Progressive West Insurance Company v. Bateman, No. 54890-5-I (WA 7/25/2005)

• Decision Date: 25 July 2005
• Docket Number: No. 54890-5-I,54890-5-I
• Court: Washington Supreme Court
• Parties: PROGRESSIVE WEST INSURANCE COMPANY, a Domestic Corporation, Organized and Existing under the Laws of the State of Washington, Respondent, v. MARJORIE BATEMAN, Appellant.

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Unpublished Opinion

PROGRESSIVE WEST INSURANCE COMPANY, a Domestic Corporation, Organized and Existing under the Laws of the State of Washington, Respondent, v. MARJORIE BATEMAN, Appellant.

No. 54890-5-I

Court of Appeals of Washington, Division One.

Filed: July 25, 2005

Appeal from Superior Court of Whatcom County. Docket No: 04-2-00694-1. Judgment or order under review. Date filed: 08/20/2004. Judge signing: Hon. Steven J Mura.

Counsel for Appellant(s), Brock David Stiles, Attorney at Law, PO Box 228, Sedro Woolley, WA 98284-0228.

Counsel for Respondent(s), Pellegrino L. Certa, Cole Lether Wathen & Leid PC, 1000 2nd Ave Ste 1300, Seattle, WA 98104-1082.

Ryan J Hall, Cole Lether Wathen & Leid PC, 1000 2nd Ave Ste 1300, Seattle, WA 98104-1082.

AGID, J.

Marjorie Bateman submitted an underinsured motorist (UIM) claim to her insurance company, Progressive West, after she injured herself getting out of her car on the shoulder of the freeway following a collision caused by Roger McCombs. Progressive sought a declaratory judgment that McCombs was not legally liable for Bateman's injuries, so that Progressive would not have a duty to pay her UIM claim. Bateman brought a cross-claim for bad faith, and the parties moved for summary judgment on both issues. The trial court granted Progressive's motion and Bateman appeals.

Because Bateman could not open her car door all the way as a direct result of the hazardous situation she was placed in by McCombs' negligence, her injuries are sufficiently causally connected to McCombs' negligence to submit the question of cause in fact to a jury. And because there is no public policy reason to deny recovery, we decline Progressive's invitation to hold there is not legal causation. Finally, there are genuine issues of fact about whether Progressive conducted its UIM claim investigation in a reasonable and prompt manner, so we reverse and remand for further proceedings.

FACTS

On August 17, 2002, 85-year-old Marjorie Bateman was driving northbound in the right lane on Interstate 5 near Bellingham. A vehicle driven by Roger McCombs entered the freeway from an on-ramp, failed to yield right of way, and collided with the passenger side of Bateman's car.¹ Both drivers then pulled onto the right shoulder of the freeway and got out of their vehicles to exchange information and inspect the damage. When Bateman got out, she did not fully open the driver's side door because she was parked very close to passing traffic. State Highway Patrol Officer Lance Engle arrived on the scene and cited McCombs, but he did not write a full report. Bateman told both McCombs and Officer Engle that she was not injured.

According to Bateman, she gouged the back of her left leg on the corner of the door when she got out of her car, but she did not realize it until she got back into her car and saw blood `everywhere.' Bateman then drove to her hair appointment, where the owner of the salon looked at the cut and Bateman realized the severity of the injury. Bateman's daughter, Janet Ingham, picked Bateman up at the salon and took her to the hospital emergency room. Because the hospital was busy, Bateman went across the street to a walk-in clinic where she got nine stitches to close the wound. The cut never properly healed, and eventually Bateman's left leg had to be amputated above the knee.²

At the time of the collision with McCombs, Bateman had car insurance through Progressive West Insurance Company (Progressive). McCombs was insured by State Farm. Bateman's policy included personal injury protection (PIP) and underinsured motorist bodily injury (UIM) coverage. The UIM provision contained standard language:

Subject to the Limits of Liability, if you pay the premium for Underinsured Motorist Coverage, we will pay for damages, other than punitive or exemplary damages, which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury:

1. sustained by an insured person;

2. caused by an accident; and

3. arising out of the ownership, maintenance, or use of an underinsured motor vehicle.³

Progressive paid the PIP policy limit of $10,000 toward Bateman's medical expenses. State Farm paid Bateman $25,000, McCombs' liability policy limit. By September 15, 2003, Bateman submitted a claim to Progressive for payment of the UIM policy maximum of $500,000.

In March 2004, Progressive informed Bateman that it questioned whether her injuries were covered under the UIM policy because of the lack of connection between the collision and her injuries. It forwarded the issue to a coverage attorney and then, on March 25, 2004, filed a complaint for declaratory relief in Whatcom County Superior Court.

Progressive asked the court to conclude that Bateman was not legally entitled to recover from McCombs for her injuries. Bateman counterclaimed that Progressive acted in bad faith. The parties brought cross-motions for summary judgment on both issues. The trial court granted Progressive's motion, ruling that McCombs' negligence did not cause Bateman's injuries, and that there could be no bad faith if there was no coverage.

DISCUSSION

We review summary judgments de novo, performing the same inquiry as the trial court.⁴ Summary judgment is proper only when there is no genuine issue about any material fact, and the moving party is entitled to a judgment as a matter of law.⁵ We consider all facts and reasonable inferences in the light most favorable to the nonmoving party.⁶ Questions of fact may be determined as a matter of law when reasonable minds can reach only one conclusion.⁷

The public policy behind UIM insurance is to provide a second layer of floating protection for the insured.⁸ An insurer providing UIM protection Ssteps into the shoes of a negligent third party to pay the insured the amount, up to policy limits, by which the damage caused to the insured by the negligent third party exceeds the third party's liability coverage.'⁹ The UIM insurer `undertakes a duty to pay that extends no farther than the legal liability of the involved tortfeasors, if any.'¹⁰

Here, Progressive's duty to pay depends on whether McCombs is legally liable for Bateman's injuries. In order to prove actionable negligence, a party must establish the existence of a duty, breach of that duty, resulting injury, and proximate causation between the breach and the resulting injury.¹¹ There is no dispute that McCombs breached a duty owed to Bateman when he sideswiped her car as he merged onto I-5; the issue is whether his breach was a proximate cause of Bateman's injuries. In Washington, proximate cause consists of two elements: cause in fact and legal causation.¹²

I. Proximate Cause

As an initial matter, Progressive claims that Greengo v. Public Employees Mutual Insurance Company¹³ dictates that because the collision and the incident resulting in Bateman's cut were two separate and distinct accidents, each must have had its own proximate cause. In Greengo, the Washington Supreme Court held that `{w}here there were two collisions, we look to see if each has its own proximate cause. If so then there are two accidents.'¹⁴ The court remanded to determine whether the two collisions resulted from separate proximate causes. In other words, the proximate cause determination must be made before the court can determine that two or more accidents were separate and distinct. But Greengo does not hold that negligence causing an initial accident cannot proximately cause another accident or injury.

A. Cause in Fact

At oral argument, Progressive conceded factual causation for purposes of summary judgment and our review on appeal. However, because both parties argued it in their briefs, we address factual causation anyway. Bateman argues that but for McCombs' negligence, she never would have cut herself on her car door. She claims that there was an unbroken sequence of events between McCombs' negligence and her injuries. This sequence included her pulling over on the shoulder of I-5 after the collision, not opening her car door very wide because of her proximity to traffic, then getting out of the car to exchange information with McCombs. Progressive argues that because Bateman's injuries occurred after the vehicles came to a stop following the collision, her injuries were caused by a separate and distinct accident. Progressive also argues that Bateman's injuries were caused by an intervening, superseding act.

Cause in fact concerns the `but for' consequences of an act,<sup>15</sup> and `requires proof that `there was a sufficiently close, actual, causal connection between {the tortfeasor's} conduct and the actual damage suffered by {the injured party}."¹⁶ The accident that causes the injuries complained of must be "part of the natural and continuous sequence of events which flowed from" the original tortfeasor's negligent act.¹⁷ The tortfeasor's negligence must not be broken by any new independent cause.¹⁸ Where an intervening act breaks the chain of causation, it is called a "superseding cause."¹⁹ Normally the question of cause in fact is left to the jury, but if reasonable minds could not differ it may be determined as a matter of law.²⁰ Although this case presents a unique set of circumstances, several cases help determine whether the cause in fact determination should be left to a jury.

In Maltman v. Sauer, the defendant was involved in a serious auto accident and a helicopter was dispatched to the scene to rush him to the hospital.²¹ While en route to the accident scene, the helicopter crashed, killing the crew. The crewmembers' families sued the defendant under the `rescue doctrine,' which requires among other things that there be negligence by the defendant which is the proximate cause of the peril to the rescuers.<sup>22</sup> The Washington Supreme Court held that there was no proximate cause because the `record fails to show a sufficiently close, actual causal connection between the...