Integon Preferred Insurance Company v. Wilcox

Opinion

1 The Honorable Barbara J. Rothstein

FOR THE WESTERN DISTRICT OF WASHINGTON

6 INTEGON PREFERRED INSURANCE COMPANY, 7

8 Plaintiff, v. 9 DANIEL WILCOX and ELIZABETH WILCOX 10 and ERIC HOFF, 11 Defendants. 12 _______________________________________ DANIEL WILCOX and ELIZABETH WILCOX, 13 Counterclaimants, 14

15 v. Civil Action No. 2:21-cv-1501

16 INTEGON PREFERRED INSURANCE ORDER GRANTING THIRD-PARTY COMPANY, DEFENDANT WARREN’S MOTION Counter-Defendant. AGAINST INTEGON 18

19 _______________________________________ DANIEL WILCOX and ELIZABETH WILCOX, 20 Third-Party Plaintiffs, 21 v. 22

PLLC, dba WRIXTON LAW OFFICE; and SMITH

25 Third-Party Defendants.

27 2 This lawsuit arises from a pedestrian/motor vehicle accident that occurred in Snohomish 3 County, Washington in November 2017. The parties to this litigation are: (1) Plaintiff and 4 Counter-Defendant Integon Insurance Company (“Integon”), (2) Defendants, Counterclaimants, 5 and Third-Party Plaintiffs Daniel and Elizabeth Wilcox (“the Wilcoxes”), (3) Third-Party 6 7 Defendant Robert W. Warren and Wrixton Law Office (collectively “Warren”), and (4) Third- 8 Party Defendant Smith Freed Eberhard, P.C. (“Smith Freed”). Currently before the Court is 9 Warren’s motion for summary judgment against Integon. Dkt. No. 109. Having reviewed the 10 motion, the opposition and reply thereto, the record of the case, and the relevant legal authority, 11 the Court grants the motion. The reasoning for the Court’s decision follows. 12 II. FACTUAL & PROCEDURAL BACKGROUND 13 The factual background relevant to the instant motion is as follows:1 Mr. Wilcox 14 15 purchased an automobile insurance policy from Integon that was effective from August 2017 to 16 August 2018, with limits for liability coverage of $25,000 per person and $50,000 per accident. 17 On November 1, 2017, Mr. Wilcox turned right at an intersection where he had a green light but 18 failed to see Eric Hoff who was walking in the crosswalk. Mr. Wilcox hit Hoff, injuring him. Mr. 19 Wilcox timely reported the incident to Integon. On July 30, 2018, Integon offered the policy 20 limits to Hoff to settle his claim; he never responded to the offer. On January 16, 2020, Hoff filed 21 a lawsuit against the Wilcoxes in Snohomish County Superior Court (the “Underlying Lawsuit”) 22 23 and served them with the summons and complaint on February 1, 2020. The Wilcoxes claim that 24 they notified Integon of the Underlying Lawsuit on February 3, 2020, but Integon has no record 25 26 1 See this Court’s order granting Integon’s motion for partial summary judgment (Dkt. No. 149) for 27 a more complete background section. 1 of the notification and this Court previously determined that no reasonable jury could conclude 2 that the notification occurred. See Dkt. No. 149 at 11. 3 On February 5, 2020, the Wilcoxes met with Third-Party Defendant attorney Robert 4 Warren about the Underlying Lawsuit. They allege that Warren promised to enter a notice of 5 appearance and represent them in the Underlying Lawsuit. That same day, Warren sent Integon a 6 7 letter of representation informing it that he represented the Wilcoxes regarding the accident. The 8 letter did not mention the Underlying Lawsuit, that Mr. Wilcox had been served, nor did it 9 provide a copy of the pleadings from the Underlying Lawsuit. Warren called Integon the next day 10 on February 6, 2020. During the 10 minute and 19 second phone call (that was recorded by 11 Integon), Warren never mentioned the Underlying Lawsuit. He alleges that he did not mention 12 that Lawsuit because he assumed that the Wilcoxes had already informed Integon of it. 13 Warren never filed a notice of appearance nor took other action on the Wilcoxes’ behalf in 14 15 the Underlying Lawsuit and on March 11, 2020, the Snohomish County Superior Court entered an 16 order of default against the Wilcoxes and, on October 16, 2020, entered default judgment in the 17 amount of $1,618,587.33. Integon learned of the default judgment from Hoff’s attorney on 18 February 18, 2021 and immediately contacted Mr. Wilcox who confirmed that he had been served 19 with the Underlying Lawsuit in February 2020 and had provided the pleadings to Warren. Integon 20 tried to speak to Warren that same day but was unable to reach him until February 22, 2021, when 21 he confirmed that he was aware of the Underlying Lawsuit but not the default judgment. That 22 23 same day, Integon retained Third-Party Defendant Smith Freed as counsel for Mr. Wilcox to try 24 to vacate the default judgment. Smith Freed appeared in the Underlying Lawsuit on February 24, 25 2021 and moved to vacate the default judgment on September 29, 2021. The Snohomish County 26 Court denied the motion on October 11, 2021. 27 1 Thereafter, Integon instituted this action against the Wilcoxes seeking entry of a 2 declaratory judgment that, among other relief, Integon did not breach its duty to defend the 3 Wilcoxes in the Underlying Lawsuit and moved for summary judgement on this issue. This Court 4 granted Integon’s motion on July 6, 2023 (“the July 6, 2023 Order”), determining that “Integon is 5 entitled to summary judgment on its claim that it did not breach its duty to defend Mr. Wilcox in 6 7 the Underlying Lawsuit.” Dkt. No. 149 at 13. 8 The Wilcoxes filed counterclaims against Warren and Smith Freed for legal malpractice 9 and breach of fiduciary duty. Smith Freed moved for summary judgment on the Wilcoxes’ claim 10 against it, which this Court granted on July 17, 2023 (“the July 17, 2023 Order”). Dkt. No. 153. In 11 granting the motion, the Court determined that Smith Freed failed to act with due diligence in 12 filing the motion to vacate, but the failure was not the proximate cause of the Wilcoxes’ damages 13 so the law firm was entitled to summary judgment on the Wilcoxes’ claims against it. 14 16 “The standard for summary judgment is familiar: ‘Summary judgment is appropriate 17 when, viewing the evidence in the light most favorable to the nonmoving party, there is no 18 genuine dispute as to any material fact.’” Zetwick v. County of Yolo, 850 F.3d 436, 440 (9th Cir. 19 2017) (quoting United States v. JP Morgan Chase Bank Account No. Ending 8215, 835 F.3d 20 1159, 1162 (9th Cir. 2016)). A court’s function on summary judgment is not “to weigh the 21 evidence and determine the truth of the matter but to determine whether there is a genuine issue 22 23 for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If there is not, summary 24 judgment is warranted. 25 26

27 2 Integon brings two claims against Warren: (1) promissory estoppel and (2) tortious 3 interference with a contractual relationship. Warren moves for summary judgment on both claims. 4 A. Promissory Estoppel 5 To prevail on its promissory estoppel claim, Integon must show that: (1) Warren made a 6 7 promise, (2) Warren reasonably expected Integon to change its position based on that promise, (3) 8 Integon relied on the promise and changed its position, (4) Integon’s reliance was justified, and 9 (5) injustice can be avoided only by enforcement of the promise. Havens v. C&D Plastics, Inc. 10 876 P.2d 435, 443 (Wash. 1994). Integon argues that Warren made two promises, both of which 11 allegedly occurred during Warren’s February 22, 2021 phone conversation with Integon adjuster 12 Smalley. Integon alleges that Warren promised Smalley that he had filed a notice of appearance 13 (“NOA”) in the Underlying Lawsuit and further promised to provide a copy of the NOA to 14 15 Smalley. Integon also alleges that Warren “misled” Smalley and his “misleading statement is 16 sufficient to establish the first element of a promissory estoppel claim.” Dkt. No. 121 at 12. 17 Specifically, Integon claims that during his February 6, 2020 conversation with Smalley, Warren 18 mislead her into believing that Hoff had not yet filed the Underlying Lawsuit by stating that “if 19 they file, I want to depose, please - - I want to depose defendant- - plaintiff.” Dkt. No. 103, Ex. 1 20 at 17:14-16 (emphasis added). 21 The Court can quickly dispense of the latter argument because Integon cites no 22 23 Washington authority supporting its contention that “misleading statements” are “promises” for 24 purposes of promissory estoppel. To the contrary, to be enforceable under a theory of promissory 25 estoppel, the promise must be “clear and unambiguous.” Aguilar v. International Longshoremen’s 26 Union Local No. 10, 966 F.2d 443, 446 (9th Cir. 1992); see also, Hass v. Darigold Dairy 27 1 Products Co., 751 F.2d 1096, 1100 (9th Cir. 1985) (a promise that is “vague, general or of 2 indeterminate application” is unenforceable for purposes of promissory estoppel). Thus, Warren’s 3 alleged misleading statement during the February 6, 2020 phone call cannot be the basis for a 4 promissory estoppel claim. 5 The Court does not need to resolve whether Warren’s alleged promises that he filed a 6 7 NOA and that he would provide Integon with a copy of the NOA are sufficient “promises” for 8 purposes of a promissory estoppel claim. This is because Integon cannot establish that it was 9 harmed even if Warren did make these promises. Integon alleges that Warren’s promise that he 10 filed a NOA and further promise to provide Integon with a copy of the NOA caused Smith Freed 11 to delay filing the motion to vacate the default judgment in the Underlying Lawsuit on behalf of 12 the Wilcoxes. Integon argues that the Snohomish County Court would have granted the motion to 13 vacate if it had been filed earlier. However, this Court has already determined in the July 17, 2023 14 15 Order that the Snohomish County Court would have denied the motion even if it had been filed 16 immediately after Smith Freed entered a notice of appearance in the Underlying Lawsuit. See Dkt. 17 No. 153 (“Therefore, this Court concludes that the County Court would have denied the motion to 18 vacate even if Smith Freed had filed the motion immediately after it entered its notice of 19 appearance.”). Moreover, even if the County Court would have granted the motion to vacate the 20 default judgment but for Smith Freed’s delay in filing the motion, Integon cannot be held liable 21 for the default judgment because this Court has already held in the July 6, 2023 Order that 22 23 Integon did not breach its duty to defend Mr. Wilcox in the Underlying Lawsuit. This Court 24 determined that the Wilcoxes failed to tender the Lawsuit to Integon before the default judgment 25 was entered and once they did tender the Lawsuit to Integon, Integon satisfied its duty to defend 26 by retaining Smith Freed to represent the Wilcoxes in the Lawsuit. See Dkt. No. 149 for the 27 1 Court’s analysis on this issue. Thus, Integon cannot satisfy the final element of its promissory 2 estoppel claim—that injustice can be avoided only by enforcement of the promise. Warren is 3 entitled to summary judgment on the claim as a matter of law. 4 B. Tortious Interference 5 To prove tortious interference with a contractual relationship, Integon must establish: (1) 6 7 the existence of a valid contractual relationship between Integon and the Wilcoxes, (2) that 8 Warren was aware of the contractual relationship, (3) an intentional interference inducing or 9 causing a breach or termination of the relationship, (4) that Warren interfered for an improper 10 purpose or used improper means, and (5) resultant damages. Leingang v. Pierce County Med. 11 Bureau, Inc., 930 P.2d 288, 300 (Wash. 1997). Integon alleges that “Warren interfered with the 12 contractual relationship between [it] and the Wilcoxes for his personal financial benefit” and that 13 Integon suffered damages as a result of Warren’s tortious conduct. Dkt. No. 42 at ¶ 158. Integon 14 15 further alleges that “[t]o the extent that the Wilcoxes prevail in their Counterclaims against [it] in 16 the present lawsuit, any breach of the contractual terms of the Policy was induced and/or caused 17 by Warren’s intentional interference with that contractual relationship.” Id. at ¶ 156 18 Integon’s tortious interference claim fails for at least two reasons. First, Integon has 19 produced no evidence to substantiate its claim that Warren benefitted financially from his alleged 20 interference with Integon’s contract with the Wilcoxes, while Warren has testified that he never 21 entered into a retainer agreement with the Wilcoxes, nor sought or received payment from them 22 23 or Integon. Dkt. No. 110, Ex. 2 45:22-47:17. And second, as stated above, this Court has already 24 determined that Integon did not breach its contractual obligations to the Wilcoxes. See Dkt. No. 25 149. Therefore, Integon’s tortious interference claim fails as a matter of law and Warren is 26 entitled to summary judgment on the claim. 27 2 For the foregoing reasons, the Court HEREBY GRANTS Warren’s motion for summary 3 judgment on Integon’s claims against him. 4 Dated this 27th day of July 2023. 5 A 6 7 Barbara Jacobs Rothstein U.S. District Court Judge 8 9 10

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