Summary
reversing the trial court's denial of the defendant's summary judgment motion because the trial court permitted the case to proceed even though the plaintiff had not provided sufficient evidence to prove all five elements of a CPA claim
Summary of this case from Steele v. Extendicare Health Services, Inc.Opinion
No. 36480-8-II.
October 21, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-2-11146-5, Bryan E. Chushcoff, J., entered May 25, 2007.
Reversed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Hunt, J.
Karyn Whitacre, insured by Farmers Insurance, drove into the rear end of Erene Reed's vehicle. Farmers did not dispute liability and paid for repair work to Reed's car. A year later Reed submitted an additional claim to Farmers for the inherent diminished value of her car, due to the accident. Farmers denied her claim. Reed filed this Consumer Protection Act (CPA) action alleging that Farmers made misrepresentations in their letter denying her claim, thus violating the CPA. Farmers filed a motion for summary judgment, which the trial court denied. We granted discretionary review. Because Reed submitted no proof that she suffered any damage, we reverse the trial court's denial of summary judgment. Farmers is entitled to judgment as a matter of law.
FACTS
On December 11, 2004, Farmers' insured, Whitacre, struck Reed's car. Reed filed a claim with Farmers, which did not dispute liability for the accident. Reed was not insured with Farmers. Farmers paid nearly $6,300 to repair the damage to Reed's vehicle, and it also paid for a rental car while the mechanic repaired the car.
Approximately 11 months later, Reed sought payment from Farmers for the "inherent diminished value" of her car due to the accident. Clerk's Papers (CP) at 31. On November 9, 2005, Reed's attorney wrote Farmers demanding $1,510 in compensation for the diminished value of her car. Farmers' agent Gregory Lebien denied the claim in a letter dated December 18, 2005, where he explained that Farmers' "position is [that] the cost to restore the property has been tendered in paying for the cost to repair the property." CP at 39.
Reed's attorney explained that the $1,510 figure was the "mid-point" of the post-repair reduction in resale value determined by Darrell Harber, an "expert" Reed hired for the purpose of determining the diminished value of Reed's car. CP at 34. Harber's report was not submitted to the trial court for consideration on summary judgment and is not before us for review.
Lebien noted that the report Reed had submitted supporting her claim for diminished value did "not prove diminished value . . . [the report was] a projection and speculation as to what the vehicle would sell for immediately after the accident and subsequent repairs." CP at 39. Further, Lebien stated that the report did not account for the time elapsed nor the "use and enjoyment" of the vehicle since repairs were completed. CP at 39. Lebien's letter also stated that "Farmer's position has always been there is no diminished value on privately owned vehicles if the repairs are done properly to industry standards." CP at 38.
Lebien's letter also provided "some Washington case law on the issue: Washington Supreme Court in Certification From United States District Court for Western District of Washington v. Aetna Casualty and Surety Co., 113 Wn.2d 869, 784 P.2d 507 (Wa. 01/04/1990) found 'damages for injury to property are measured in terms of the amount necessary to compensate for the injury to the property interest. D. Dobbs 5.1, at 311. Therefore, damages for injury to property are limited under Washington law to the lesser of diminution in value of the property or the cost to restore or replace the property.'" CP at 38-39. Farmers concedes that this case law is taken from the dissent in Aetna.
Reed sued and named Farmers, Lebien, and Whitacre as defendants. As to Farmers and Lebien, Reed alleged CPA violations and intentional infliction of emotional distress. She sued Whitacre for negligence. Farmers filed a motion for summary judgment on all claims. Before the summary judgment hearing, Reed voluntarily dismissed the CPA claim against Lebien. Reed also settled with Whitacre on the diminished value of the car; Farmers paid that judgment.
Granting Farmers' and Lebien's motion, the trial court dismissed the claims for intentional infliction of emotional distress. The trial court refused, however, to dismiss the CPA claim. Instead, it ruled that an uninsured third party could bring an action against an insurance company where an entire "class" of claims went unpaid. Report of Proceedings (RP) at 33.
These claims are not at issue on appeal.
Contending that the trial court's decision was obviously and probably contrary to law, Farmers filed this petition for discretionary review. We granted review and hold that the trial court's ruling was improper.
ANALYSIS
I. Standard of Review
We review summary judgment orders de novo and perform the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). We examine the pleadings, affidavits, and depositions before the trial court and "take the position of the trial court and assume facts [and reasonable inferences] most favorable to the nonmoving party." Ruff v. King County, 125 Wn.2d 697, 703, 887 P.2d 886 (1995) (citing Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985)). Summary judgment is proper if the record before the trial court establishes "that there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c).
II. Trial Court's Ruling Not Supported by Evidence
The trial court based its denial of summary judgment on an argument neither party made and on facts the record does not support. It held that Reed could maintain her CPA claim on the basis that Farmers had a blanket policy of denying all claims of diminished value, regardless of individual circumstances. Additionally, the trial court assumed that Reed suffered some diminished value to her vehicle because of the accident. That Farmers had a blanket policy to deny diminished value claims was neither briefed nor argued by either party. There is insufficient evidence in the record to prove that Farmers had such a blanket policy, and no evidence that Reed suffered actual loss.
It is well settled that in order to prevail in a private CPA action, a plaintiff must establish five distinct elements: (1) unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her business or property; (5) causation. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986).
A. Insufficient Evidence of Unfair Practice
The only evidence Reed presented to support the trial court's determination that a blanket policy existed (alleged unfair or deceptive practice) is the letter dated December 18, 2005, from Farmers denying her claim. This letter states that "Farmer's position has always been there is no diminished value on privately owned vehicles if the repairs are done properly to industry standards." CP at 38.
This letter alone is insufficient to support the trial court's finding. It is one sentence in a letter to a third party denying a claim. Without more than one sentence from one letter, and assertions to the contrary, there is little evidence to support a finding that Farmers has a blanket policy of denying third party diminished value claims.
B. No Evidence of Actual Loss
Even if there was sufficient evidence to support the blanket policy claim, there was no evidence that Reed suffered an actual loss. To prove Reed's car had a diminished value she submits to us a report prepared by an auto mechanic, but this report was not submitted to the trial court for review. The trial court permitted the case to proceed even though Reed clearly had not provided sufficient evidence to prove all five elements of a CPA claim. Specifically, Reed failed to provide any evidence to the trial court that she, in fact, suffered an injury to her business or property.
Because Reed did not prove all five elements of a CPA claim, the trial court should have found for Farmers and granted their motion for summary judgment. Thus, we reverse the trial court's ruling and hold that Farmers is entitled to summary judgment as a matter of law.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and HUNT, J., concur.