Washington Supreme Court rules Consumer Protection Act protects out-of-state consumers and allows claims against out-of-state defendants for acts of in-state agent

On December 10, 2015, the Washington Supreme Court affirmatively answered the following certified questions from the United States District Court for the Western District of Washington:

1.    Does the Washington Consumer Protection Act (“CPA”) create a cause of action for a plaintiff residing outside Washington to sue a Washington corporate defendant for allegedly deceptive acts?

2.      Does the Washington Consumer Protection Act create a cause of action for an out-of-state defendant for the allegedly deceptive acts of its in-state agent?

The Plaintiff, Sandra C. Thornell, in this putative class action lawsuit is a Texas resident. Ms. Thornell’s son was involved in a car accident in Texas, and the other motorist was insured by State Farm Mutual Automobile Insurance Company (“State Farm”), a corporation with its principal place of business in Illinois.   State Farm paid for the damages to its insured’s vehicle, and then pursued Ms. Thornell for an unliquidated claim based on subrogated interest from its insured.  Ms. Thornell alleged that she received three deceptive debt collection letters from Seattle Service Bureau Inc. (SSB), a corporation with its principal place of business in Washington, pursuant to the referral of unliquidated subrogation claims to SSB by State Farm.

The Washington Supreme Court answered both questions in the affirmative.  Addressing Question 1, the Supreme Court noted that the CPA provides “‘[a]ny person’ can sue for a violation”, “‘[c]ommerce’ includes ‘any commerce directly or indirectly affecting the people of the state of Washington’”,  and “the CPA ‘shall be liberally construed that its beneficial purposes may be served’” (emphasis in original). The court stated that a broad reading of this language is appropriate and supported by prior case law, and that it does not matter whether “commerce” is out-of-state if it affects the “people of the state of Washington,” even indirectly.  Therefore, the court held “[t]he CPA does allow claims for an out-of-state plaintiff against all persons who engage in unfair or deceptive acts that directly or indirectly affect the people of Washington”.

Addressing Question 2, the Supreme Court gave a brief summary of the general rule of an agency relationship, and concluded that “[t]he ‘fact’ that the principal in this case is an out-of-state entity does not change this. A principal cannot send agents into a state to commit CPA violations in order to avoid liability by virtue of its out-of-state residence.” The Supreme Court clarified that the United States District Court would have to determine whether an agency relationship existed.

Soha and Lang attorneys are available to assist insurer clients in understanding and addressing the impact of this decision.

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.

Congratulations to Paul Rosner, J.D., CPCU for Receiving the Ralph Bowden Award for Excellence

On November 4, 2015,   Soha & Lang Shareholder Paul Rosner, J.D., CPCU was awarded the 2014-2015 Ralph Boden Award for Excellence by the Pacific Northwest Chapter of the CPCU Society. The award was created to honor Ralph Boden’s long term commitment to the CPCU society and its mission of promoting excellence through ethical behavior and continuing education.    The award, which was presented during the chapter’s All Industry Day, recognizes Paul’s continuing commitment to insurance education both locally and nationally. 

Oregon Supreme Court Overrules Precedent on Stipulated Judgments

            On November 19, 2015, the Oregon Supreme Court overruled forty-year-old precedent holding that a plaintiff's covenant not to execute a judgment obtained in a settlement with an insured-defendant extinguishes the insured-defendant's liability to the plaintiff and, by extension, the liability of the defendant's insurer, as well.

            In Brownstone Homes Condo. Assn. v. Brownstone Forest Hts. et al, No. SC S061273255 (Or Nov 19, 2015), a homeowners association (“Association”) sued a siding subcontractor, A&T, for negligence and breach of contract.  A&T had two insurers:  Zurich and Capitol.  Capitol initially undertook a defense of the action, but later declined to defend or indemnify A&T.  The Association, A&T and Zurich settled the claim without Capitol’s participation.  Under the settlement, A&T agreed to a stipulated judgment of $2 million, of which Zurich paid $900,000.  The Association agreed not to execute on A&T’s assets, and A&T assigned its claims against Capitol to the Association.  The settlement agreement was entered on March 14, 2008 and judgment was entered on November 13, 2008.  Subsequent to entry of judgment, the Association filed a garnishment proceeding against Capitol seeking the $1.1 million balance.  The trial court dismissed the garnishment action based on Stubblefield v. St. Paul Fire & Marine, 267 Or 397, 517 P2d 262 (1973), which held that a stipulated settlement, coupled with a covenant not to execute, extinguished liability.  The Oregon Court of Appeals affirmed the trial court.  On further review, the Oregon Supreme Court reversed.  In doing so, the court expressly overruled Stubblefield: 

In short, we conclude that Stubblefield erred when it concluded that a covenant not to execute obtained in exchange for an assignment of rights, by itself, effects a complete release that extinguishes an insured’s liability and, by extension, the insurer’s liability as well.  It necessarily follows that the trial court in this case likewise erred in concluding that the existence of such a covenant not to execute as a component of the parties’ settlement agreement had the effect of extinguishing A&T’s liability to [the Association] and, as a result, had the effect of extinguishing Capitol’s liability as well.

Accordingly, under Oregon law, a covenant not to execute on a judgment obtained in exchange for an assignment of rights against the judgment debtor’s insurance carrier, does not, by itself, extinguish an insured’s liability and, thus,  does not extinguish the insurance carrier’s obligation for the consent judgment.  The court specifically limited its ruling to this narrow issue, declining to address, for example, whether collusion or fraud in the settlement may supply grounds for rejecting a stipulated or consent settlement.

Washington Supreme Court Rules on Meaning of "Collapse"

On June 18, 2015, the Washington Supreme Court answered the following certified question from the Ninth Circuit Court of Appeals regarding the meaning of the undefined term “collapse” under the first party property coverage of a  policy State Farm issued to a homeowners association:

What does “collapse” mean under Washington law in an insurance policy that insures “accidental direct physical loss involving collapse,” subject to the policy’s terms, conditions, exclusions, and other provisions, but does not define “collapse,” except to state that “collapse does not include settling, cracking, shrinking, bulging or expansion?”

The Washington Supreme Court first held that the undefined term “collapse” is ambiguous.  The court then turned to the language of the State Farm policy and held:

 

“Collapse” in the Policy means the substantial impairment of structural integrity of a building or part of a building that renders such building or part of a building unfit for its function or unsafe in a manner that is more than mere settling, cracking, shrinkage, bulging, or expansion.

Queen Anne Park Homeowners Ass’n v. State Farm Fire & Cas. Co.  No. 90651-3, *8 (June 18, 2015).   

 

The Supreme Court explained that under the terms of the State Farm policy, “collapse” must mean something more than mere “settling, cracking, shrinking, bulging or expansion.”  Id.  at *7.  The court also noted that “structural integrity” of a building means a building’s ability to remain upright and “substantial impairment” means a severe impairment.  Id.  Taken together, the court said “’substantial impairment’ of ‘structural integrity’ means an impairment so severe as to materially impair a building’s ability to remain upright.” Id.  

Soha and  Lang attorneys are available to assist insurer clients in understanding and addressing the impact of this decision both during the claims handling process and after an allegation of bad faith claims handling has been made.

 

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.