Member Blogs

  • April 29, 2016 9:07 AM | Anonymous

    Very few developments in Washington insurance law have received more attention over the past five years than the Washington Supreme Court’s ruling in Sedell v. Farmers Ins. Co., 176 Wn.2d. 686, 295 P.2d 239 (2013).  On February 25, 2016, Judge Ronald B. Leighton in the Federal District Court for the Western District of Washington entered an order in Linder v. Great Northern Ins. Co., 2016 U.S. Dist. LEXIS 289, in which the Court granted in part and denied in part a motion for protective order filed by the insurer regarding certain documents and communications between lawyers for the insurer and their client under Sedell.

    The Linder case involved a claim for water loss at the insurer’s home in Kalama, Washington.  Before production of certain correspondence between the lawyers and the insurer, counsel for the insurer redacted and withheld five categories of documents that it claimed were protected from discovery.  The Court conducted an in camera review of the documents to determine if any of the documents were properly withheld as attorney client-privilege and/or work product.  The Court stated the general principle announced in Sedell that Washington Court presume that communications between insurer and its attorney are discoverable, but the insurer may overcome this presumption by showing that its attorney is not engaged “quasi-fiduciary tasks” such as investigating, evaluating, or processing a claim.  When the insurer is instead counseling the client about its potential liability, and the attorney’s mental impressions are not at issue, the insurer’s communications with the attorney are protected.  Under Sedell, the policy holder may overcome the privilege if it makes a showing that “a reasonable person would have a reasonable belief that an act of bad faith tantamount to civil fraud has occurred.”

                In the Linder case, the Court held that the communications between the attorneys at one of the four law firms that communicated with the insurer must be produced under Sedell because they were performing “quasi-fiduciary tasks.”  However, communications between the other three law firms and the insurer need not be produced because they were not performing such tasks and there was no showing that the civil fraud exception applied.  The Court also found that certain legal invoices and billing statements that contained privileged descriptions of its legal work revealed the motive of the client, litigation strategy, and/or the specific nature of the services provided such as researching particular areas of law.  The Court found that these documents were protected under the attorney-client privilege citing to Clarke v. Am. Commerce Nat’l Bank, 974 F.2d 127, 109 (9th Cir.) (1992).

    While the Court in Linder did not announce a new development in the law following Sedell, it is important for insurers operating in Washington to recognize how Washington Courts are interpreting and applying Sedell in various contexts.

  • April 27, 2016 9:06 AM | Anonymous

    On February 23, 2016, Judge Stanley A. Bastian for the United States District Court for the Eastern District of Washington rendered a potentially important decision on how insurance bad faith claims that may otherwise be time barred by the three-year statute of limitations may survive under Washington’s four-year statute of limitations for Consumer Protection Act (CPA) claims.

    In Taylor v. Allstate Ins. Group and Allstate Prop. and Cas. Ins. Co., 2016 U.S. Dist. LEXIS 22065, the Court had previously granted the insurers’ motion for summary judgment dismissing the policyholder’s contractual-based claims because the lawsuit was not filed until after the one-year suit limitation provision in the insurance contract.  On the insurer’s subsequent motion for dismissal of the remaining extra-contractual claims, the Court granted the insurer’s motion for summary judgment regarding the insurer’s claims under the Insurance Fair Conduct Act (IFCA) and insurance bad faith, both of which have three-year statute of limitations.  Citing to Moraitti ex rel. Tarutis v. Famers Ins. Co. of Wash., 162 Wn. App. 495, 502 (2011), the Court found that the insured submitted no evidence of conduct that violated IFCA or constituted insurance bad faith that occurred within three years prior to the filing of the lawsuit.

    However, the Court found that the insured had submitted evidence pertinent to a possible a CPA violation within the four-year statute of limitations.  The Court also found that because a bad faith claim could be predicated on a CPA claim under Salois v. Mut. of Omaha Ins. Co., 90 Wn.2d. 355, 359 (1978), the insured may be able to pursue the insurance bad faith claim despite the fact that it would be otherwise barred by the three-year statute of limitations.

    The Court stopped short of ruling that the bad faith claims in that case could survive while finding that “ruling on the merits of those issues is beyond the scope of this order.”  However, this is a significant ruling as it could allow policyholders to boot-strap bad faith claims that would otherwise be barred by the three-year statute of limitations to CPA claims that may survive a statute of limitations defense.

  • April 25, 2016 9:03 AM | Anonymous

    On January 14, 2016, the Washington State Supreme Court rendered an important decision on when an injury “arises out of” the use of a vehicle for the purpose of uninsured motorist (“UIM”) coverage.

    In Kroeber v. GEICO Insurance Co., a woman was shot outside a bar by the driver of an uninsured vehicle, and sought UIM coverage from her automobile insurer. The woman’s insurer, GEICO, provided coverage for damages that the insured was legally entitled to recover from the owner or operator of an uninsured motor vehicle due to bodily injury sustained and caused by an accident, provided that the liability of the owner or operator of an uninsured motor vehicle arises out of the ownership, maintenance or use of the uninsured motor vehicle. GEICO denied the claim because the woman’s injuries did not arise out of the use of the uninsured motorist’s truck, and she sued for coverage.

    Prior Washington courts had found that the phrase “arising out of” in a UIM policy does not mean proximate cause, but indicates a lesser standard of causation having some relationship to or connection with the use, maintenance or ownership of the uninsured vehicle. The Kroeber court concluded that existing case law did not establish that the vehicle or an attachment to it need be the direct cause of the injury, but that the injury must have a causal relationship to the condition of the vehicle, a permanent attachment thereto, or some aspect of its operation. Thus, the court found, the phrase “arising out of” should be broadly construed to mean a mere causal connection between the injury and the use of the vehicle. The court distinguished situations where the vehicle serves as the “mere situs” of the accident, and noted that the distinction and determination for when the use of a vehicle causes the injury versus when it is the mere situs of the injury is a factual determination to be made by the trial court.

    Kroeber is significant because it opens the potential for UIM coverage for injuries that are not directly caused by the vehicle, but are the independent actions of the operator of the vehicle at the time of the incident.

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