Opinion
No. 56390-4-I.
June 19, 2006.
Appeal from judgments of the Superior Court for Whatcom County, No. 04-2-00944-4, Steven J. Mura, J., entered January 7 and June 3, 2005.
Counsel for Appellant(s), David Lawrence Day, Fairhaven Legal Associates. PS, 816 E Fairhaven Ave, PO Box 526, Burlington, WA 98233-0526.
Counsel for Respondent(s), Thomas Lether, Cole Lether Wathen Leid PC, 1000 2nd Ave Ste 1300, Seattle, WA 98104-1082.
Affirmed by unpublished per curiam opinion.
In March 2001, respondent American Economy Insurance Company denied appellant Mel Gerry's claim for personal property damaged in a December 1996 snowstorm. In April 2004, Gerry filed this action for breach of contract, insurance bad faith, and violations of the Consumer Protection Act (CPA). The trial court dismissed the claims on summary judgment. Finding no material factual dispute, we affirm.
FACTS
Viewed in the light most favorable to Gerry, the record before the trial court establishes the following sequence of events. In December 1996, an unusually heavy snowfall damaged three outbuildings on property near Bellingham owned by appellant Mel Gerry. The weight of the snow caused the roof of one of the buildings to collapse onto the contents; the roofs on the two other buildings sagged under the weight of the snow, eventually permitting water to damage the contents. All three of the buildings `were full of various items of miscellaneous personal property, building materials, and supplies.'
At the time of the snowfall, Gerry was an insured under a homeowner's insurance policy issued by respondent American Economy Insurance Company. Gerry submitted a claim to American Economy for the damage to the buildings and their contents on December 30, 1996. An American Economy adjuster inspected the property in early January 1997. On January 23, 1997, American Economy paid Gerry $10, 710.00, the full policy limits, for structural damage to the outbuildings.
In order to process Gerry's claim for damage to the personal property stored in the outbuildings, American Economy repeatedly requested an inventory. Gerry finally submitted an inventory on December 8, 1999, claiming a loss of personal property with a replacement value of $76,352.24. Gerry explained that by this time, nearly three years after the snowfall, he had discarded all of the damaged items `because [American Economy] didn't want to see them.' At the time of his deposition on October 28, 2004, Gerry was unable to recall whether, or to what extent, he had responded to American Economy's repeated requests in 2000 for additional information and documentation about his claim. Nor could Gerry recall many details about the items of personal property that had been damaged.
By letter dated March 21, 2001, American Economy informed Gerry that it had completed its investigation and was denying his claim for damage to personal property. The denial was based on the following grounds: (1) Gerry's failure to identify the specific items of personal property covered under the policy, which was limited to damage caused by the weight of snow; (2) coverage was excluded under the terms of the policy because Gerry had failed to use reasonable means to preserve many items of property, which had apparently remained in the leaking buildings for several months; (3) that Gerry's coverage would, in any event, be limited because it appeared that much of the property was used in Gerry's handyman business; and (4) Gerry's failure to comply with the conditions of his policy, including his failure to provide a complete inventory list and documentation to support his claim. American Economy also noted that it was reserving the right to rely on the policy's one-year suit limitation.
On April 23, 2004, more than three years after the denial of his claim, Gerry filed this action against American Economy, alleging breach of contract, insurance bad faith, and violations of the Consumer Protection Act. American Economy moved for summary judgment, arguing that all of Gerry's claims were barred, either by the one-year policy limitation or by the relevant statute of limitations. On January 7, 2005, the trial court granted American Economy's motion in part, dismissing Gerry's breach of contract and insurance bad faith claims as untimely. The court reserved ruling on the timeliness of the CPA claim pending additional briefing. On June 3, 2005, following additional briefing and a hearing, the trial court dismissed the CPA claim on summary judgment.
In response to the summary judgment motion, Gerry conceded that the insurance bad faith claim was time barred.
Standard of Review
When reviewing a grant of summary judgment, an appellate court undertakes the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). We consider the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' CR 56(c); White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997).
DECISION
Gerry first contends the trial court abused its discretion in denying his motion for leave to amend the pleadings. See CR 15. Gerry argues that the trial court should have permitted him to formally add a claim of equitable estoppel to the body of the complaint. The trial court denied the motion at the conclusion of the first summary judgment hearing. We review the trial court's denial of a motion to amend pleadings for an abuse of discretion. Wilson v. Horsley, 137 Wn.2d 500, 505, 974 P.2d 316 (1999). As Gerry acknowledges, equitable estoppel was expressly listed as one of the claims in the caption of his complaint, and he alleged facts in the body of the complaint that would support the claim. Moreover, at the conclusion of the first summary judgment hearing, the trial court expressly permitted Gerry to identify any facts in the record that would support his claim of equitable estoppel. Finally, Gerry fully argued his claim of equitable estoppel in response to American Economy's summary judgment motions, and he does not allege that the trial court failed to consider these arguments. Nor has he identified any other prejudice resulting from the trial court's ruling. Under the circumstances, Gerry has failed to demonstrate that the trial court abused its discretion in denying his motion to amend the complaint.
The trial court expected Gerry to identify the supporting facts in a motion for reconsideration, and Gerry subsequently filed an untimely motion for reconsideration. But the trial court apparently never ruled on the motion, and Gerry has not alleged any error involving the motion for reconsideration.
Gerry next contends the trial court erred in dismissing his breach of contract claim on summary judgment. He argues there is a factual dispute as to whether American Economy should be equitably estopped from relying on the one-year time bar contained in its policy. Such policy limitations are valid and enforceable. See generally Ashburn v. Safeco Ins. Co., 42 Wn. App. 692, 713 P.2d 742, review denied, 105 Wn.2d 1016 (1986); RCW 48.18.200(1)(c).
The elements of equitable estoppel are (1) an act that is inconsistent with a later claim; (2) another party's reasonable reliance on the act; and (3) injury to the other party that would result if the first party is permitted to repudiate the earlier act. Dombrosky v. Farmers Ins. Co., 84 Wn. App. 245, 256, 928 P.2d 1127 (1996), review denied, 131 Wn.2d 1018 (1997). Equitable estoppel is not favored, and the party asserting estoppel must prove each of the elements by clear, cogent, and convincing evidence. Robinson v. City of Seattle, 119 Wn.2d 34, 82, 830 P.2d 318, cert. denied, 506 U.S. 1028 (1992). Unless only one reasonable inference can be drawn from the evidence, application of estoppel is generally an issue of fact. Litz v. Pierce County, 44 Wn. App. 674, 683, 723 P.2d 475 (1986).
Essentially, Gerry contends there is a factual issue as to whether estoppel applies because American Economy continued to investigate his claim long past the one-year time period. But Gerry cites no authority suggesting that such actions, without more, are sufficient to support an estoppel claim. Moreover, even if it is assumed that estoppel might apply until American Economy denied Gerry's claim on March 21, 2001, Gerry waited more than three years after the denial before filing this action. Gerry has not identified any facts or authority that would support application of an estoppel theory under such circumstances. See Dickson v. United States Fidelity Guaranty Co., 77 Wn.2d 785, 788, 466 P.2d 515 (1970).
Finally, Gerry contends the trial court erred in dismissing his CPA claim on summary judgment. In order to maintain a CPA claim, Gerry was required to prove (1) an unfair or deceptive act or practice, (2) occurring in the conduct of trade or commerce, (3) that impacts the public interest, and (4) proximately causes injury to the plaintiff in his or her business or property. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 785-93, 719 P.2d 531 (1986). The first two elements can be established by demonstrating a violation of WAC 284-30-330. See Industrial Indem. Co. of the N.W., Inc. v. Kallevig, 114 Wn.2d 907, 920, 792 P.2d 520 (1990).
On appeal, Gerry's argument as to the first two elements of his CPA claim consists solely of an enumeration of certain sections and subsections of WAC 284-30. Gerry has not further identified the nature of the alleged violations or submitted any supporting legal argument. Nor has Gerry identified evidence in the record to support the existence of any specific violation of WAC 284-30. Once the moving party has met its burden on summary judgment, the nonmoving party may not rely on `conclusory allegations, speculative statements or argumentative assertions.' Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992). `Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.' Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290, review denied, 136 Wn.2d 1015 (1998). Because Gerry has failed to establish any factual dispute as to the existence of an unfair or deceptive act or practice, the trial court did not err in dismissing his CPA claim on summary judgment.
Affirmed.
AGID, APPELWICK and BAKER, JJ.