Sharbono v. Universal Underwriters Ins. Co.

247 P.3d 430
CourtCourt of Appeals of Washington
DecidedJanuary 19, 2011
Docket38425-6-II, 38596-1-II
StatusPublished
Cited by1 cases

This text of 247 P.3d 430 (Sharbono v. Universal Underwriters 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
Sharbono v. Universal Underwriters Ins. Co., 247 P.3d 430 (Wash. Ct. App. 2011).

Opinion

247 P.3d 430 (2010)
158 Wash.App. 963

James and Deborah SHARBONO, individually and the martial community and composed thereof; Cassandra Sharbono, Respondents/Cross-Appellants,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a foreign insurer, Appellant/Cross-Respondent. and
Len Van De Wege and "Jane Doe" Van De Wege, husband and wife and the marital community composed thereof, Defendants,
Clinton L. Tomyn, individually and as Personal Representative of the Estate of Cynthia L. Tomyn, deceased; and as Parent/Guardian of Nathan Tomyn, Aaron Tomyn, and Christian Tomyn, minor children, Intervenors.

Nos. 38425-6-II, 38596-1-II.

Court of Appeals of Washington, Division 2.

December 17, 2010.
As Amended on Reconsideration January 19, 2011.

*431 Philip Albert Talmadge, Talmadge/Fitzpatrick, Tukwila, WA, Dan'l Wayne Bridges, McGaughey Bridges Dunlap PLLC, Bellevue, WA, Jacquelyn A. Beatty, Attorney at Law, Seattle, WA, for Defendants, Appellant/Cross-Respondent.

Timothy R. Gosselin, Gosselin Law Office PLLC, Tacoma, WA, for Respondents/Cross-Appellants.

Benjamin Franklin Barcus, Paul Alexander Lindenmuth, Ben F. Barcus & Associates PLLC, Tacoma, WA, for Respondent Intervenors.

HUNT, J.

¶ 1 This appeal concerns interest owed on a settlement reduced to judgment in a lawsuit filed by the family of wife and mother Cynthia L. Tomyn, who died as a result of a 1998 vehicle collision caused by James and Deborah Sharbono's 16-year daughter, Cassandra. The Sharbonos assigned to the Tomyns benefits payable by the Sharbonos' insurance carriers. One of those carriers, Universal Underwriters Insurance Company, appeals the trial court's calculation of post judgment interest on remand from an earlier appeal in this case and other aspects of a 2005 jury's damages verdict and judgment.

¶ 2 Universal argues that the trial court erred by calculating interest twice; it also challenges several terms of the 2005 judgment. On cross-appeal, the Sharbonos argue *432 that the trial court erred by awarding post-judgment interest to the Tomyn family, instead of to them. We affirm the trial court's designation of the Tomyns as recipients of post-judgment interest; but we vacate the amount of the interest award and remand for recalculation of interest on the May 20, 2005 judgment principal at a rate of 12% per year, from May 20, 2005, until Universal pays it.

FACTS

I. 2001 Judgment (Settlement), 2005 Judgment (Jury Trial), and First Appeal

¶ 3 We glean the following facts from our published opinion in a previous appeal in this case, Sharbono v. Universal, 139 Wash.App. 383, 161 P.3d 406 (2007), review denied, 163 Wash.2d 1055, 187 P.3d 752 (2008):

Cassandra Sharbono lost control of her truck, crossed into the oncoming traffic lane, and hit a car Cynthia Tomyn was driving. Cynthia Tomyn died as a result of the accident and her family claimed damages against Cassandra's parents, James and Deborah Sharbono (the Sharbonos), who owned the vehicle Cassandra was driving. The Sharbonos had primary liability coverage with State Farm Insurance Company and umbrella coverage under their commercial and personal liability policies with Universal Underwriters Insurance Company. The Sharbonos claimed that they had three umbrella policies; Universal advised them they had only one umbrella policy with a $1,000,000 limit. During settlement negotiations with the Tomyns, the Sharbonos several times asked Universal to produce its underwriting file so that they and the Tomyns would know the extent of the Sharbonos' liability coverage. Universal refused. The Tomyns and the Sharbonos ultimately settled for $4,525,000,[1] and the Sharbonos then sued Universal to establish coverage and to recover damages for Universal's alleged bad faith in refusing to produce its underwriting file.[2]

139 Wash.App. at 388-89, 161 P.3d 406.

¶ 4 Following a jury trial in the Sharbonos' lawsuit against Universal,[3] on May 20, 2005, the trial court reduced to judgment Universal's $3,275 million share of the $4,525 million Sharbono-Tomyn settlement.[4] This judgment included the following pertinent terms:

1. Judgment is hereby entered in favor of [Sharbonos] and against [Universal] in the amount of ... $3,275,000.00, together with interest that has accrued thereon since the date of entry, March 30, 2001, which, as of May 13, 2005, (four years, 43 days @ 12%/yr.) totals $1,618,298.63, and together with interest that continues to accrue thereon as set forth in said judgment until said judgment is paid.
....
7. Amounts awarded pursuant to paragraph 1 shall bear post-judgment interest pursuant to RCW 4.56.110(4) and RCW 19.52.020 at the rate of 12 percent per annum.

Clerks Papers (CP) at 83.

¶ 5 On appeal in 2007, Universal did not assign error to this $3,275 million verdict, together with interest (totaling $4,893,298.63 as of May 13, 2005[5]), and we affirmed. We *433 also vacated the jury's award of $4.5 million in damages to the Sharbonos against Universal and remanded for further proceedings.

II. 2008 Remand from First Appeal

¶ 6 On remand on October 3, 2008, the trial court granted the Sharbonos' motion to execute on Universal's appeal bond[6] and ordered Ohio Casualty Insurance Company, Universal's appeal bond surety, to pay $6,240,265.75 under paragraph 1 and $2,353,956.28 under paragraph 7 of the May 2005 judgment.[7] In reaching these figures, the trial court compounded part of the interest: Under paragraph 1 of the 2005 judgment, the trial court calculated simple 12% interest on the original $3,275 million March 30, 2001 judgment, accruing from March 30, 2001, until October 15, 2008, for a total of $6,240,265.75; we refer to this interest as the "pre-2005 judgment interest." Under the first sentence of paragraph 7 of the 2005 judgment, the trial court applied 12% "post-judgment" interest[8] to this new paragraph 1 total, accruing from entry of the May 20, 2005 judgment until October 15, 2008, for an additional sum of $2,353,956.28,[9] CP at 333; we refer to this interest as "post-2005 judgment interest." The trial court designated the Tomyns[10] to receive the judgment amount plus all of the accrued interest. On November 7, the trial court struck Universal's CR 60 motion to vacate and/or to amend the May 20, 2005 judgment and October 3, 2008 order.

III. Second Appeal

¶ 7 On October 6, Universal appealed the October 3, 2008 order; on October 17, the Sharbonos cross-appealed. On November 20, Universal filed a separate appeal from the trial court's November 7 denial of its CR 60 motion. We consolidated these two appeals under RAP 3.3(a).

¶ 8 In February 2009, we entered an order narrowing the scope of Universal's appeal, allowing it to "challenge [only] the trial court's calculation of post-judgment interest." In so doing, we expressly ruled that Universal could not challenge the $3,275 million judgment, which we had affirmed in the previous appeal in 2007.[11]

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