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Fluke Corp. v. Hartford Accident & Indemnity Co.8/28/2000
of Washington law. Hartford, having promised to cover those sums that Fluke became obligated to pay as damages because of malicious prosecution, and having failed to exclude punitive damages from the reach of its insuring clause, must cover Fluke for both types of damages Fluke became obligated to pay as a result of the California jury verdict.
6. Fluke is entitled to attorney fees under Olympic Steamship.
The trial court awarded fees to Fluke under Olympic Steamship Co. Inc. v. Centennial Ins. Co., 117 Wn.2d 37, 811 P.2d 673 (1991). Hartford challenges the award to the extent that it includes fees Fluke incurred defending against a declaratory action Hartford filed in California. Hartford's California lawsuit raised the same coverage issues as the Washington suit that gave rise to this appeal. Fluke's attorneys in California obtained dismissal of Hartford's action in favor of the first-filed Washington suit. We review a trial court's award of attorney fees for abuse of discretion. Schumacher Painting Co. v. First Union Management, Inc., 69 Wn. App. 693, 701, 850 P.2d 1361, review denied, 122 Wn.2d 1013 (1993).
Hartford asserts, citing federal cases, that a Washington court may not award fees incurred by Fluke in another jurisdiction. See Lundin v. Mechan, 980 F.2d 1450 (D.C. Cir. 1992); Home Placement Service Inc. v. Providence Journal Co., 739 F.2d 671 (1st Cir. 1984); Stryker Corp. v. Intermedics Orthopedics, Inc., 898 F. Supp. 116 (E.D. N.Y. 1995). These cases do not establish a general rule precluding recovery of fees incurred in another court. Under Olympic Steamship, Fluke is entitled to recover fees for legal action the insured is compelled to assume to obtain the full benefit of promised coverage. In support of its award of attorney fees, the trial court found that the fees billed to Fluke, including the fees of the California attorneys, were reasonable and 'were necessarily incurred in an effort to establish insurance coverage in this litigation.' The finding of necessity, unchallenged by Hartford on appeal, adequately justifies including the California attorney fees in the Olympic Steamship award. We affirm the trial court's award of attorney fees to Fluke. Fluke is also entitled, under Olympic Steamship, to an award of its fees and costs for this appeal.
The order of summary judgment declaring Fluke covered for compensatory damages is affirmed. The order of summary judgment in favor of Hartford on the issue of punitive damages is reversed. The trial court is directed to enter summary judgment declaring that Fluke is covered for punitive damages. The trial court's award of fees to Fluke is affirmed. Fluke is awarded fees on appeal.
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