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Zurich Insurance Company v. Continental Insurance Company6/19/2000
ut this requisite showing does not constitute bad faith, trigger a presumption of harm, or allow coverage by estoppel.' Kirk, 134 Wn.2d at 560-61. Zurich does not argue that the respondents' actions were frivolous or unfounded. In fact, the record indicates that the respondents reassigned the defense in the midst of a dispute with the Taylors' counsel over the segregation of defense costs between covered and non-covered claims. We therefore reject this estoppel argument as well.
Waiver
Zurich finally argues that the respondents waived their coverage defenses by accepting the insureds' defense. Waiver is the voluntary and intentional relinquishment of a known right. Saunders v. Lloyd's of London, 113 Wn.2d 330, 339, 779 P.2d 249 (1989). Zurich contends that the respondents' initial determination that they had a duty to defend should be controlling in this circumstance, citing Toulouse v. New York Life Ins. Co., 40 Wn.2d 538, 541, 245 P.2d 205 (1952). But here, after reevaluating their coverage obligations, the respondents promptly notified the insureds that they were denying coverage and a duty to defend on the claims. The respondents' actions thus were consistent with their contention that their initial acceptance of the tender was a mistake or error, not an intentional decision to waive a known defense to coverage. Cf. Underwriters at Lloyds v, Denali Seafoods, Inc., 927 F.2d 459, 462 (9th Cir. 1991); R.A. Hanson, 15 Wn. App. at 614 ('Initial acceptance of the defense might have been oversight or lack of knowledge of noncoverage but manifests no intent to relinquish a known right when viewed in light of subsequent withdrawal.'). Therefore, we reject that argument.
We conclude that the respondents had no duty to defend Zurich's insureds on the claims asserted against them, and thus the trial court did not err in dismissing Zurich's suit for contribution. We consequently reject the appellant's request for attorney fees.
We affirm.
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