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Williams v. Turner6/3/1999
d, and unsupportable, given Ms. Anderson and Mr. Turner's denial of the Williamses' claim.
Striking Marty Coulter's Affidavit.
Given the unusual motion by which the Williamses brought the questions of liability and damages before the court, it is not surprising that Ms. Anderson and Mr. Turner did not file responsive affidavits. The Williamses neither moved for default nor moved for summary Judgement. Because the extraordinary motion did not follow a trial or motion for default or summary Judgement, the civil rules pertaining to those procedures would not require a response. Accordingly, when the court entered its order for a money Judgement, it was appropriate that Ms. Anderson and Mr. Turner provide a responsive affidavit. We conclude the trial court therefore abused its discretion in refusing to consider it. Chen v. State, 86 Wn. App. 183, 192, 937 P.2d 612, review denied, 133 Wn.2d 1020 (1997). Cross-Appeal.
On cross-appeal, the Williamses assert the right to attorney fees under Olympic S.S. and for damages for violation of the Consumer Protection Act. Given our Disposition of the primary issues on appeal, we need not address these questions.
The motion to strike the Williamses' Reply Brief of Respondents/Cross-Appellants is denied.
Conclusion
We reverse the order of third party arbitration because Ms. Anderson and Mr. Turner are not contractually bound by the arbitration provisions in the Williamses' insurance policy. Because Ms. Anderson and Mr. Turner filed a demand for jury trial, we remand for a jury determination of liability and damages on the third party claim. We also reverse the order requiring payment of $1,021.87 to the Williamses for property damages. Furthermore we hold the trial court abused its discretion in striking the responsive affidavit of Ms. Coulter. Because we reverse and remand on the primary issues on appeal, we need not address the Williamses' cross-appeal.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Sweeney, J.
WE CONCUR:
Kurtz, A.C.J. Brown, J.
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