and wage loss in 2011 and
2012. Morella, 2013 WL 1562032, at *3. Because reasonable minds could not differ as
to the reasonableness of Defendant’s actions, summary judgment is appropriate. Smith
v. Safeco Ins. Co., 150 Wn.2d 478, 486 (2003).

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H.
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Breach of Fiduciary Duty
Plaintiff’s claim for breach of fiduciary duty fails as a matter of law because no

Washington court has recognized a claim for breach of fiduciary duty by an insured.

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See Baker v. Phoenix Ins. Co., No. C12-1788JLR, 2014 WL 241882, at *3 (W.D.Wash.

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Jan. 22, 2014) (collecting cases). The relationship between an insured and the insurer is

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not a true fiduciary relationship. Safe Ins. Co. of Am. v. Butler, 118 Wn.2d 383, 389

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(1992) (“something less than a true fiduciary relationship exists between the insurer and

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the insured”). Contrary to Plaintiff’s contention, RCW 48.01.030 requires that an
insurer and insured act in good faith and preserve the integrity of insurance. It does not
support Plaintiff’s claim that a fiduciary relationship existed between him and
Defendant.

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I.
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Breach of Contract
Plaintiff claims that Defendant breached the terms of the insurance policy, but he

has not identified any specific policy provisions allegedly breached by Defendant. Dkt.
# 1-1 at 12; Dkt. # 44 at 21. Plaintiff’s breach of contract claim appears to stem from

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Defendant’s allegedly unreasonable denial of UIM benefits. See Dkt. # 44 at 21.

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However, Plaintiff has not demonstrated that Defendant breached a particular duty

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imposed by the insurance contract or that the breach proximately caused him damage.

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See Baldwin v. Silver, 165 Wn. App. 463, 473 (2011) (reciting elements for breach of

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contract). Defendant has put forth evidence that it provided UIM coverage and paid the

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full amount of benefits determined by the arbitrator. Dkt. # 28-8 at 2; Dkt. # 28-9 at 2.

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Plaintiff has not identified a breach of contract by Defendant or provided admissible

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evidence that raises a genuine issue of material fact.
J.

Negligence/Bad Faith3
An insurer owes a duty of good faith to its insured and violation of the duty may

give rise to a tort action for bad faith. Smith, 150 Wn.2d at 484. Insurer bad faith
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Although Plaintiff’s complaint appears to allege separate causes of action for
negligence and breach of the duty of good faith, dkt. # 1-1 at 11-12, these claims arise out of
the same conduct, are not distinguishable, and are analyzed applying the same principles of any
other tort. Therefore, the Court considers them as a single cause of action.
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claims are analyzed under the same principles as any other tort: duty, breach, damages

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and proximate cause. Mut. of Enumclaw Ins. Co. v. Dan Paulson Const., Inc., 161

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Wn.2d 903, 916 (2007). The insured has the burden to show that the bad faith or

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negligence of the insurer proximately caused damages to the insured. “To establish bad

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faith, an insured is required to show that the insurer’s actions were unreasonable,
frivolous, or unfounded.” Lloyd v. Allstate Ins. Co., 167 Wn. App. 490, 496 (2012). A
claim of bad faith cannot succeed when the insurer “acts honestly, bases its decision on
adequate information, and does not overemphasize its own interest.” Werlinger, 129

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Wn. App. at 808. Harm is an essential element of every bad faith claim. Id. Because
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bad faith is a question of fact, “[a]n insurer is entitled to a dismissal on summary
judgment if, after viewing the facts in the insured’s favor, a reasonable person could
only conclude that its actions were reasonable.” Id. In addition, an insurer may be

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entitled to summary judgment if a reasonable person could only conclude that the

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insured suffered no harm. Id.

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Defendant seeks dismissal of Plaintiff’s negligence/bad faith claim on the

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grounds that Plaintiff cannot establish the requisite harm and causation. Dkt. # 35 at 9-

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13. Plaintiff has not responded to this argument in the context of his negligence/bad

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faith claim, but he argues generally that Defendant’s conduct caused him to suffer harm

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in the form of “withheld benefits, interest on those benefits, and so on.” Dkt. # 44 at 18.

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The record, however, demonstrates that State Farm paid the full amount of the
arbitration award and interest on that amount promptly after arbitration. Plaintiff has not
established that he suffered any other economic damages resulting from Defendant’s
alleged bad faith. Even though Plaintiff may show harm by demonstrating emotional

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distress suffered as a result of the alleged bad faith conduct, Anderson v. State Farm
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Mut. Ins. Co., 101 Wn. App. 323, 333 (2000), Plaintiff has not shown the existence of
such injury. There is no dispute that Plaintiff suffered emotionally from the accident

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and subsequent loss of his child. However, Defendant did not cause the accident and

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Plaintiff has not shown that he suffered additional harm as a result of Defendant’s

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actions. Plaintiff has not established an essential element of his claim. Defendant is

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therefore entitled to summary dismissal of Plaintiff’s negligence/bad faith claim.

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Werlinger, 129 Wn. App. at 808.
K.

Consumer Protection Act, RCW 19.86 et seq.4
The Washington Consumer Protection Act (“CPA”) prohibits “[u]nfair methods

of competition and unfair or deceptive acts or practices in the conduct of any trade or
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commerce.” RCW 19.86.020. A private cause of action exists under the CPA if (1) the
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conduct is unfair or deceptive, (2) occurs in trade or commerce, (3) affects the public
interest, and (4) causes injury (5) to plaintiff’s business or property. Hangman Ridge
Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780 (1986). An insured

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can establish the first and second elements of a CPA claim by showing the insurer acted

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in bad faith or violated the standards set forth in WAC 284-30-330 through 284-30-410.

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Anderson, 101 Wn. App. at 331.

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Defendant contends that Plaintiff cannot establish the fourth element of a CPA

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claim, causation and injury. Dkt. # 35 at 9-13. As explained above, Plaintiff’s argument

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that he suffered harm in the form of withheld benefits and interest on those benefits

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lacks merit. As was the case with Plaintiff’s bad faith claim, his CPA claim cannot

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survive summary judgment because he has failed to present any admissible evidence

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Plaintiff argues that Defendant did not move for dismissal of either his bad faith claim
or his CPA claim in its motion for summary judgment. Dkt. # 44 at 1 n.1. However,
Defendant’s motion clearly seeks dismissal of Plaintiff’s entire complaint and argues that all of
Plaintiff’s claims fail for lack of causation. Dkt. # 35 at 2, 9-13. Although Defendant’s
analysis of Plaintiff’s CPA claim is brief, the motion does in fact seek dismissal of this claim
due to lack of causation. As for Plaintiff’s bad faith claim, Plaintiff moved for dismissal of all
of Plaintiff’s claims and the Court has already explained Plaintiff’s bad faith claim and
negligence claim are indistinguishable and analyzed using the same framework.
ORDER REGARDING CROSS-MOTIONS
FOR SUMMARY JUDGMENT - 14

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that Defendant’s actions caused injury. In the absence of evidence to support this

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element of his claim, Plaintiff’s CPA claim fails as a matter of law.
III. CONCLUSION

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For all of the foregoing reasons, Defendant’s motion for summary judgment (Dkt.
# 35) is GRANTED and Plaintiff’s motion for partial summary judgment (Dkt. # 40) is
DENIED.5 Defendant’s motion for relief from deadline and for leave to amend the
answer (Dkt. # 54) is DENIED as moot. The Clerk of the Court is directed to enter
judgment in favor of Defendant and against Plaintiff.

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DATED this 16th day of April, 2014.

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A

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Robert S. Lasnik
United States District Judge

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Because the Court finds Defendant entitled to summary judgment on all of Plaintiff’s
claims, the Court has not considered Plaintiff’s arguments regarding his IFCA damages or
Defendant’s affirmative defenses.
ORDER REGARDING CROSS-MOTIONS
FOR SUMMARY JUDGMENT - 15