FILED THE HONORABLE MARY YU HEARING DATE: OCTOBER 25, 2013, WITH ORAL ARGUMENT

Transcription

1 FILED OCT AM : THE HONORABLE MARY YU HEARING DATE: OCTOBER,, KING AT COUNTY :00AM WITH ORAL ARGUMENT SUPERIOR COURT CLERK E-FILED CASE NUMBER: ---1 SEA 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 THIRD-PARTY DEFENDANTS ROBERT ARCHER AND ROBERT O. ARCHER INSURANCE AGENCY, INC.'S REPLY IN SUPPORT OF MOTION TO DISMISS DEFENDANT/THIRD-PARTY PLAINTIFF GREENE'S CLAIMS PURSUANT TO CR (b)() (b)() - 1 S E A T T L E, W A S H I N G T O N ( 0 )

2 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. Third-Party Plaintiffs Damian Greene and Damian J. Greene Insurance Agency, Inc. (hereinafter, collectively Greene ) attempt to state a claim against Third-Party Defendants Robert Archer and Robert O. Archer Insurance Agency, Inc. (hereinafter, collectively Archer ) in this contractual dispute between Greene and Plaintiff/Third-Party Defendant Farmers Insurance is ill-founded and without merit. 1 Here, as outlined below, Greene posits baseless legal conclusions that are not sufficient to overcome Archer s Motion to Dismiss. See Haberman v. Wash. Pub. Power Supply Sys., Wn.d, 0, P.d () (holding the court need not accept legal conclusions as correct. ). Greene s Response fails to craft even a hypothetical situation that is legally sufficient to support his claims against Archer, and accordingly, dismissal is warranted. See Gorman v. Garlock, Inc., Wn.d, P.d (0) (citing Halvorson v. Dahl, Wn.d,, P.d 0 ()) ( any hypothetical situation conceivably raised by the complaint defeats a CR (b)() motion [it must be] legally sufficient to support plaintiff s claim. ) (emphasis added). // // // 1 By proffering matters outside the pleading in his Response, Greene attempts to convert Archer s Motion to Dismiss to a motion under CR. However, Greene simultaneously requests that, if this Court is inclined to treat Archer s motion as a motion under CR, this Court should grant him additional time to conduct unidentified discovery (pursuant to CR (f)) before disposing of the motion. Moreover, by inserting matters outside the pleadings in his Response, Greene denies Archer the opportunity to rebut on strict reply. This Court should not hesitate to disregard the Declarations of both Ian Birk and Roy Pollock offered by Greene as outside the scope of Archer s CR (b)() Motion to Dismiss. (b)() - S E A T T L E, W A S H I N G T O N ( 0 )

3 A. Consumer Protection: Greene Has Not and Cannot Meet the Public Interest Element. There are no facts alleged in either the Complaint or Response that Archer committed a deceptive act that was intended to deceive or had the capacity to deceive a substantial portion of the public. See Hangman Ridge, Wn.d at ( Only acts that have the capacity to deceive a substantial portion of the public are actionable. ). The purpose of the public interest requirement is to exclude actions arising from single transactional disputes. See Anhold v. Daniels, Wn.d 0,, P.d (0). Greene alleges that Farmers illegal bait and switch tactic had and continues to have an impact on the public interest, and in the Response, Greene alleges that Archer condoned the bait and switch. Response at pg. :-. This legal conclusion is insufficient to overcome a Motion to Dismiss. See Haberman, Wn.d at 0. B. Unjust Enrichment: Greene Has Not and Cannot Establish the Required Elements as to a Claim Against Archer. There are no facts asserted in the Complaint, or even hypothetical facts posited in Greene s Response to Archer s Motion to Dismiss, establishing the requisite elements of a claim for unjust enrichment: (1) Greene conferred a benefit upon Archer; () Archer knew about the benefit; and () Archer s accepting the benefit without payment is inequitable or unjust. Austin v. Ettl, 1 Wn. App.,, P.d (). Greene s claim for unjust enrichment is as follows:. Famers, Horner, and Archer were unjustly enriched by the misappropriation and unauthorized use of Greene s name and/or likeness well after his separation from them. Greene cites no authority in support of his conclusion that the concerted act theory applies to a CPA claim, allegedly arising from a transactional dispute. (b)() - S E A T T L E, W A S H I N G T O N ( 0 )

4 . Plaintiffs were further unjustly enriched by their material breach of their contract with Greene as set forth above. Greene is alleging: (1) Farmers used his name and/or likeness to obtain business, but did not compensate him for it; and () Farmers benefited from the business Greene brought in, and then Farmers failed to make the required contractual payments to Greene after he left Farmers. There is no connection made between these actions and Archer in either the Complaint of Greene s Response. Neither the Complaint nor Greene s Response posit any factual scenario, hypothetical or otherwise, to connect Archer with Farmers alleged actions. Even further, no facts posited by Greene even hypothesize that Mr. Archer participated in same, or even had knowledge of same. Accordingly, Greene s argument that the Archer and Farmers acted in concert falls flat. Notably, Greene ignores both the holding and facts in Westview Investments, Ltd. V. U.S. Bank Nat. Ass n, Wn. App.,, P.d (0). The Westview Court found an issue of material fact as to plaintiff/subcontractor s conversion and breach of trust claims against U.S. Bank arising from its seizure of funds deposited to benefit the plaintiff where there was evidence that: U.S. Bank knew that Construction Associates was a general contractor and that most of its accounts receivable were payments made by property owners for the benefit of [plaintiffs] subcontractors. Id. at 0-1. U.S. Bank then took the affirmative step of seizing the funds, despite that knowledge, in accordance with the terms of a forbearance agreement between U.S. Bank and Construction Associates. Id. at -. On that record, the Court permitted the claims to reach the jury, but cautioned that the plaintiff was still required to prove the underlying tort allegedly committed by both to succeed under a concerted action theory at trial. Id. at. The material breach of the contract by Famers alleged is as follows:. Plaintiffs breached the 01 contract with Defendant Greene by failing to tender the contract installment payments as promised.. Plaintiffs also breached the 01 contract by making a material modification of the contract terms without obtaining mutual assent in writing from both parties. (b)() - S E A T T L E, W A S H I N G T O N ( 0 )

5 Here, Greene has not posited that Archer knew or in any way participated in the alleged misappropriation and unauthorized use of Greene s name and/or likeness, and/or the alleged materially breach of contract by failing to tender contract installment payments. There are no facts asserted to support the existence of an agreement between Farmers and Archer to commit either act, and that Archer participated or facilitated Farmers in any way. Dismissal of this claim as to Archer is warranted. C. Constructive Fraud Neither Greene s Complaint nor his Response establish the necessary elements to prove constructive fraud. Williams v. Joslin, Wn.d,, P.d 0 (). Instead, both the Complaint and the Response posit a legal conclusion that Archer s alleged conduct had the effects of fraud and constitute[] the tort of constructive fraud. Again, this is baseless legal conclusion that is insufficient to overcome a Motion to Dismiss on this claim. See Haberman, Wn.d at 0. CONCLUSION For the above mentioned reasons, Archer s motion should be granted. DATED this st day of October,. 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. (b)() - S E A T T L E, W A S H I N G T O N ( 0 )

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: 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 Plaintiffs and Third-Party Defendant Foremost Insurance Company William C. Smart, WSBA No. Ian S. Birk, WSBA No. 1 Keller Rohrback, LLP 01 Third Avenue, Suite 0 Seattle, Washington 1 Phone: () -00 Fax: () - wsmart@kellerrohrback.com ibirk@kellerrohrback.com cjarman@kellerrohrback.com smckeon@kellerrohrback.com George A. Mix, WSBA No. Mix Sanders, PLLC Fifth Avenue, Suite 00 Seattle, Washington 1 Phone: () - Fax: george@mixsanders.com Attorneys for Defendants / Third-Party Plaintiffs Damian Greene and Damian J. Greene Insurance Agency, Inc. (X) Via Legal Messenger ( ) Via Facsimile ( ) Via U.S. Mail (X) Via Legal Messenger ( ) Via Facsimile ( ) Via U.S. Mail (X) Via Legal Messenger ( ) Via Facsimile ( ) Via U.S. Mail (b)() - S E A T T L E, W A S H I N G T O N ( 0 )

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 (X) Via Facsimile (X) Via U.S. Mail SIGNED AND DATED this st day of October,, at Seattle, Washington. LEGAL\\ /0.000 COZEN O'CONNOR By: /s/ Bonnie L. Enera Bonnie L. Enera, Legal Assistant (b)() - S E A T T L E, W A S H I N G T O N ( 0 )