Washington v. Oregon Insurance Law

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1 Washington v. Oregon Insurance Law Pacific Northwest Chapter of the CPCU Society November 6, 2014 Meeting

2 About Us Misty Edmundson (206) Paul Rosner (206) Soha Lang, PS 1325 Fourth Avenue, Suite 2000 Seattle, WA

3

4 When Claims Go Sideways in Washington Stipulated Settlement Agreements and Judgments with a Covenant Not to Execute A case may be ripe for a settlement involving a covenant judgment and assignment of rights when: When an insured faces a trial that may result in: An excess judgment Some claims which are covered and some which are not A policy limits demand has been made and the insurer does not pay or does not respond; The insured has both appointed defense counsel and personal counsel; and Either the insured or the claimant thinks a bad faith claim against the insurer is viable.

5 When Claims Go Sideways in Washington The assignment of an insured s claims against his/her insurer to a plaintiff typically contains three components. A judgment establishing the insured s liability. A covenant not to execute given by the claimant to the insured, promising that the claimant will not enforce the judgment on any of the insured s assets (other than insurance). An assignment by the insured to the claimant of any rights the insured may have under the insurance policy or against the insurer.

6 When Claims Go Sideways in Washington The deck is stacked against the insurer in a Reasonableness Hearing: No right to jury; Hearing can occur on minimal notice to insurer; Insurer may not be allowed any discovery; Virtually everything is up to discretion of trial judge; Much easier for judge to stamp reasonable, otherwise judge has duty to determine what the reasonable settlement value really is. Once deemed reasonable, rebuttable presumption really isn t Washington Supreme Court extremely anti-insurer

7 Duty to Defend Washington Four Corners plus one way mirror Oregon Strict Four Corners

8 Extrinsic Evidence on the Duty to Defend Washington look outside the complaint to find duty but not to deny. Oregon have not addressed one way mirror but would be inconsistent with case law.

9 Stranger to the Policy Washington: Unsettled whether can look outside the complaint to see if someone is an insured Oregon: In Fred Shearer Sons, Inc. v. Gemini Ins. Co., the Oregon Court of Appeals held that the insurer had a duty to defend based on materials extrinsic to the complaint, rejecting the insurer s argument that it could only look at the complaint and the insurance policy.

10 Pre-Tender Defense Costs Washington : You get them. Oregon : You probably don t get them.

11 Tripartite Relationship Washington: There isn t one. Oregon: The insured is the primary client.

12 Duty to Indemnify Washington: Proof of actual facts establishing coverage. Oregon: The duty to indemnify is established by proof of actual facts demonstrating a right to coverage.

13 Policy Interpretation Washington Apply Washington rules of policy construction. Ambiguities in a policy are generally construed against an insurer and in favor of an insured. Oregon Apply the Oregon rules of policy construction. Ambiguities are resolved against the insurer.

14 Extrinsic Evidence in Policy Interpretation Washington: May look to materials outside of the policy in interpreting the policy under the context rule. Oregon: The Oregon Court of Appeals has held despite ordinary rules of contract interpretation, extrinsic evidence of the parties intent is not a part of the interpretation of an insurance policy under Oregon law.

15 Duty to Settle Washington Liability insurers have a common law duty to settle claims against their insureds. Oregon The duty to defend includes the duty to settle the case within the policy limits if it would be reasonable to do so.

16 Bad Faith Washington The elements of a tort action for bad faith are: 1) breach of the obligation of good faith; 2) injury to the plaintiff; and 3) the bad faith was a proximate cause of the injury. Oregon First Party - First party bad faith claims sound in contract only and not in tort. Third party - When an insurer provides a defense, a bad faith claim may sound in contract or tort, but where an insurer does not defend, the insurer faces liable only in contract.

17 Coverage By Estoppel Washington: You get it. Oregon: To date, Oregon has declined to adopt it.

18 Claim Handling Regulations Washington: The insured may sue for a violation of the Washington s regulations. Oregon: Violations of Oregon s Unfair Claims Settlement Practices is not actionable by the insured.

19 Comparative Bad Faith Washington: Unsettled. Oregon: Rejected.

20 Consumer Protection Laws Washington: The insured may sue for a violation of the Consumer Protection Act. Oregon: Insurance is exempt under the Unlawful Trade Practices Act.

21 Punitive Damages Washington: Does not have them. However, treble damages under the Insurance Fair Conduct Act. Oregon: A statute provides: Punitive damages are not recoverable in a civil action unless it is proven by clear and convincing evidence that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.

22 Attorney Fees Washington may be recoverable under Olympic Steamship, CPA, and IFCA. Oregon Attorney Fees recoverable by Statute, which contains a safe harbor provision.

23 Thank You Misty Edmundson (206) Paul Rosner Soha Lang, P.S. (206) Seattle, WA Fourth Avenue, Suite 2000 The written material contained herein were developed by Soha Lang, P.S. for the benefit the CPCU Society and any use may only be done with express written permission of Soha Lang, P.S. The opinions expressed herein are those the authors and do not necessarily reflect those of their clients or of Soha Lang, P.S.

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