by Jillian Henderson | Sep 19, 2018 | Blog News, Publications
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).
by Rachel Rubin | Jul 20, 2018 | Blog News, Publications
In a 5-4 split decision, the Washington Supreme Court held in
Afoa v. Port of Seattle, No. 94525-0 (July 19, 2018) that RCW 4.22.070.(1)(a) preserves joint and several liability when a defendant is vicariously liable for another’s fault, but whether vicarious liability exists is a factual question.
The Plaintiff, Brandon Apela Afoa, commenced this action against the Port of Seattle for injuries sustained during his employment with an independent contractor operating at Sea-Tac International Airport. At trial, the Port asserted an empty chair defense against four non-party airlines. The jury found the Port retained control over Afoa’s employer’s work, which gave rise to a duty of care to Afoa. The $40 Million verdict was apportioned by the jury as follows: 0.2% to Plaintiff, 25% to the Port, and 74.8% split equally to the four airlines. Plaintiff appealed alleging the Port was vicariously liable for the airlines’ portion of the damages because it had a nondelegable duty to provide a safe workplace.
The Court answered in the negative. The Court found that the meaning of RCW 4.22.070 is clear and unambiguous in that it generally abolishes joint and several liability for concurrent negligence. In examining the legislative intent behind RCW 4.22.070, the Court stated that liability for breach of a nondelegable duty does not undermine the fault allocation under the statute. The Court noted that while the dissent correctly recognized an exception under the statute which would allow a nondelegable duty to result in vicarious liability for an independent contractor’s fault, the Court declined to apply this exception because the jury did not make a factual finding that that the Port retained control over the airlines’ work. The Court held that “[A]n entity that delegates its nondelegable duty will be vicariously liable for the negligence of the entity subject to its delegation, but an entity’s nondelegable duty cannot substitute for a factual determination of vicarious liability when RCW 4.22.070(1) clearly requires apportionment to “every entity which caused the claimant’s damages.””
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.
by Andrew Kamins | Jun 11, 2018 | Blog News, Publications
In an unanimous decision, the Washington Supreme Court held in Durant v. State Farm Mutual Automobile Insurance Company, No. 94771-6 (June 7, 2018), that Washington regulations require automobile policies containing personal injury protection (“PIP”) coverage to pay for all medical and hospital services related to an accident that are reasonable, necessary, and incurred within three years of the accident. The issue came before the Court in the form of two certified questions submitted by the United State District Court for the Western Division in Washington which was adjudicating Durant’s claim that State Farm had wrongly refused to pay PIP benefits for chiropractic treatments arising out of his automobile accident based upon his achieving maximum medical improvement (“MMI”) where his doctor continued to prescribe the treatment as necessary. The Court found that State Farm’s policy violated the plain language of Washington Administrative Code 284-30-395(1) by limiting coverage to those medical expenses that are essential in achieving MMI for the bodily injury sustained in the accident.
The Court answered the first certified question in the affirmative: “Does State Farm’s limitation of medical claims based on its MMI provision violate WAC 284-30-395(1)(a) or (b)?” The Court held that the plain language of the WAC says that an “insurer may deny, limit, or terminate benefits if the insurer determines that the medical and hospital services: (a) Are not reasonable; (b) Are not necessary; (c) Are not related to the accident; or (d) Are not incurred within three years of the accident.” As these are “the only grounds for denial, limitation, or termination of medical and hospital services permitted,” the Court determined that State Farm’s additional MMI requirement violated the statute.
The Court answered the second certified question in the negative: “Is the term ‘maximum medical improvement’ consistent with the definition of ‘reasonable’ or ‘necessary’ as those terms appear in WAC 284-30-395(1)?” The Court found that the MMI limitation “denies Durant his PIP medical benefits necessary to return him to his pre-injury state.” The Court held that the MMI provision was inconsistent with the terms reasonable and necessary because it would exclude palliative care from reasonable and necessary medical expenses which would not fully compensate the insured for actual damages from automobile accidents as required under PIP coverage.
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.
by Paul Rosner | Mar 30, 2018 | Blog News, Publications
Soha & Lang, P.S. Shareholder Paul Rosner will be speaking about insurance bad faith as part of a panel on reputational management at the Puget Sound Adjuster Association’s Spring Symposium on April 6th in Seattle. For more information, go to the PSAA website or click on the link below.
https://drive.google.com/file/d/1PbDj39us_TK3X41mJxW6aklXt1VQtqNL/view
by sohalang | Mar 27, 2018 | Blog News, Publications
In Keodalah v. Allstate Insurance Company, No. 75731-8-1 (Mar. 26, 2018), the Washington Court of Appeals held that an insurance adjuster that handles claims may be held individually liable for bad faith and violation of the CPA. The case involved allegations of bad faith and CPA against an Allstate insurance adjuster in an automobile claim.
The insured was involved in a fatal auto accident with a motorcycle, and made a UIM policy limits demand of $25,000. Allstate assessed the claim and found the insured was 70% at fault, and offered $1,600 to settle the claim. The adjuster was designated as Allstate’s 30(b)(6) witness and claimed that the insured had run the stop sign and been on his cell phone. The adjuster later admitted that was not the case. Allstate then tried to settle the claim for $15,000. The insured declined. At trial, the jury found zero liability on behalf of the insured and awarded him $108,868 for injuries, lost wages and medical expenses. The insured then brought IFCA, bad faith and CPA claims against both Allstate and the adjuster.
The trial court dismissed the individual claims. The Court of Appeals, however, found that the Washington bad faith regulations and CPA both apply to individual adjusters, even if they are working within the scope of their employment. The court concluded: “We hold that an individual employee insurance adjuster can be liable for bad faith and a violation of the CPA”.
If you have any questions regarding this case, please do not hesitate to contact Soha & Lang, P.S.
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 Jillian Henderson | Mar 23, 2018 | Blog News, Publications
In Ohio Security Ins. Co. v. Axis Ins. Co., No. 94677-9, the Washington Supreme Court, on a certified question from the United States District Court for the Western District of Washington, confirms that Washington law establishes that service through the Washington State Insurance Commissioner is the exclusive means of service for authorized foreign insures in Washington. The Court reaches this conclusion based on the plain language, and legislative intent, of RCW 4.28.080(7)(a) and RCW 48.05.200(1).
If you have any questions regarding this case, please do not hesitate to contact Soha & Lang, P.S.
Disclaimer: Any 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
