Olivine Corp. v. United Capitol Ins. Co.

19 P.3d 1089
CourtCourt of Appeals of Washington
DecidedMarch 12, 2001
Docket46096-0-I
StatusPublished
Cited by6 cases

This text of 19 P.3d 1089 (Olivine Corp. v. United Capitol Ins. Co.) 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
Olivine Corp. v. United Capitol Ins. Co., 19 P.3d 1089 (Wash. Ct. App. 2001).

Opinion

19 P.3d 1089 (2001)
105 Wash.App. 194

OLIVINE CORPORATION, a Washington corporation, Respondent/Cross Appellant,
v.
UNITED CAPITOL INSURANCE COMPANY, a Wisconsin corporation, Appellant/Cross Respondent.

No. 46096-0-I.

Court of Appeals of Washington, Division 1.

March 12, 2001.

*1090 Steven Randolph Hager, Craig Powell Hayes, Ludwigson Thompson Hayes & Bell, Bellingham, for Respondent.

Jeffrey C. Grant, Grant Law Firm, Seattle, for Appellant.

WEBSTER, J.

Clearwater Resource Recovery, an incinerator operator, procured pollution insurance through United Capitol Insurance Company and financed the premiums through TEPCO Premium Finance, LLC. When Clearwater failed to make payments, TEPCO sent it a notice of cancellation. Olivine Corporation, the property owner and an additional named insured, did not receive such notice. When the Whatcom County Health Department demanded that Olivine clean up the operations on its property, Olivine tendered such costs to United Capitol. United Capitol refused to provide coverage, citing the cancellation of the policy. Olivine sued United Capitol for coverage. Finding that United Capitol failed to mail a notice of cancellation to Olivine as required by Washington statute, the trial court granted summary judgment to Olivine.

United Capitol appeals arguing that the trial court erred in (1) finding that the cancellation was not effective as to Olivine, (2) entering summary judgment on damages, and (3) awarding attorney fees and costs greater than the lodestar amount. In its cross appeal, Olivine maintains that the trial court should have awarded more attorney fees to offset the contingency agreement it has with its attorneys. We affirm because Washington law requires the insurer to notify an interested party of cancellation. In addition, we cannot say that the trial court erred regarding damages or abused its discretion in increasing the lodestar fee based on Olivine's contingency agreement.

FACTS

Clearwater Resource Recovery, Inc. leased property from Olivine Corporation and operated an incinerator on the property. According to the lease, Clearwater had an obligation to obtain pollution liability insurance and name Olivine as an additional insured. Clearwater obtained such coverage through United Capitol Insurance Company and financed the premiums through TEPCO Premium Finance, LLC. The policy commenced on October 27, 1997 and included an endorsement that listed Olivine as an additional named insured. TEPCO had power of attorney from Clearwater to cancel the policy if Clearwater did not make its payments.

When Clearwater failed to make payments in January 1998, TEPCO decided to cancel the policy and recover unearned premiums from United Capitol. TEPCO sent a notice of cancellation to Clearwater on February 17, 1998. Olivine, however, never received a notice of cancellation. In March, the Whatcom *1091 County Health Department cited Olivine for regulation violations and demanded that Olivine clean up the property or face permit revocation, civil penalties, abatement costs, administrative costs, and related liens on its property. Olivine sought coverage for the clean up costs from United Capitol. At first, United Capitol agreed to provide coverage for clean up costs on Olivine's property. Two months later, after discovering that TEPCO had sent a notice of cancellation, United Capitol refused to provide coverage.

Olivine sued United Capitol directly for coverage. Early in the litigation, both parties moved for summary judgment on the issue of liability. Finding that the cancellation was not effective as to Olivine, the trial court granted Olivine's motion for summary judgment and denied United Capitol's motion. Although damages remained an issue, United Capitol filed an interlocutory appeal. A court commissioner dismissed the appeal without prejudice because it was not yet appealable as a matter or right.

Later, the trial court granted summary judgment on the issue of damages and awarded Olivine $434,300.17, with interest. The court also awarded Olivine $40,000.00 in attorney fees and $550.99 in costs. United Capitol timely filed its Notice of Appeal. Olivine appeals the attorney fee award.

DISCUSSION

I.

Notice of Cancellation

RCW 48.56.110 regulates the cancellation of insurance policies by premium finance companies like TEPCO. According to RCW 48.56.110(2), a premium finance company may not cancel an insurance policy without first mailing 10 days' written notice to the insured of its intent to cancel. It is undisputed that TEPCO did not mail such notice to Olivine. And, it appears undisputed that TEPCO requested, in the name of Clearwater, cancellation of the insurance policy under RCW 48.56.110(3) by mailing to United Capitol and Clearwater a notice of cancellation. TEPCO did not mail the notice of cancellation to Olivine.

The critical issue in this case is the application of RCW 48.56.110(4) to United Capitol. RCW 48.56.110(4) requires the insurer to give any statutorily required notice on behalf of itself to third parties within two business days after receiving the notice of cancellation:

All statutory, regulatory, and contractual restrictions providing that the insurance contract may not be canceled unless notice is given to a governmental agency, mortgagee, or other third party shall apply where cancellation is effected under the provisions of this section. The insurer shall give the prescribed notice in [sic] behalf of itself or the insured to any governmental agency, mortgagee, or other third party on or before the second business day after the day it receives the notice of cancellation from the premium finance company and shall determine the effective date of cancellation taking into consideration the number of days notice required to complete the cancellation.

RCW 48.56.110(4) (emphasis added). United Capitol argues that it had no duty to provide notice to Olivine. Yet, RCW 48.56.110(4) clearly states that all statutory restrictions apply and that the insurer must give the prescribed notice on behalf of itself. Ins. Mgmt., Inc. v. Guptill, 16 Wash.App. 226, 231-32, 554 P.2d 359 (1976) (insurer's notice of cancellation to insured was sufficient to cover the lack of notice by the premium finance company). In Guptill, this Court interpreted RCW 48.56.110(4) as imposing a duty upon the insurer to "give any notice required to governmental agencies, mortgagees, or other third parties...." Guptill, 16 Wash.App. at 231;, 554 P.2d 359 3 Eric Mills Holmes,

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Bluebook (online)
19 P.3d 1089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olivine-corp-v-united-capitol-ins-co-washctapp-2001.