Kirk v. Mount Airy Insurance

134 Wash. 2d 558
CourtWashington Supreme Court
DecidedFebruary 26, 1998
DocketNo. 65563-4
StatusPublished
Cited by142 cases

This text of 134 Wash. 2d 558 (Kirk v. Mount Airy Insurance) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirk v. Mount Airy Insurance, 134 Wash. 2d 558 (Wash. 1998).

Opinions

Johnson, J.

The United States District Court, pursuant to RCW 2.60, certified the following question to this court:

Does the holding in Safeco Ins. v. Butler, 118 Wn.2d 383[, 823 P.2d 499] (1992), apply under a policy of professional liability insurance if the insurer fails to provide a defense to the insured in bad faith? If Butler applies, what remedies are available to the insured against the insurer?[1]

The starting point of our analysis requires us to assume bad faith has been established. The tort of bad faith has been recognized by this court. Safeco Ins. Co. of Am. v. Butler, 118 Wn.2d 383, 393-94, 823 P.2d 499 (1992). This cause of action acknowledges that the business of insurance affects the public interest and that an insurer has a duty to act in good faith. RCW 48.01.030.2 The tort of bad faith recognizes that traditional contract damages do not provide an adequate remedy for a bad faith breach of contract because an insurance contract is typically an agreement to pay money, and recovery of damages is limited to the amount due under the contract plus interest. 15A George J. Couch et al., Couch Cyclopedia of Insurance Law § 56:10, at 17 (2d ed. 1983). In order to establish bad faith, an insured is required to show the breach was unreasonable, frivolous, or unfounded. Wolf v. League Gen. Ins. Co., 85 Wn. App. 113, 122, 931 P.2d 184 (1997). Bad faith will not be found where a denial of coverage or a failure to provide a defense is based upon a reasonable interpretation of the insurance policy. Transcontinental Ins. Co. v. Washington Pub. Utils. Dists.’ Util. Sys., 111 Wn.2d 452, 470, 760 P.2d 337 (1988). The failure to defend without this [561]*561requisite showing does not constitute bad faith, trigger a presumption of harm, or allow coverage by estoppel.

I

The duty to defend arises whenever a lawsuit is filed against the insured alleging facts and circumstances arguably covered by the policy. 7C John Alan Appleman, Insurance Law and Practice § 4681, at 16 (Walter F. Berdal ed., rev. ed. 1979). The duty to defend is “one of the main benefits of the insurance contract.” Butler, 118 Wn.2d at 392. Although an insurer has a broad duty to defend, alleged claims which are clearly not covered by the policy relieve the insurer of its duty. State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 486, 687 P.2d 1139 (1984). “The key consideration in determining whether the duty to defend has been invoked is whether the allegation, if proven true, would render [the insurer] liable to pay out on the policy. It is not the other way around.” Farmers Ins. Co. v. Romas, 88 Wn. App. 801, 808, 947 P.2d 754 (1997). The certified question requires us to assume the claim against the insured alleges facts giving rise to the insurer’s duty to defend, and the duty was breached.

The general rule regarding damages for an insurer’s breach of contract is that the insured must be put in as good a position as he or she would have been had the contract not been breached. Greer v. Northwestern Nat’l Ins. Co., 109 Wn.2d 191, 202-03, 743 P.2d 1244 (1987). In the failure-to-defend context, recoverable damages include: (1) the amount of expenses, including reasonable attorney fees the insured incurred defending the underlying action, and (2) the amount of the judgment entered against the insured. Greer, 109 Wn.2d at 202. In Greer, we stated an insurance company that wrongfully refuses to defend an insured’s claim is liable for the amount of the judgment entered provided the act creating liability is a covered event and provided the amount of the judgment is within the limits of the policy. Greer, 109 Wn.2d at 202-03. However, Greer does not resolve the question before us because Greer [562]*562did not address damages and liability when the insurer refuses to defend in bad faith.

II

The existence of bad faith removes us from the general rule. The certified question does not ask us to resolve a simple breach of contract; rather, we are confronted with the intentional abuse of a fiduciary relationship. The bad faith requires us to set aside traditional rules regarding harm and contract damages because insurance contracts are different. In Butler, under the reservation of rights context, we held there is a rebuttable presumption of harm for an insurer’s bad faith breach of contract. Butler, 118 Wn.2d at 389-90. We are asked whether the rule established in Butler applies to the question before us here.

Although a showing of harm is an essential element of an action for bad faith handling of an insurance claim, we imposed a rebuttable presumption of harm once the insured meets the burden of establishing bad faith. Butler, 118 Wn.2d at 389-90. In Butler, the court broadly stated, “we presume prejudice in any case in which the insurer acted in bad faith.” Butler, 118 Wn.2d at 391. The certified question requires us to assume the insurer acted in bad faith; therefore, we must assume harm.

The rebuttable presumption of harm recognized in Butler stems from the insurer’s duty to act in good faith, which was extensively discussed in Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 715 P.2d 1133 (1986). In Tank, we stated the duty of good faith requires fair dealing and equal consideration for all matters related to the insured’s interests. Tank, 105 Wn.2d at 386. In Tank, we noted a reservation of rights defense provides a valuable service to an insured, but also recognized the potential for abuse if the defense was undertaken in bad faith. Tank, 105 Wn.2d at 390-91. While Tank firmly established an insurer’s heightened obligation to act in good faith, Tank did not address a remedy because we found no breach of this duty.

The presumption of harm recognized in Butler is merely [563]*563an application of the principle discussed in Tank. The rebuttable presumption of harm applies to the question before us because a bad faith breach of the duty to defend wrongfully deprives the insured of a valuable benefit of the insurance contract, and leaves the insured faced with the difficult problem of proving harm.

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