FILED THE HONORABLE MARY YU HEARING DATE: SEPTEMBER IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING

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1 FILED AUG PM 1: THE HONORABLE MARY YU HEARING DATE: SEPTEMBER KING COUNTY, SUPERIOR COURT CLERK E-FILED CASE NUMBER: ---1 SEA 1 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING FARMERS INSURANCE COMPANY OF WASHINGTON, a Washington corporation; FARMERS INSURANCE EXCHANGE, a foreign insurance exchange; FIRE INSURANCE EXCHANGE, a foreign insurance exchange; TRUCK INSURANCE EXCHANGE, a foreign insurance exchange; MID-CENTURY INSURANCE COMPANY, a California corporation; and FARMERS NEW WORLD LIFE INSURANCE COMPANY, a Washington corporation, v. Plaintiffs, DAMIAN GREENE, an individual; DAMIAN J. GREENE INSURANCE AGENCY, INC., a Washington corporation; SOLEYON INSURANCE PARTNERS, INC., a Washington corporation; JOSH BERG, an individual d/b/a BLUE LION BROKERS; BLUE LION BROKERS, LLC, a Washington limited liability company; and DOES -, Defendants. No SEA THIRD-PARTY DEFENDANTS ROBERT ARCHER AND ROBERT O. ARCHER INSURANCE AGENCY, INC.'S JOINDER OF THIRD-PARTY DEFENDANT FARMERS GROUP INC. S MOTION TO DISMISS DEFENDANT/THIRD-PARTY PLAINTIFF GREENE'S COUNTERCLAIMS PURSUANT TO CR 1(b)() AND ARCHER S MOTION TO DISMISS DEFENDANT/THIRD-PARTY PLAINTIFF GREENE'S CLAIMS PURSUANT TO CR 1(b)() PARTY PLAINTIFFS GREENE'S CLAIMS - 1 LEGAL\0\ /0.000

2 DAMIAN GREENE, an individual; DAMIAN J. GREENE INSURANCE AGENCY, INC., a Washington corporation, v. Third-Party Plaintiffs, FOREMOST INSURANCE COMPANY, a foreign insurance company; DONALD HORNER, an individual d/b/a DON HORNER AGENCY; ROBERT ARCHER, an individual; ROBERT O. ARCHER INSURANCE AGENCY, INC., a Washington corporation, Third-Party Defendants. 1 I. INTRODUCTION AND RELIEF REQUESTED Third-Party Defendants Robert Archer and Robert O. Archer Insurance Agency, Inc., (hereinafter, collectively, Archer ), by and through their attorneys of record, Cozen O Connor, files this Joinder to Third-Party Defendant Farmers Group, Inc. s Motion to Dismiss Defendant Greene s Counterclaims Pursuant to CR 1(b)(), (hereinafter, FGI s Motion to Dismiss ) and respectfully incorporates all facts, legal arguments, and prayer for relief made by Farmers Group, Inc. in its Motion. In addition, Archer asks for the independent relief of an Order dismissing Defendants/Third Party Plaintiffs Damian Greene and the Damian Greene Insurance Agency, Inc. s (hereinafter, collectively, Greene ) claims against Archer, asserted in Greene s Answer to Second Amended Complaint, and Amended Counterclaim and Third-Party Claims of Defendants Greene, dated July 1,. Greene fails to allege any facts to support his Third- Party claims against Archer, and accordingly, this Court should dismiss those claims, with prejudice. PARTY PLAINTIFFS GREENE'S CLAIMS - LEGAL\0\ /0.000

3 1 II. STATEMENT OF FACTS By reference herein, Archer incorporates the Statement of Facts from FGI s Motion to Dismiss as if pled herein. Plaintiffs filed this lawsuit in December against Greene. On July 1,, Greene filed an [Amended] Answer to Second Amended Complaint, and Amended Counterclaim and Third-Party Claims of Defendants Greene (hereinafter, Amended Answer and Third-Party Claims ). This pleading, for the first time, asserted claims against new third-party defendants Robert Archer and the Robert O. Archer Insurance Agency, Inc. Archer is the District Manager for FGI s Washington District. The (disputed) factual references to Archer in the Amended Answer and Third-Party Claims are as follows:. Defendant Greene immediately contacted his District Manager, Bob Archer, to object to Mr. Horner setting up his office less than one mile away on the same road.. Despite Defendant Greene s objections, Mr. Archer explained there was nothing Farmers could do to stop Mr. Horner and that Farmers could not deny any individual the right to earn a living. III. STATEMENT OF THE ISSUE By reference herein, Archer incorporates the Statement of the Issue from FGI s Motion to Dismiss as if pled herein. In addition, Archer posits the following parallel issue:. Whether all of Greene s claims against Third-Party Defendants Archer should be dismissed under CR 1(b)(), because Greene s Amended Answer and Third-Party Claims allege no facts whatsoever to support any claim for relief against Archer? IV. EVIDENCE RELIED UPON In support of this Joinder and Motion to Dismiss, Archer relies upon the records and pleadings on file in this matter. PARTY PLAINTIFFS GREENE'S CLAIMS - LEGAL\0\ /0.000

4 1 V. AUTHORITY AND ANALYSIS By reference herein, Archer incorporates the Legal Authority from FGI s Motion to Dismiss as if pled herein. In addition, Greene s third-party claims against Archer should likewise be dismissed as follows: A. Greene Fails to Allege Facts to Sustain A Cause of Action under Washington s Consumer Protection Act, RCW., Et Seq. Greene s first Third-Party claim against Archer asserts a violation of the Consumer Protection Act, RCW.. To state a claim under the CPA, Greene must show (1) an unfair or a deceptive act or practice; () occurring in trade or practice; () public interest impact; () injury to Greene in his business or property; and () a causal link between the unfair or deceptive acts and the injury suffered by Greene. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., Wn.d, 0, P.d 1 (). Greene fails to allege any facts at all to support these elements as to Archer, his former district manager. In particular, Greene woefully fails to even attempt to allege any facts that meet elements 1,,, or. Accordingly, dismissal of Greene s Third-Party claim against Archer is warranted. B. Greene Fails to Allege Facts to Sustain a Cause of Action for Unjust Enrichment. Greene s second Third-party claim against Archer is for unjust enrichment. The elements of said claim in Washington are: (1) plaintiff conferred a benefit upon the defendant; () the defendant knew about the benefit; and () the defendant s accepting the benefit without the payment is inequitable or unjust. Austin v. Ettl, 1 Wn. App.,, P.d (1). Greene fails to allege any facts to support these elements as to Archer. There is no allegation that Third-Party Plaintiffs Greene even conferred a benefit upon Archer, nor that Archer failed to compensate Greene for any alleged benefit. The claim fails as to Archer because it is inadequately pled and improper, pursuant to CR 1(b)(). PARTY PLAINTIFFS GREENE'S CLAIMS - LEGAL\0\ /0.000

5 1 C. Greene Fails to Allege Facts to Sustain a Cause of Action for Constructive Fraud. Greene s third and final third-party claim against Archer is for constructive fraud. Constructive fraud is an action in equity, and requires, at a minimum, evidence of a the existence of a legal duty and a breach thereof. See Dexter Horton Bldg. Co. v. King County, Wn.d, 1, 1 P.d 0 (1). Greene fails to allege any facts to support the existence of a duty owed by Archer to Greene and a breach thereof by Archer. Greene asserts that Archer owed a fiduciary duty [arising from] its implied and actual promises to pay contract value Archer was not a party to any contract with Greene, and there are no allegations in the Amended Answer and Third Party Claims that establish otherwise. Accordingly, this claim fails as to Archer and should be dismissed, pursuant to CR 1(b)(). VI. CONCLUSION For all of the foregoing reasons, as well as the facts and authority in FGI s Motion to Dismiss, the Court should grant both Third-Party Defendants FGI and Archer s Motions to Dismiss Defendant/Third-Party Plaintiffs Greene s claims. DATED this th day of August,. COZEN O'CONNOR By: /s/ William F. Knowles William F. Knowles, WSBA No. Charlotte A. Archer, WSBA No. 0 Attorneys for Third-Party Defendants Robert Archer and Robert O. Archer Insurance Agency, Inc. PARTY PLAINTIFFS GREENE'S CLAIMS - LEGAL\0\ /0.000

6 CERTIFICATE OF SERVICE The undersigned certifies, under penalty of perjury under the laws of the State of Washington, that the foregoing document was served upon the interested parties in the manner indicated below: 1 Molly M. Daily, WSBA No. 0 Timothy W. Snider, WSBA No. 0 Stoel Rives, LLP 00 University Street, Suite 00 Seattle, Washington 1 Phone: () -000 Fax: () mmdaily@stoel.com twsnider@stoel.com Attorneys for Plaintiff William C. Smart, WSBA No. Ian S. Birk, WSBA No. 1 Keller Rohrback, LLP Third Avenue, Suite 0 Seattle, Washington 1 Phone: () -00 Fax: () - wsmart@kellerrohrback.com ibirk@kellerrohrback.com George A. Mix, WSBA No. Mix Sanders, PLLC Fifth Avenue, Suite 0 Seattle, Washington 1 Phone: () - Fax: george@mixsanders.com Attorneys for Defendants / Third-Party Plaintiffs Damian Greene and Damian J. Greene Insurance Agency, Inc. ( ) Via Legal Messenger ( ) Via Overnight Courier ( ) Via Facsimile (X) Via U.S. Mail (X) Via ( ) Via Legal Messenger ( ) Via Overnight Courier ( ) Via Facsimile (X) Via U.S. Mail (X) Via ( ) Via Legal Messenger ( ) Via Overnight Courier ( ) Via Facsimile (X) Via U.S. Mail (X) Via PARTY PLAINTIFFS GREENE'S CLAIMS - LEGAL\0\ /0.000

7 Patrick L. Hinton, WSBA No. Golbeck Roth, PLLC Post Office Box Bainbridge Island, Washington 1 Phone: () - Fax: () - patrick@hintonlawoffice.com Attorneys for Third Party Defendant Donald Horner d/b/a Don Horner Insurance Agency ( ) Via Legal Messenger ( ) Via Overnight Courier ( ) Via Facsimile (X) Via U.S. Mail (X) Via 1 SIGNED AND DATED this th day of August,, at Seattle, Washington. COZEN O'CONNOR By: /s/ Bonnie L. Enera Bonnie L. Enera, Legal Assistant PARTY PLAINTIFFS GREENE'S CLAIMS - LEGAL\0\ /0.000

8 THE HONORABLE MARY YU 1 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING FARMERS INSURANCE COMPANY OF WASHINGTON, a Washington corporation; FARMERS INSURANCE EXCHANGE, a foreign insurance exchange; FIRE INSURANCE EXCHANGE, a foreign insurance exchange; TRUCK INSURANCE EXCHANGE, a foreign insurance exchange; MID-CENTURY INSURANCE COMPANY, a California corporation; and FARMERS NEW WORLD LIFE INSURANCE COMPANY, a Washington corporation, v. Plaintiffs, DAMIAN GREENE, an individual; DAMIAN J. GREENE INSURANCE AGENCY, INC., a Washington corporation; SOLEYON INSURANCE PARTNERS, INC., a Washington corporation; JOSH BERG, an individual d/b/a BLUE LION BROKERS; BLUE LION BROKERS, LLC, a Washington limited liability company; and DOES -, Defendants. DAMIAN GREENE, an individual; DAMIAN J. GREENE INSURANCE AGENCY, INC., a Washington corporation, v. Third-Party Plaintiffs, No SEA [PROPOSED] ORDER GRANTING THIRD-PARTY DEFENDANTS FARMERS GROUP, INC., ROBERT ARCHER, AND ROBERT O. ARCHER INSURANCE AGENCY, INC.'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO CR 1(B)() [PROPOSED] ORDER GRANTING THIRD-PARTY DEFENDANTS FARMERS GROUP, INC., ROBERT ARCHER, AND ROBERT O. ARCHER - 1 LEGAL\1\ /0.000

9 1 FOREMOST INSURANCE COMPANY, a foreign insurance company; DONALD HORNER, an individual d/b/a DON HORNER AGENCY; ROBERT ARCHER, an individual; ROBERT O. ARCHER INSURANCE AGENCY, INC., a Washington corporation, Third-Party Defendants. THIS MATTER having come on duly and regularly before the undersigned Judge of the above-entitled Court upon Third-Party Defendants Farmers Group, Inc., Robert Archer, and Robert O. Archer Insurance Agency, Inc. s Motion to Dismiss Defendant/Third Party Plaintiffs Damian Greene and Damian J. Greene Insurance Agency, Inc. s Counterclaims and Claims, Pursuant to CR 1(b)(), and the Court having reviewed the files and records herein, including the following: 1. Third-Party Defendant Farmers Group Inc. s Motion to Dismiss for Failure to State a Claim Pursuant to CR 1(b)();. Declaration of Timothy W. Snider in Support of Farmers Group Inc. s Motion to Dismiss for Failure to State a Claim, Pursuant to CR 1(b)();. Third-Party Defendants Robert Archer and Robert O. Archer Insurance Agency, Inc.'s Joinder of Third-Party Defendant Farmers Group Inc. s Motion To Dismiss Pursuant To CR 1(b)() and Archer s Motion To Dismiss Defendant/Third-Party Plaintiff Greene's Claims Pursuant To CR 1(b)(); informed,. ; and.. and the Court having heard the arguments of counsel and being otherwise fully IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Third-Party Defendants Farmers Group, Inc., Robert Archer, and Robert O. Archer Insurance Agency, Inc. s Motion to Dismiss Defendant/Third Party Plaintiffs Damian Greene and Damian J. [PROPOSED] ORDER GRANTING THIRD-PARTY DEFENDANTS FARMERS GROUP, INC., ROBERT ARCHER, AND ROBERT O. ARCHER - LEGAL\1\ /0.000

10 Greene Insurance Agency, Inc. s Counterclaims and Claims, Pursuant to CR 1(b)() is hereby GRANTED. DONE IN OPEN COURT this day of,. Honorable Mary Yu 1 Presented by: COZEN O'CONNOR By: /s/ William F. Knowles William F. Knowles, WSBA No. Charlotte A. Archer, WSBA No. 0 Attorneys for Third-Party Defendants Robert Archer and Robert O. Archer Insurance Agency, Inc. STOEL RIVES By: Timothy W. Snider, WSBA No. 0 Molly Daily, WSBA no. 0 Attorneys for Third-Party Defendant Farmers Group, Inc. [PROPOSED] ORDER GRANTING THIRD-PARTY DEFENDANTS FARMERS GROUP, INC., ROBERT ARCHER, AND ROBERT O. ARCHER - LEGAL\1\ /0.000