Wang v. Esurance Insurance Company

 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 LINH WANG, CASE NO. C24-0447-JCC 10 Plaintiff, ORDER 11 v. 12 ESURANCE INSURANCE COMPANY, 13 Defendant. 14 15 16 This matter comes before the Court on the parties’ cross-motions for summary judgment 17 (Dkt. Nos. 62, 70). Having thoroughly considered the briefing and relevant record, the Court 18 GRANTS in part and DENIES in part Plaintiff’s motion (Dkt. No. 62) and DENIES Defendant’s 19 motion (Dkt. No. 70) as described herein. 20 I. BACKGROUND 21 This is an underinsured/uninsured motorist (“UIM”) insurance alleged bad faith case 22 involving injuries Plaintiff suffered while riding in a vehicle driven by her husband, Celso Wang 23 (hereinafter referenced as “Mr. Wang”). (See generally Dkt. No. 44.) On August 25, 2017, Mr. 24 Wang drifted across State Route 524, colliding with a vehicle driven by Lan Duong (hereinafter 25 “Ms. Duong”). (See, e.g., Dkt. No. 71-1.) At the time, Plaintiff was in the back of the vehicle and 26 unrestrained. (See Dkt. No. 71-4 at 3.) She was thrown forward and reported hitting her head. 1 (See Dkt. No. 71-5 at 3.) First responders, upon arriving at the scene, noted that Plaintiff seemed 2 confused, with a visible forehead hematoma. (See Dkt No. 71-4 at 2–3.) Plaintiff refused 3 transport, indicating her husband would take her to the hospital, which he did a few hours later. 4 (Id. at 3.) 5 At the emergency room, providers diagnosed Plaintiff with whiplash and a forehead 6 contusion. (Dkt. No. 71-5 at 2–3.) She visited urgent care in the following days, where she 7 complained of dizziness, atypical speech, and forgetfulness. (Dkt. No. 71-35 at 5.) Doctors told 8 Plaintiff that her symptoms would resolve. (Id.) They did not. (Id. at 4–6.) Persistent symptoms 9 included headaches, impaired cognitive function, dizziness, visual and auditory disturbances, 10 aches and pains, anxiety (especially when riding in a car), depression, and irritability. (See Dkt. 11 No. 63-6 at 3–4.) Plaintiff endured a litany of therapeutic and diagnostic procedures and/or 12 interventions over the next few years, without full relief. (Id. at 6–18.) 13 In August 2020, Plaintiff filed suit against Mr. Wang and Ms. Duong for resulting 14 medical expenses and non-economic harms, i.e., pain and suffering and emotional trauma. (See 15 Dkt. No. 85-1 at 7.) Ms. Duong settled her case for $15,000 (less than her $100,000 State Farm 16 auto policy limit). (See Dkt. Nos. 63-43 at 2, 71-19 at 12, 71-25 at 2, 71-27 at 2–3.) Mr. Wang— 17 and by extension Defendant—then became the sole party liable for Plaintiff’s harms, as the 18 couple maintained an auto insurance policy with Defendant. (Dkt. No. 40-4.) Applicable policy 19 limits were $250,000 liability, $10,000 personal injury protection (“PIP”), and $250,000 UIM. 20 (See Dkt. No. 71-6 at 3.) Eventually, Defendant paid Plaintiff the $10,000 in PIP, along with Mr. 21 Wang’s $250,000 liability policy limit. (See Dkt. Nos. 71-13 at 2, 71-24 at 2.) This left the 22 $250,000 UIM policy, which Plaintiff first demanded in 2019. (Dkt. Nos. 63-4 at 3, 71-20 at 2.) 23 In support, Plaintiff provided Defendant with medical summaries and supporting 24 documentation. (See Dkt. No. 63-6 at 3–9.) This included a November 2019 neuropsychological 25 evaluation, diagnosing a “mild traumatic brain injury/concussion.” (Dkt. No. 63-7 at 2–4.) 26 1 Nevertheless, Defendant refused Plaintiff’s UIM demand,1 contending that other available 2 coverage would sufficiently compensate Plaintiff. (See Dkt. No. 71-26 at 2.)2 Defendant did not 3 further formally explain its basis for its refusal(s), even when requested to do so. (Dkt. No. 62 at 4 11–12.) This is because, according to Chris Geweke, Defendant’s Rule 30(b)(6) deponent, “a 5 response [to Plaintiff’s request] wasn’t warranted” as “it was clear . . . this particular matter was 6 headed to arbitration.” (Dkt. No. 63-22 at 19.) 7 Thus, the parties turned to arbitration, which occurred in May 2023. (See Dkt. Nos. 52 at 8 2, 63-28, 71-30 at 2.) In preparation, Defendant engaged ophthalmologist Timothy Carey, M.D., 9 as its sole medical expert (despite Plaintiff’s reported constellation of medical complaints). (See 10 Dkt. Nos. 63-29 at 2–4, 71-30 at 2–3.) Dr. Carey performed a medical records review and issued 11 a report finding no causal connection between the accident and Plaintiff’s reported symptoms. 12 (See generally Dkt. No. 71-31.) Dr. Carey noted that Plaintiff had a pre-existing visual esotropia 13 for which Plaintiff sought surgical treatment in a third-world country. (See Dkt. No. 71-31 at 42.) 14 This was not correct—Dr. Carey later conceded that he mixed up Plaintiff’s file with another’s 15 (at least partly). (See Dkt. No. 63-36 at 2.) Despite this error, Defendant did not retract Dr. 16 Carey’s report or otherwise disclose the matter to Plaintiff or the arbitrator. (See Dkt. Nos. 52 at 17 3, 84 at 8–9.) Instead, Defendant elected not to call Dr. Carey to testify at the arbitration 18 proceeding. (See Dkt. Nos. 63-34, 63-35.) But the arbitrator still considered Dr. Carey’s report. 19 (See Dkt. No. 52 at 3.) Although she limited consideration of the report to Plaintiff’s alleged 20 visual deficiencies, given Dr. Carey’s lack of expertise elsewhere. (See Dkt. No. 63-38 at 5.) 21 Based on the totality of evidence presented, the arbitrator found Plaintiff “met her burden 22 of proof relating to her claimed symptoms being the result [of the auto accident].” (Id.) She then 23 awarded Plaintiff $513,143, comprised of $113,143 in past and future economic damages, i.e., 24 25 1 Plaintiff calls this refusal a “denial,” (Dkt No. 62 at 9), while Defendant says it was a “letter . . . rejecting [Plaintiff’s] demand,” (Dkt. No. 70 at 9). 26 2 Defendant reiterated this position after Plaintiff submitted additional supporting medical evidence. (See Dkt. Nos. 63-24, 63-25, 63-26, 63-27.) 1 medical bills, and $400,000 in past and future non-economic damages. (Id. at 6.) However, this 2 did not end the story, as the parties remained at odds regarding offsets, which they presented to 3 the arbitrator, who again sided with Plaintiff. (See Dkt. Nos. 63-43 at 2, 63-45 at 2, 63-48 at 4.) 4 With this, Defendant paid the full UIM policy limit. (See Dkt. No. 63-49 at 2.) 5 In April 2024, given her protracted pursuit for UIM payment(s), Plaintiff sued Defendant 6 in Snohomish County Superior Court, asserting bad faith claim handling, along with negligence, 7 breach of contract, and violations of Washington’s Consumer Protection Act (“CPA”) and its 8 Insurance Fair Conduct Act (“IFCA”). (See generally Dkt. No. 1-2.) Defendant removed the 9 matter to this Court. (Dkt. No. 1.) 10 In anticipation of trial, the parties cross-move for summary judgment. As a preliminary 11 matter, Plaintiff moves to strike some of Defendants’ experts’ opinions. (Dkt. Nos. 93 at 14–16, 12 99 at 1–4.) Plaintiff then seeks judgment as a matter of law as to the following: (a) the preclusive 13 effect of the prior arbitration to this matter, i.e., collateral estoppel; (b) all of Plaintiff’s claims; 14 and (c) some of Defendant’s affirmative defenses. (See generally Dkt. No. 62.) Defendant, in 15 contrast, seeks judgment as a matter of law in its favor on most of Plaintiff’s claims. (See 16 generally Dkt. No. 70.) 17 II. DISCUSSION 18 A. Plaintiff’s Motion to Strike 19 Plaintiff first asks the Court to strike the following expert opinions: Linda Wray, M.D.’s 20 and Ting Ting Zhou M.D.’s medical opinions, along with Lola Hogan’s insurance good faith 21 opinion. (Dkt. Nos. 93 at 14–16, 99 at 1–4); (see Dkt. Nos. 70 at 8, 9, 18–18, 21, 22, 25; 84 at 18 22 n.85, 20 n.96, 22 n.102, 23 n.106) (the briefing and exhibits at issue). 23 As to doctors Wray and Zhou, Plaintiff contends that, because Defendant did not consider 24 those opinions when denying Plaintiff’s UIM claim, Defendant cannot now offer such opinions. 25 (See Dkt. Nos. 93 at 14–16, 99 at 1–3.) Specifically, says Plaintiff, doing so would run afoul of 26 Federal Rules of Evidence 401, 402, 403, and 702. (See id.) But, as previously explained, Dr. Zhou’s report (Dkt. No. 71-35) speaks to what Defendant should have known about Plaintiff’s 1 injuries based on the records available when it denied Plaintiff’s UIM claim. (See Dkt. Nos. 44 at 2 9–10, 60 at 4.) The same is true for Dr. Wray’s opinions. (See Dkt. No. 71-24.) Thus, these 3 medical opinions satisfy Rules 401, 402, 403, and 702 (at least for purposes of the instant 4 motion(s)). 5 However, Ms. Hogan’s insurance industry opinion (Dkt. No. 90-1) is another matter. 6 Plaintiff contends that Ms. Hogan’s report solely offers legal opinions and/or opines on ultimate 7 issues in this matter. (See Dkt. No. 99 at 3–4.) As such, it is of no help to the fact finder, 8 meaning, it fails to satisfy Rule 702, and further runs afoul of Rules 401, 402, and 403 (albeit for 9 different reasons). (Id.) The Court already ruled that Ms. Hogan’s opinion is excluded pursuant 10 to Rule 702. (See Dkt. No. 60 at 2–4.) There is no need to retread that ruling here. 11 Accordingly, the Court DENIES Plaintiff’s motion to strike with respect to Dr. Zhou’s 12 and Dr. Way’s opinions but GRANTS the motion with respect to Ms. Hogan’s opinion. The 13 report (Dkt. No. 90-1) and all references to it in Defendant’s briefing (Dkt. Nos. 84 at 18 n.85, 20 14 n.96, 22 n.102) are hereby STRICKEN for purposes of rendering a decision on the parties’ cross- 15 motions. 16 B. Parties’ Cross-Motions 17 1. Legal Standard 18 “The court shall grant summary judgment if the movant shows that there is no genuine 19 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 20 Civ. P. 56(a). When considering such a motion, the Court views the facts and justifiable 21 inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. 22 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Accordingly, summary judgment is appropriate 23 against a party who “fails to make a showing sufficient to establish the existence of an element 24 essential to that party’s case, and on which that party will bear the burden of proof at trial.” 25 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Conversely, if that showing is made, the 26 opposing party “must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting 1 Fed. R. Civ. P. 56(e)). 2 2. Collateral Estoppel 3 Plaintiff first asks the Court to find that the arbitration award precludes Defendant from 4 now arguing that Plaintiff was entitled to less than the full $250,000 policy limit (i.e., collateral 5 estoppel applies in this instance as a matter of law). (Dkt. No. 62 at 19.) Again, Defendant 6 already paid the UIM policy limit. (See Dkt. No. 63-49 at 2.) But it now contends it need not 7 have done so. Rather, it should only have paid $238,143 (the $513,143 arbitration award, net of 8 offsets for the $10,000 PIP, Mr. Wang’s $250,000 liability, and Ms. Duong’s $15,000 9 settlement). (See Dkt. No. 84 at 13–16.) 10 Under Washington law,3 “collateral estoppel, or issue preclusion, bars relitigating an 11 issue involving the same parties.” Christensen v. Grant Cnty. Hosp. Dist. No. 1, 96 P.3d 957, 960 12 (2004). For the doctrine to apply, the proponent must establish that (1) the issue decided in the 13 earlier proceeding was identical to the issue presented in the later proceeding, (2) the earlier 14 proceeding ended in a judgment on the merits, (3) the party against whom collateral estoppel is 15 asserted was a party to, or in privity with a party to, the earlier proceeding, and (4) application of 16 collateral estoppel does not work an injustice on the party against whom it is applied. Id. at 961. 17 There is no dispute that these elements are satisfied. (See generally Dkt. Nos. 62 at 19– 18 21, 84 at 12–16, 99 at 4–6.) Instead, resolution of Plaintiff’s request appears to rise or fall on the 19 interpretation of the arbitrator’s award. Following the award here, the parties sought clarification 20 on the amount of offset available,4 presenting the following options to the arbitrator: $10,000 in 21 PIP, Mr. Wang’s $250,000 liability settlement, and Ms. Duong’s State Farm policy (whether that 22 be the $100,000 policy limit or the resulting $15,000 settlement). (See Dkt. No. 63-45 at 2.) In 23 3 The Court, sitting in diversity, applies Washington’s collateral estoppel rules. Jacobs v. CBS 24 Broad., Inc., 291 F.3d 1173, 1177 (9th Cir. 2002). 4 Defendant’s initial position was that Ms. Duong’s full $100,000 State Farm policy limit should 25 be available, even though Plaintiff ultimately settled with Ms. Duong for only $15,000. (See Dkt. 26 Nos. 63-42 at 2, 63-46 at 2, 63-47 at 2.) Thus, said Defendant, only $153,143 need be paid from UIM coverage to satisfy the arbitration award. (Id.) Unsurprisingly, Plaintiff disagreed, maintaining that the full UIM limit of $250,000 was due and owing. (See Dkt. No. 63-46 at 2.) 1 response, the arbitrator noted that amounts “legally available” could offset the award but not the 2 “the full policy limits.” (Dkt. No. 63-48 at 4) (citing Allstate Ins. Co. v. Dejbod, 818 P.2d 608, 3 613 (Wash. Ct. App. 1991). 4 When again queried as to whether Defendant should “interpret this to mean that we are 5 not entitled to offset [Ms. Duong’s] State Farm policy,” the arbitrator indicated “[y]ou may offset 6 the amount that the Plaintiff received from the underlying policy.” (Dkt. 63-48 at 3–4) (emphasis 7 added). From this, for inexplicable reasons, Defendant concluded that only Mr. Wang’s 8 $250,000 liability settlement could be used as an offset. (See Dkt. No. 63-49 at 2.) This is not in 9 accordance with what the arbitrator’s determination. Rather, she adjudged that, in addition to the 10 $250,000 Mr. Wang liability policy (and settlement), Ms. Duong’s $15,000 settlement should 11 offset the award (rather than her $100,000 State Farm policy limit). 12 What the arbitrator did not address, though, is what to do with the PIP. (See generally 13 Dkt. 63-48 at 2–4.) By statute, UIM applies to the extent that “all bodily injury or property 14 damage liability bonds and insurance policies . . . is less than the applicable damages which the 15 covered person is legally entitled to recover.” RCW 48.22.030(1). And here, the policy bars 16 duplicate payments (which is what Plaintiff now argues for in seeking what she describes as 17 summary judgment on collateral estoppel). (See Dkt. No. 40-4 at 14.) As such, the answer is 18 clear: PIP offset is warranted. See Keenan v. Indus. Indem. Ins. Co. of the N.W., 738 P.2d 270, 19 273 (Wash. 1987), (overruled on other grounds by Price v. Farmers Ins. Co. of Washington, 946 20 P.2d 388 (Wash. 1997)); see, e.g., Safeco Ins. Co. v. Woodley, 8 P.3d 304, 308 (Wash. Ct. App. 21 2000) (affirming trial court’s reduction of UIM award for PIP benefits paid based on right to 22 recovery policy language). 23 Thus, the Court GRANTS in part and DENIES in part summary judgment to Plaintiff on 24 the issue of collateral estoppel. It finds as a matter of law that both PIP and Ms. Duong’s 25 settlement should offset the UIM coverage (along with Mr. Wang’s liability settlement). As a 26 1 result, Plaintiff was entitled to is $238,1435 in UIM, rather than the $250,000 she received. 2 Nevertheless, this $11,857 overpayment has no import on the viability of Plaintiff’s claims in 3 this case, as addressed below. 4 3. IFCA 5 IFCA provides a right of action for an unreasonable coverage denial or benefit payment. 6 See RCW 48.30.015. Here, it is unrefuted that Defendant paid the UIM policy limit. (See Dkt. 7 No. 63-49 at 2.) But this is not dispositive. While there is no controlling authority, and the 8 persuasive authority is conflicting, it is the Court’s present view that a policy limit payment does 9 not necessarily defeat a cause of action for an IFCA violation. See Cohodas v. Contl. Ins. Co., 10 717 F. Supp. 3d 1008, 1014–15 (W.D. Wash. 2024) (collecting cases). Rather, at issue is whether 11 the delayed payment resulted from a “good faith dispute” over the claim’s value. Id. at 1015. 12 Plaintiff argues that by assigning no value to Plaintiff’s UIM claim (prior to arbitration), 13 Defendant made an unreasonable denial or benefit payment. (See Dkt. Nos. 62 at 27–28, 93 at 14 17–21.) This is somewhat misleading. According to the uncontroverted record, Defendant valued 15 Plaintiff’s injuries, just did so at less than other available coverage. (See, e.g., Dkt. No. 85-2 at 16 2–3) (as of March 2021, Defendant estimated $42,472 in medical expenses and between $75,000 17 and $125,000 in non-economic damages). While this produced a zero UIM valuation, that is not 18 the same as saying Defendant did not assess Plaintiff’s damages at all (or that Defendant’s 19 assessment was facially unreasonable). See, e.g., Gamble v. State Farm Mut. Automobile Ins. 20 Co., 2020 WL 6286816, slip op. at 4 (W.D. Wash. 2020) (IFCA mandates that insurer must 21 make a “reasoned evaluation of the facts”). 22 Rather, it appears the parties were generally in agreement regarding Plaintiff’s medical 23 expenses, at least on what she incurred to date. But the parties diverged on Plaintiff’s likely 24 future medical expenses and the quantum of her non-economic harms more generally. This was, 25 26 5 Again, this is comprised of the following: the $513,143 arbitration award, offset by the $10,000 PIP, $250,000 Mr. Wang’s liability, and Ms. Duong’s $15,000 settlement. 1 in part, because (a) Plaintiff was in a prior auto accident (so it was difficult to discern the distinct 2 medical impacts from each accident) and (b) she continued to work throughout the adjustment 3 period (suggesting minimal impact(s) from the current accident). (See, e.g., Dkt. Nos. 86-7 at 3– 4 8; 87-4 at 5–6, 15–16.) Fundamentally, the reasonableness of the parties’ valuation divergence is 5 a genuine issue of fact for which the Court will not usurp the jury’s role in addressing. See, e.g., 6 Jin v. GEICO Advantage Ins. Co., 700 F. Supp. 3d 988, 992–93 (W.D. Wash. 2023) (declining to 7 resolve similar IFCA-related questions “at this stage of the case”). 8 Accordingly, the Court DENIES summary judgment to both parties on Plaintiff’s IFCA 9 cause of action. 10 4. Bad Faith / Negligent Claim Adjustment 11 Plaintiff argues that Defendant demonstrated negligence and bad faith throughout the 12 protracted UIM claim adjustment process, (Dkt. No. 62 at 21–27), which caused Plaintiff 13 emotional distress and frustration, including feelings of discrimination. (See, e.g., Dkt. No. 94-15 14 at 4–16.) Plaintiff concedes that the amount of harm, and thus the appropriate recovery, remains 15 a question of fact. (See Dkt. No. 93 at 25.) Nevertheless, the parties seek summary judgment on 16 foundational issue(s). 17 Insurer bad faith and negligence claims “are analyzed applying the same principles as any 18 other tort: duty, breach of that duty, and damages proximately caused by any breach of duty. To 19 establish bad faith, an insured is required to show the breach was unreasonable, frivolous, or 20 unfounded.” St. Paul Fire & Marine Ins. Co. v. Onvia, Inc., 196 P.3d 664, 668 (Wash. 2008). In 21 the UIM context, “‘the insurer must deal in good faith and fairly as to the terms of the policy and 22 not overreach the insured, despite its adversary interest.’” Ellwein v. Hartford Acc. and Indem. 23 Co., 15 P.3d 640, 647 (Wash. 2001), as amended (Jan. 18, 2001), overruled on other grounds by 24 Smith v. Safeco Ins. Co., 78 P.3d 1274 (2003) (quoting Hendren v. Allstate Ins. Co., 672 P.2d 25 1137, 1141 (N.M. App. 1983)). And to establish negligence, a plaintiff need only demonstrate 26 that and insurer “fail[ed] to use ordinary care” even if it did not “act in bad faith.” First State Ins. Co. v. Kemper Nat. Ins. Co., 971 P.2d 953, 959 (Wash. Ct. App. 1999) 1 In her complaint, Plaintiff contends that Defendant violated RCW 48.01.030 and WAC 2 284-30-330, 360 by virtue of (a) Defendant’s pre-arbitration (zero) valuation of Plaintiff’s UIM 3 claim, (b) Defendant’s alleged lack of supporting medical evidence for its valuation, (c) its 4 alleged failure to explain the basis for its valuation (or otherwise effectively communicate on the 5 issue prior to arbitration), and (d) Defendant’s use of Dr. Carey’s flawed medical report during 6 the arbitration process. (Dkt. No. 1-2 at 6–19, 22–23.) In cross-moving, the parties alternatively 7 suggest there are no genuine issues of fact regarding what did or did not occur (or at least 8 whether such conduct would constitute bad faith and/or negligence), and thus they each seek 9 judgment as a matter of law as to Plaintiff’s causes of action. (See Dkt. Nos. 62 at 21–27, 70 at 10 19–23.) 11 The Court notes as a starting point that Defendant’s approach to Dr. Carey’s report is 12 troubling. Plaintiff presents uncontested evidence that the report contained a serious error, (see 13 Dkt. No. 63-36 at 2), and that Defendant knew about the error yet failed to notify anyone 14 throughout the arbitration process (even going so far as to resubmit the report after discovering 15 the error), (see Dkt. Nos. 63-30 at 21, 63-34 at 2, 63-35 at 2). And, again, it is uncontroverted 16 that the arbitrator considered the report (including the error) when assessing Plaintiff’s visual 17 injuries. (See Dkt. Nos. 52 at 3, 63-38 at 5.) In response, Defendant suggests that this was a 18 “simple error” which Plaintiff’s expert noted prior to arbitration so Defendant had no obligation 19 to disclose it. (Dkt. No. 84 at 22–24.) This rationale is beyond the pale. Defendant’s conduct is a 20 clear a violation of 284-30-330(1) and RCW 48.01.030 (and likely Washington’s Rules of 21 Professional Conduct). No reasonable juror could conclude otherwise. Accordingly, the Court 22 finds, as a matter of law, that this conduct represents bad faith claim processing (and if for some 23 reason it were not, it certainly would be negligent claims processing). 24 The facts surrounding Plaintiff’s remaining bad faith and negligence assertions are less 25 clear. Plaintiff contends that, based on the alleged conduct described above, Defendant violated 26 WAC 284-30-330(2), (4), (7), (13), and WAC 284-30-360(3). (See Dkt. No. 62 at 23–27.) But the record establishes genuine issues of fact as to each; specifically, what took place and whether 1 it was reasonable on Defendant’s part and/or comported with industry norms for UIM claims 2 processing. (See, e.g., Dkt. Nos. 63-22 at 2–19, 63-23 at 2–23, 63-25 at 4–15, 63-27 at 2, 63-30 3 at 2–38, 71-33 at 11–15, 71-35 at 2–24, 85-1 at 2–7, 85-2 at 2–4, 86-9 at 2, 86-7 at 2–31.) 4 Accordingly, the Court GRANTS summary judgment to Plaintiff on its bad faith claim as 5 it relates to its conduct surrounding Dr. Carey’s report at arbitration but DENIES summary 6 judgment to the parties on the remaining bad faith and/or negligent claims processing assertions. 7 If this matter proceeds to trial and resulting damages are assessed based on Defendant’s use of 8 Dr. Carey’s report at arbitration, given the egregiousness of this conduct, at a minimum, the 9 Court is inclined to treble that amount and award attorney fees in accordance with RCW 10 48.30.015(2), (3). 11 5. CPA 12 Plaintiff also contends that Defendant’s conduct violated the CPA. (Dkt. No. 62 at 28– 13 29.) To prevail, Plaintiff must establish each of the following: “(1) unfair or deceptive act or 14 practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in 15 his or her business or property; (5) causation.” Hangman Ridge Training Stables, Inc. v. Safeco 16 Title Ins. Co., 719 P.2d 531, 533–35 (Wash. 1986); RCW 19.86.060. “Violations of WAC 284- 17 30-330 are per se violations of [the CPA].” Truck Ins. Exch. V. Vanport Homes, Inc., 58 P.3d 18 276, 284 (Wash. 2002) (citing Leingang v. Pierce Cty. Med. Bureau, Inc., 930 P.2d 288, 297 19 (Wash. 1997)). Similarly, an insurer’s “bad faith constitutes a per se violation of the CPA.” 20 Ledcor Indus. (USA), Inc. v. Mut. Of Enumclaw Ins. Co., 206 P.3d 1255, 1262 (Wash. Ct. App. 21 2009). 22 Thus, Defendant’s use of Dr. Carey’s report at arbitration satisfies the first three elements 23 of a CPA claim,6 leaving to the jury only the quantum of injury and causation. Conversely, and 24 for similar reasons, the Court cannot find that there is or is not a CPA violation as a matter of 25 law for the other alleged conduct,7 as genuine issues of fact remain regarding what Defendant 26 6 See supra Section II.B.4. 7 Id. 1 did and whether that conduct was reasonable. Accordingly, the Court GRANTS summary 2 judgment to Plaintiff on her CPA claim as to the first through third elements, solely with respect 3 to Defendant’s use of Dr. Carey’s report at arbitration, and DENIES summary judgment to both 4 parties on all remaining aspects of Plaintiff’s CPA claim. 5 6. Breach of Contract 6 Finally, Plaintiff asserts Defendant breached its insurance contract with Plaintiff, when 7 viewed through the lens of Washington’s duty of good faith for such agreements. (See Dkt. No. 8 1-2 at 23–24.) Plaintiff seeks summary judgment based on this assertion. (Dkt. No. 62 at 29–30.) 9 Indeed, insurance contracts contain an implied duty of good faith. See St. Paul Fire and Marine 10 Ins. Co. v. Onvia, Inc., 196 P.3d 664, 667 (2008). But Plaintiff fails to explain how such a duty 11 applies in a UIM context, where the insurer “stand(s) in the shoes of the tortfeasor.” Hamm v. 12 State Farm Mut. Auto. Ins. Co., 88 P.3d 395, 397 (2004). (See generally Dkt. Nos. 62 at 29–30, 13 99 at 15.) In such instances, the insurer lacks the prototypical enhanced or fiduciary-like duty. 14 See Schreib v. Am. Family Mut. Ins. Co., 2015 WL 5175708, slip op. at 3 (W.D. Wash. 2015) 15 (citing Ellwein, 15 P.3d at 647 (2001)). Plaintiff does not address this issue in support of its 16 motion. And the Court will not do Plaintiff’s work for her (which would be necessary to support 17 a finding as a matter of law that some of the conduct discussed above necessarily constitutes a 18 breach of contract). Thus, the Court DENIES summary judgment to Plaintiff on her breach of 19 contract claim. 20 7. Affirmative Defenses 21 Lastly, Plaintiff seeks summary judgment on affirmative defenses 1–7 and 9–13. (Dkt. 22 No. 62 at 31–32.) At trial, the defendant has the burden of proof here. Jones v. Taber, 648 F.2d 23 1201, 1203 (9th Cir. 1981). Thus, because Plaintiff moves for summary judgment, she need only 24 show that Defendant does not have enough evidence of an essential element to carry its ultimate 25 burden of persuasion at trial. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 26 1102 (9th Cir. 2000). And here, Plaintiff contends that Defendant fails to put forth any evidence in support of these defenses. (Id.) In response, Defendant does not meaningfully address or point 1 to evidence in support of defenses 1–5 or 9–13 (other than to reserve the issues for trial). (See 2 Dkt. No. 84 at 28–30.) It only offers evidence in support of defenses 6 and 7. (Id.) Thus, it fails 3 to establish that it can carry its burden at trial regarding these defenses. The Court GRANTS 4 summary judgment to Plaintiff on defenses 1–5 and 9–13 and DENIES summary judgment to 5 Plaintiff on affirmative defenses 6 and 7. 6 III. CONCLUSION 7 For the foregoing reasons, the Court ORDERS as follows: 8 • Plaintiff’s motion to strike, (Dkt. Nos. 93 at 14–16, 99 at 1–4), is GRANTED 9 with respect to Ms. Hogan’s opinion but DENIED as to Dr. Zhou’s and Dr. 10 Way’s opinions; 11 • Plaintiff’s motion for summary judgment as to the collateral estoppel effect of the 12 arbitration award and resulting offsets, (Dkt. No. 62 at 19), is GRANTED in part 13 and DENIED in part; 14 • Plaintiff’s motion for summary judgment is GRANTED as to her bad faith and 15 negligence causes of action as well certain elements of her CPA claim with 16 respect to Defendant’s use of Dr. Carey’s report at arbitration, (id. at 25–26, 28– 17 29); 18 • The motions for summary judgment on all remaining affirmative claims, (Dkt. 19 Nos. 62 at 21–30, 70 at 13–24), are DENIED; and 20 • Plaintiff’s motion for summary judgment on Defendant’s affirmative defenses 1– 21 7 and 9–13, (Dkt. No. 62 at 30–32), is GRANTED in part and DENIED in part. 22 // 23 // 24 // 25 26 1 DATED this 7th day of October 2025. A 2 3 4 John C. Coughenour 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26