The Harper Law Blog

The Harper Law Blog offers news, announcements, thoughts and articles on life, law and our practice areas of emphasis.

Introduction on Bad Faith Insurance

Posted Tuesday, March 07, 2017 by Ed Harper

Introduction on Bad Faith Insurance

When an insurance company is sued for bad faith, proof is required that the insurance company failed to abide by their obligations towards their insured. Washington has several jury instructions regarding Insurance Bad Faith found in WPI 320.00 – .07. This point out the insurer has a duty to act in good faith towards its insured.

The nature of a bad faith action sounds in tort. The case of St. Paul Fire and Marine Insurance Company v. Onvia, Inc., 165 Wn. 2d 122, 190 6P.3d 664 (2008) the Supreme Court of Washington looked at whether the insured had a cause of action for common-law procedural bad faith for violating the Washington Administrative Code (WAC) and/or for violation of the Washington Consumer Protection Act (CPA), even though a court held that the insurer had no contractual duty to defend, settle, or indemnify the insured. The short answer for this is yes, the insurer can be found liable for bad faith for violating either the WAC or the CPA.

In Onvia, “The first certified question asks us to decide whether an insured has a cause of action for mishandling of a claim, once the court has held that the insurer did not breach duty to defend, settle, or indemnify. According to Safeco Insurance Company of America v. Butler, 118 Wn. 2d 383, 389, 820 P.2d 499 (1992) “an action for bad faith handling an insurance claim sounds in tort.” Thus the court went on to analyze these claims applying the same principles as any other tort: duty, breach of that duty, and damages proximately caused by any breach of the duty. Citing Dan Paulson 161 Washington 2nd at 916. Other cites omitted.

Case law also shows that the insurer has a quasi-fiduciary responsibility to act in good faith according to Tank v. State Farm Fire and Casualty Company, 105 Wn. 2d 381, 385 – 86, 715 P 2d 1133 (1986), “The good faith duty between an insurer and insured arises from a source akin to a fiduciary duty. This fiduciary relationship, as the basis of an insurer’s duty of good faith, implies more than the ‘honesty and lawfulness of purpose’ which comprises a standard definition of good faith. It implies an ‘obligation of fair dealing’… And a responsibility to give equal consideration to an insured’s interests” cite omitted.

In Onvia, the court determined that Onvia as the insured sent a request to St. Paul insurance company asking for coverage. St. Paul did not respond to Onvia’s request for more than 8 ½ months, when they denied coverage and denied providing a defense. Onvia assigned their claim to the original plaintiff Responsive Management Systems (RMS) “for claims arising for procedural bad faith in violation of the CPA. RMS alleged that St. Paul violated a number of Washington insurance claims – handling regulations in bad faith, including by failing to timely acknowledge and act upon the notice of the claim and tender of defense, and by failing to promptly or reasonably investigate the claim. St. Paul moved for summary judgment arguing that in absence of a duty to defend, it could not be liable for procedural missteps and processing Onvia’s claim.” Onvia at 165 Wn.2d at 128.

Permalink to this entry

Washington Jury Instruction: Insurance Fair Conduct Act

Posted Tuesday, February 28, 2017 by Ed Harper

Washington Jury Instruction on Insurance Fair Conduct Act

Washington Pattern Instruction 320.06.01 states as follows: “Plaintiff claims that (name of insurer) has violated the Washington Insurance Fair Conduct Act (IFCA). To prove this claim, the plaintiff has the burden of proving each of the following propositions:

1 – that the insurer unreasonably denied a claim for coverage or unreasonably denied payment of benefits or violated a statute or regulation governing the business of insurance handling;

2 – that the plaintiff was injured or damaged; and

3 – that the insurer’s act or practice was a proximate cause of the plaintiff’s injury or damage.

If you find from your consideration of all the evidence that each of these propositions has been proved, your verdict on this claim should be for the plaintiff. On the other hand, if any of these propositions has not been proved, your verdict on this claim should be for the insurer.” (Emphasis has been added.)

In a recent case, Perex-Chrisantos v. State Farm Fire and Casualty Company, 92267-6 (February 2, 2017), the Washington Supreme Court viewed the portion of this instruction “violated a statute or regulation governing the business of insurance claims handling” and was beyond the IFCA provisions. The court stated “on balance, we conclude that the legislative history indicates that IFCA does not create a cause of action for regulatory violations.”

The court mentioned that jury instructions are not law. State v. Brush, 183 Wn. 2nd at 557. When misstating the law, the jury instruction deceives the jury. Instead the court “shall declare the law.” Here, the court determined that the jury instruction incorrectly interpreted the statutory law which articulated and set up IFCA.

Apparently the committee who instituted the pattern jury instruction failed to comprehend that IFCA allows the 1st and 2nd portions and part of the 3rd of the jury instruction but not – solely as violation of a statute or regulation for the case to continue of an IFCA violation. A statutory violation may still be evidence of an unreasonable act or actions by the insurance company, but this does not lead to straightaway proof of an IFCA violation on its own.

The court continued that they felt “it is unlikely the legislature would’ve intended to create a private cause of action for violation of only some of the specific regulations listed in RCW 48.30.015 (5).” Thus, violations of the RCW will provide for additional evidence to be considered in regards to the unreasonable actions of the insurance company,.

Permalink to this entry

Assumption of Risk – Barring of Plaintiff’s Case

Posted Thursday, February 23, 2017 by Ed Harper

Assumption of Risk – Barring of Plaintiff’s Case

Washington Pattern Instruction 13.03 is a complete defense to a plaintiff’s case if properly proved by the defendant. Assumption of risk as a defense has survived the adoption of contributory negligence and the enactment of comparative fault statutes in 1986. As stated previously, 2 parts remain: 1 - implied primary assumption of risk; and 2 – express assumption of the risk

The instruction states as follows “it is a defense to an action for personal injury or wrongful death that the person injured or person killed impliedly assumed a specific risk of harm.

A person impliedly assumes the risk of harm if that person knows of the specific risk associated with a course of conduct or an activity, understands its nature, voluntarily chooses to accept the risk by engaging in that conduct or activity, and impliedly consents to relieve the defendant of a duty of care owed to the person in relation to the specific risk.

The following is optional: [A person’s acceptance of risk is not voluntary if that person is left with no reasonable alternative course of conduct to avoid the harm or to exercise or protect a right or privilege because of the defendant’s negligence.]”

According to the comments in Washington Civil Jury Instructions, “implied primary assumption of risk applies to those situations in which a person, by voluntarily choosing to encounter a known peril, impliedly consents to relieve the defendant of the duty to reasonably plead protect against that peril.” See Prosser and Keaton on Torts, Section 68 (5th edition 1984). Recently a case involving the downing of trees arising out of the Kitsap County action illuminates this principle.

In Gleason v. Cohen, 192 Wn. App. 788, 360 8P 3rd 531, (2016) the appellate court reversed a trial court’s granting summary judgment based on the doctrine of “implied primary” assumption of risk. In Gleason the appellate court focused on the inherent risk of tree cutting as an activity and whether the plaintiff had agreed to hold the defendant not responsible for the defendant’s actions and in causing Plaintiff’s own injuries.

Plaintiff Gleason claimed the defendant Cohen in his workers engaged in additional conduct which thereby increased the risk, the inherent risk, of being injured while cutting down trees. This additional increase in the risk of being injured while cutting down trees is what the court focused on. Gleason alleges that Cohen was negligent in requesting that he cut down the particular tree that injured him because of the trees location. Gleason also alleges that Cohen’s workers were negligent in placing certain choker chains on the tree that injured him. Cohen at 800.

Defendant Cohen, according to the appellate court, had increased the risk inherent in the activity of felling trees, which resulted in the preclusion of summary judgment. As stated above Defendant Cohen had altered several items. Apparently the court considered the fact of these choker chains being set incorrectly increased the inherent risk in cutting down trees and the defendant could still allege the plaintiff’s conduct was potentially contributorily negligent. As a result, plaintiff Gleason’s claim was allowed to go forward.

In summation, the jury instruction regarding implied primary assumption of risk will not be provided to the jury if the defendant’s actions and altered the “inherent risks” in the activity which injured the plaintiff.

Permalink to this entry

Express Assumption of Risk - Plaintiff Assuming the Duty of Care

Posted Tuesday, February 21, 2017 by Ed Harper

Express Assumption of Risk - Plaintiff Assuming the Duty of Care

Washington Pattern Instruction 13.04 is also a complete defense to a plaintiff’s case if properly proved by the defendant. The instruction states: “it is a defense to an action for personal injury or wrongful death that the person injured or person killed expressly assumed a specific risk of harm.

“A person expressly assumes the risk of harm if that person knows of the specific risk involved, understands its nature, and voluntarily consents to accept the risk by agreeing in advance to relieve the defendant of a duty of care owed to the person in relation to the specific risk.”

Express assumption of the risk is based more on contract concept rather than tort, whereas primary assumption of risk arises out of a tort concept. Scott 119 Wn. 2nd 484, 834 P.2d 6 (1992). When the defendant raises the complete defense of express assumption of the risk they are in essence contending that the plaintiff gave the advance consent, in essence contracting with the defendant to relieve the defendant of any duty/responsibility they would have owed to the plaintiff.

The seminal case in the state of Washington is Scott vs. Pac West. Scott, a young man, was injured when he sustained severe head injuries while skiing at a commercial ski resort. Justin Scott was 12 years old at the time of his accident on March 11, 1989. At the time of his injury Justin was attempting to ski on a slalom race course which had been laid out by the ski school owner.

Justin’s mother, Barbara Scott, with Justin’s father’s knowledge and acquiescence, had filled out and signed an application for the ski school.… The following language was included in the application: “for and in consideration of the instruction of skiing, I hereby hold harmless Grayson Connor, and Grayson Connor ski school in any instructor or chaperone from all claims arising out of the instruction of skiing or in transit to or from the ski area. I accept full responsibility for the cost of treatment for any injuries suffered while taking part in the program.” Scott at 119.

Express assumption occurs when the parties agree in advance so one of them is under no obligation to use reasonable care for the benefit of the other and will not be liable for what would otherwise be negligence.… However such assumption only bars a claim with regard to the risks actually assumed by the plaintiff. Scott at 496 – 497. Thus in this case, the language of the purported exculpatory clause contained in the ski school application was sufficiently clear to give notice that the ski school was attempting to be released from liability for its negligent conduct. Scott at 490.

The case goes on to discuss whether a parent can legally waive a child’s future potential cause of action for personal injuries resulting from 1/3 party’s negligence. In short, the answer is no. This will be further discussed at a later date.

Permalink to this entry

Assumption of Risk - The Basics

Posted Monday, February 13, 2017 by Ed Harper

Assumption of Risk – The Basics

Washington pattern instruction 13.00 is an introduction to the defense of Assumption of Risk. This defense utilized by many defendants to counter a personal injury claim. In essence, the defendant blames the plaintiff for their part in their personal injury based on the Plaintiff knowing of a certain risk and voluntarily encountering that risk.

The instruction WPI 13.00 regarding Assumption of Risk is an instruction compilation of several various aspects in the law and it has been quite problematic as a result. In short, the Washington Supreme Court has followed the 4 classifications set forth in Prosser and Keaton on Torts Sec. 68 (5th edition 1984) which illuminates four categories of this theory:

1: Express assumption of the risk2: Implied primary assumption of risk 3: Implied reasonable assumption of risk4: Implied unreasonable assumption of risk.

In the State of Washington, numbers 3 and 4 have been subsumed by contributory negligence with the adoption of comparative fault in 1986.

The case of Klein v. Warner, 98 Wn.2d 316, 650 P2d 94 (1982) highlights one element of Assumption of Risk the defendant has to prove in order to succeed with this defense. The defendant has to prove the plaintiff had knowledge that the risk was present. This leads to the defendant proving the plaintiff’s choice would be free and voluntary.

In Klein, Norman Klein was one of three injured plaintiffs who fell 25-30 feet onto frozen dirt, concrete and pipes because the 24-foot aluminum scaffolding plank on which they were standing collapsed. Klein at 317. The plaintiffs sued the manufacturer of the aluminum scaffolding plank. Apparently there was a stress fracture in the aluminum which presumably led to the collapse of the planking. Testimony indicated that the stress fractures would’ve been difficult if not impossible to see by visual examination. When the trial was held the court instructed the jury as to assumption of risk as a damage – reducing factor, over the respondent’s objections. Klein at 318. The jury reduced plaintiff’s verdict by 75% due to their assuming the risk and the court reduced the damages accordingly. Subsequently, the court also denied plaintiff’s motion for judgment notwithstanding the verdict requesting the court to reinstate the entire verdict.

The appellate court reversed the trial court verdict based on the meritorious factor that “there was no substantial evidence to support the finding that respondents had assumed any of the risk of their injuries.” Klein at 319

The court articulated that “assumption of risk is a damage – reducing factor when there is proof that plaintiff voluntarily and unreasonably proceeded to encounter a known danger.” (Cites omitted.)

The court further stated the evidence must show the respondents knew of the specific defect causing their injuries before the assumption of risk doctrine applies. Klein at 319. In this case as the plaintiff had no knowledge of the specific defect which led to his injuries. The court stated he could not have assumed the risk caused by the defect.

Furthermore, the respondents here may have known that some scaffolding plank may have been defective, but there was admittedly no proof that the plaintiff knew this particular plank was defective. Klein at 320. The court further stated that merely because of the carpenters expertise in their craft and the fact that they knew to inspect the items that they would be relying upon, the scaffolding.

This did not lead the court to believe that they had requisite knowledge in order to allow this instruction to be provided.The court reinstated the entire verdict for the plaintiff.

Permalink to this entry

WSAJ Eagle 2020
Harper Law PLLC
826 6th Street South, Suite 101, Kirkland, WA 98033-6740 US
Phone: 425.284.3333
Fax: 425.284.4286