Boag v. Farmers Insurance

128 Wash. App. 333
CourtCourt of Appeals of Washington
DecidedJuly 7, 2005
DocketNo. 31835-1-II
StatusPublished
Cited by2 cases

This text of 128 Wash. App. 333 (Boag v. Farmers Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boag v. Farmers Insurance, 128 Wash. App. 333 (Wash. Ct. App. 2005).

Opinion

[336]*336¶1 Kathleen Boag settled a claim against an underinsured motorist for his insurance policy limits. She also sought personal injury protection (PIP) and underinsured motorist (UIM) benefits from her insurer, Farmers Insurance Company of Washington. Farmers paid her $74,883.16 in PIP benefits. Through arbitration, she received a $137,095.11 UIM award. Boag appeals a trial court order offsetting $62,788.05 of Farmers’ PIP payments against her UIM award. We affirm.

Houghton, J.

FACTS

¶2 An underinsured driver injured Boag in a motor vehicle accident. The tortfeasor-driver had $25,000 liability insurance limits for injury to any one person. Boag settled her claim against the tortfeasor-driver in exchange for his $25,000 in policy limits. Boag had UIM and PIP benefits on her policy through Farmers. Boag’s UIM coverage had a $100,000 limit.

¶3 Initially, Farmers paid Boag $65,783.16 in PIP benefits. Boag sued Farmers, seeking an additional $9,100.00 in PIP benefits. Farmers paid Boag this amount in 2003 following litigation in which we held Farmers liable for the additional amount.1 Farmers paid Boag $74,883.162 in total PIP benefits.

f 4 Boag also sought UIM benefits from Farmers through arbitration. The arbitration award totaled $137,095.11. Following the arbitration, a dispute arose between Boag and Farmers regarding offsets against her award.

[337]*337¶5 Boag filed a complaint for declaratory relief and damages. Boag moved for summary judgment, asserting that no genuine issue of material fact precluded entering judgment as a matter of law. The trial court delayed its decision pending the outcome of her lawsuit against Farmers for the $9,100 in PIP benefits.3

¶6 In arguing her summary judgment motion, Boag claimed that Farmers could not offset more than $25,000, the tortfeasor’s policy limit. Farmers argued that it could offset $74,883.16, the entire amount of PIP benefits it had paid Boag.

¶7 In determining the offset, the trial court reviewed Boag’s recovery worksheets that included attorney fees and costs based on Winters v. State Farm Mutual Automobile Insurance Co., 144 Wn.2d 869, 31 P.3d 1164 (2001).4 One worksheet calculated a $28,794.29 net recovery if the court accepted Boag’s legal arguments. Another worksheet calculated a $5,115.73 net recovery if the court accepted the insurer’s legal arguments.

¶8 The court declined to adopt Boag’s reasoning and awarded Boag a $5,115.73 net recovery, plus prejudgment interest from July 26, 2002, and costs.5 It awarded attorney fees and costs on reconsideration.

¶9 Boag appeals.

[338]*338ANALYSIS

Summary Judgment

¶10 Boag contends that, under the terms of her insurance policy with Farmers, Farmers may offset PIP payments up to $25,000, the amount equal to what Boag recovered from the tortfeasor-driver, reduced by the amount of attorney fees Boag incurred in obtaining the $25,000 recovery. She raises two arguments.

¶[11 First, she asserts that Farmers waived its right to an offset under the “offset clause”6 in her insurance policy because it did not obtain her written agreement. At oral argument, Farmers agreed that it did not obtain her written agreement and that the PIP “offset clause” does not apply. Nevertheless, Farmers argues that under its subrogation or “right to recover” clause, it may offset the payments it made. Farmers Ins. Co. v. Lautenbach, 93 Wn. App. 671, 679, 963 P.2d 965 (1998), review denied, 138 Wn.2d 1012 (1999); Price v. Farmers Ins. Co., 82 Wn. App. [339]*33920, 24, 916 P.2d 949 (1996), rev’d on other grounds, 133 Wn.2d 490, 946 P.2d 388 (1997).7

¶12 Second, Boag asserts that under the “right to recover” clause in Hoag’s policy, any offset for PIP benefits that Farmers paid cannot exceed the tortfeasor’s liability limits. She argues that under Barney v. Safeco Insurance Co. of America, 73 Wn. App. 426, 869 P.2d 1093 (1994), overruled in part on other grounds by Price, 133 Wn.2d 490, 946 P.2d 388 (1997), she is entitled to the “benefit of her bargain” and the Farmers’ policy language controls its offset.

¶13 The parties do not dispute the facts. Thus, we review de novo only the court’s legal analysis based on the undisputed facts. Enter. Leasing, Inc. v. City of Tacoma Fin. Dep’t, 139 Wn.2d 546, 551-52, 988 P.2d 961 (1999).

¶14 Here, the “right to recover,” or subrogation clause, in Hoag’s policy states in pertinent part:

When a person has been paid damages by us under this policy and also recovers from another, we shall be reimbursed to the extent of our payment after that person has been fully compensated for his or her loss.
Except as limited above, we are entitled to all the rights of recovery of the person to whom payment was made against another. That person must sign and deliver to us any legal papers relating to that recovery, do whatever else is necessary to help us exercise those rights and do nothing after the loss to prejudice our rights.

Clerk’s Papers (CP) at 64.

¶ 15 We begin by noting that an insurer “stands in the shoes of the tortfeasor” for purposes of UIM coverage. Hamm v. State Farm Mut. Auto. Ins. Co., 151 Wn.2d 303, 308, 88 P.3d 395 (2004). Thus, we treat payments made by the UIM carrier as if made by the tortfeasor. Hamm, 151 [340]*340Wn.2d at 309. Accordingly, UIM carriers may offset the amount of any tortfeasor recovery from the amounts owed to an insured under a UIM policy. Hamm, 151 Wn.2d at 308.

¶16 Additionally, when the insured receives full recovery, the PIP carrier may seek reimbursement from its insured for the PIP benefits it previously paid. Hamm, 151 Wn.2d at 308. The written insurance contract governs whether PIP benefits can be offset against UIM benefits. Lautenbach, 93 Wn. App. at 679.

¶17 Citing a footnote in Keenan v. Industrial Indemnity Insurance Co., 108 Wn.2d 314, 317-18 n.1, 738 P.2d 270 (1987), Boag asserts that Farmers’ policy language entitles it to offset PIP benefits only to the extent of the tortfeasordriver’s $25,000 in coverage. We disagree.

¶18 In Keenan,

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Bluebook (online)
128 Wash. App. 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boag-v-farmers-insurance-washctapp-2005.