Turk v. United Service Automobile Association
| Decision Date | 11 December 2018 |
| Docket Number | 50067-1-II |
| Court | Washington Court of Appeals |
| Parties | DAVID TURK and MARISSA TURK, individually and as the representative of all persons similarly situated, Respondents, v. UNITED SERVICE AUTOMOBILE ASSOCIATION; USAA CASUALITY INSURANCE COMPANY; USAA GENERAL INDEMNITY COMPANY; and GARRISON PROPERTY AND CASUALITY INSURANCE COMPANY, Appellants. |
UNPUBLISHED OPINION
We granted a motion for discretionary review to United Services Automobile Association, USAA Casualty Insurance Company, USAA General Indemnity Company, and Garrison Property and Casualty Insurance Company (collectively USAA) of three trial court orders. These orders certified a class of plaintiffs, named David and Marissa Turk as class representatives, denied USAA's motion to strike a declaration of the Turks' expert witness, and granted partial summary judgment to the Turks on the issue of a release of liability affirmative defense.
Because a genuine issue of material fact exists as to the parties' intent in signing a release of liability, we reverse the partial summary judgment order. This release of liability gives USAA a unique defense to Marissa's[1] claim, preventing her from being a typical class member and adequate class representative. Additionally David is not a class member at all. Because neither class representative is typical of the class, we reverse the class certification order and remand for further proceedings.
On November 17, 2013, Miguel Perez, an unlicensed, uninsured driver, rear-ended the car Marissa drove, causing her to rear-end the vehicle in front of her. Marissa and her father David, took Marissa's car to be repaired after the accident. The car took thirty days to repair and they picked it up on December 27. Marissa did not rent a replacement car for the period of repair because she could not afford one.
At the time of the accident, Marissa had automobile insurance through USAA, including uninsured/underinsured motorists (UIM) coverage. Her UIM coverage provided for property damage (UMPD coverage) and bodily injury (UMBI coverage) in the event an uninsured driver was at fault. Her UIM policy included coverage for loss of use (LOU) of her vehicle during the period of its repair.
At the time of the accident, USAA had an internal rule to not pay UIM coverage until completion of an investigation into the specific case to confirm that the at-fault driver was uninsured. Many other types of insurance, including comprehensive, collision, and rental reimbursement coverage, would apply immediately after the accident, but USAA would not open UIM coverage until it had completed its investigation.
David assisted Marissa in communicating with USAA. David first contacted USAA the day of the accident. He discussed the damage to the vehicle and asked about getting a rental car. The USAA representative told David he would need to speak with an adjuster for details. The following day, David spoke with USAA insurance adjuster Paul Swain. David repeatedly asked about a rental car, but Swain told him that Marissa did not have rental insurance on her policy.
The police responded to the accident and learned that Perez did not have a license or insurance and that he did not own the vehicle he had driven. David relayed this information to USAA in his communication with USAA agents both on the day of the accident and the following day.
Swain explained to David his investigation into the Turks' claim. He said an investigation would be required because the mere fact a rear-end accident occurred did not suggest who was at fault. Swain listed the applicable types of coverage for the accident but did not include UIM, because he did not have any information that the accident potentially involved an uninsured motorist.[2]
USAA received a copy of the police report nine days after the accident. It included insurance information for Marissa and the driver of the car in front of her, but none for Perez. It also stated that Perez did not have a license. On December 4, USAA sent letters requesting insurance information to both Perez and the owner of the car he drove. USAA received a response from Perez on December 30 stating that he did not have insurance.
By January 6, 2014, Swain had determined that UIM coverage applied both to Marissa's bodily injury and property damage. He then transferred the claim to another adjuster who handled UIM bodily injury claims. That adjuster completed USAA's investigation and determined that UIM coverage applied because Perez did not have insurance.[3]
On December 11, 2013, the Turks retained attorney Jeanette Coleman to represent Marissa in her dealings with USAA. The scope of Coleman's representation was disputed by the parties and this dispute continues on appeal. The Turks and Coleman all stated in their depositions that Coleman's representation was limited to Marissa's UMBI claims.
The next day, Coleman sent a letter to USAA stating that her firm represented Marissa. She requested that further communications go through her office and requested "information regarding coverage for UIM, wage loss, car rental, and other benefits available to our client." Clerk's Papers (CP) at 674.
Starting the following January and every month thereafter throughout the year 2014, USAA sent Coleman a letter stating that the claim was unresolved. Most of these letters said it was unresolved because "the uninsured motorist bodily injury claim for Marissa Turk [was] still pending." CP at 472-83.
The Turks also retained Darrell Harber, a public adjuster, to represent Marissa's financial interest in the case. In November of 2014, Harber sent a letter to USAA stating that he had been retained as a public adjuster representing Marissa's financial interest and requesting that all communication and correspondence be directed only to him. He stated that Marissa would be making a diminished value claim.
In September 2014, the Turks filed a class action complaint against USAA for breach of contract for USAA's failure to pay LOU damages. The complaint named David and Marissa as class representatives.
On February 18, 2015, Coleman sent USAA a letter demanding $50, 000 to settle the bodily injury claims. Her letter did not discuss property damage claims. She negotiated with USAA and agreed to settle the bodily injury claims for $25, 000. In March 2015, USAA sent Coleman a proposed release of liability, labeled at the top "Uninsured Motorist Coverage Release (Bodily Injury or Death with Subrogation Provisions)." CP at 304. The first paragraph of the release stated:
I/we Marissa N Turk, of the City of Tacoma, State of Washington, being at least of the age of majority, for and in consideration of the sum of twenty five thousand ($25, 000.00), the receipt whereof is hereby acknowledged, do release, and forever discharge Garrison Property and Casualty Insurance Company (hereinafter called the COMPANY), in full and final settlement, from any and all claims that I/we may have under the Uninsured Motorist coverage . . . issued in the name of Marissa N Turk by the company for damages, both known and unknown, caused by the ownership, maintenance, or use of an uninsured automobile and resulting from an accident which occurred on or about November 17, 2013 at or near Renton, WA.
CP at 304. At the end of that paragraph, Coleman added a handwritten note that said "Does not include claims for diminished value property damage" and Marissa initialed the change before signing. CP at 308.
At her deposition, Coleman testified that she doesn't like to get involved in property damage disputes and so she frequently crosses out "property damage" on release forms. However, in this case, David had specifically discussed "diminished value" so she wrote that on the release. She stated that she added it "to make it abundantly clear" because she knew the Turks had somebody else representing them for property damage. CP at 762. She said that "in this particular case, [USAA] knew they weren't dealing with property damage, they were dealing with bodily injury" but that she never discussed property damage or the language of the release with USAA. CP at 758. When asked why she didn't strike out "any and all claims," she said she had assumed the release only covered bodily injury since it said that at the top of the form.
Swain, the first USAA adjuster to work on the claim, said that he did not know of any release form USAA generally used for release of UIM property damage. He said that, if he needed a release for property damage, he would not have used the one Marissa signed because it was "a bodily injury release." CP at 165. However, he stated that he lacked familiarity with the form because he worked exclusively on property damage claims.
USAA wrote Marissa a check for $28, 143.99. Writing on the check said: "Nature of Payment: Payment under Underinsured Motorists Bodily Injury, Personal Injury Protection coverage." CP at 616.
In November 2015, USAA moved for summary judgment because, among other reasons, it claimed Marissa had released all claims per the settlement agreement. The court denied the motion because it was "not willing to find that the release cover[ed] bodily injury and property damage." Report of Proceedings (RP) (Jan. 8, 2016) at 42.
The following February, USAA moved to amend its answer and file a counterclaim against Marissa for breaching the release agreement. The court denied the motion without prejudice finding that the issue felt "more like an affirmative defense rather than a counterclaim." RP (Mar. 4, 2016) at 10. The court stated that if USAA found new facts through discovery it was free to refile its...
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