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Kadabra-Lord v. State Farm Mutual Automobile Insurance Co.8/6/2001
s that it is organized around the June accident, and the only claim number referenced is for that accident. Presented with this evidence, a jury could reasonably conclude that State Farm at a minimum needed to seek clarification of Dr. Fu's report before relying on it to deny payment for the November accident. A simple telephone call or letter from State Farm to Dr. Fu was all that would have been necessary to resolve any question about what he meant. Standing pat on a self-serving interpretation of the report and ignoring the indications that Dr. Fu was not stating an opinion about the second accident can be seen as a breach of State Farm's obligation to give equal consideration to Lord's interest as a paying insured.
In summary, a jury could find that State Farm refused to pay Lord's claim without conducting a reasonable investigation, and that the refusal to pay forced her to institute litigation to recover amounts due. Lord has satisfied her burden under Ellwein of showing a real dispute about whether State Farm had a reasonable basis for refusing further payment for the second accident. Material issues of fact preclude summary judgment on the bad faith and Consumer Protection Act claims.
State Farm also contends that Lord cannot show she was damaged because, in the end, all of her medical bills were paid. The same argument was rejected by this court in Anderson:
On remand she is entitled to a trial to prove the amount of damages, both financial and emotional, caused by State Farm's bad faith failure to disclose a pertinent coverage and the resulting delay in obtaining coverage. Anderson, 101 Wn. App. at 333.
Similar to Anderson, Lord alleges that she incurred finance charges and other damages as a result of the delay in payment. At trial, she will have an opportunity to prove harm that resulted from the insurer's bad faith acts. Coventry v. American States Insurance Co., 136 Wn.2d 269, 276, 961 P.2d 933 (1998).
State Farm further contends that Lord's claims must be dismissed because in responding below to the motion for summary judgment, she failed to present documentary proof of any damages. However, State Farm cites only to its reply brief below. Its initial motion for summary judgment challenged Lord's proof only on liability. Because the motion did not place the element of damages at issue, Lord was under no obligation to respond by presenting proof of compensable damages. See White v. Kent Medical Center, Inc., 61 Wn. App. 163, 169, 810 P.2d 4 (1991) (it is incumbent upon the moving party to 'clearly state in its opening papers' the issues upon which it seeks summary judgment).
We reject Lord's request for an award of attorney fees under Olympic Steamship v. Centennial Insurance Co., 117 Wn.2d 37, 811 P.2d 673 (1991). Such an award is allowable only where there is a dispute concerning coverage. Kroeger v. First Nat'l Ins. Co., 80 Wn. App. 207, 908 P.2d 371, review denied, 129 Wn.2d 1002 (1996). This case is over the denial of a claim and the amount of a claim; State Farm did not deny the existence of coverage. See Anderson, 101 Wn. App. at 338. However, Lord also is entitled to proceed below on her Consumer Protection Act Claim. In the event that Lord prevails on that claim on remand, the trial court is directed to include a reasonable award of attorney fees and costs for this appeal in its award of Consumer Protection Act attorney fees.
Reversed.
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