Opinion
NO. CV-08-221-RHW.
November 6, 2009
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS COUNTERCLAIM
Before the Court is Plaintiff's Motion to Dismiss Counterclaim (Ct. Rec. 53). The motion was heard without oral argument.
In this action, Plaintiff Westport Insurance Corporation filed a declaratory action seeking to have this Court declare that it does not have a duty to defend or indemnify the Markham Group, Inc., P.S. and Mark Kamitomo in connection with an alleged legal malpractice claim of Rachael Naidu. Plaintiff named as a defendant Ms. Naidu, individually and as personal representative of the Estate of James L. Overcash.
In her answer, Ms. Naidu asserted a counterclaim for reasonable attorneys fees. Plaintiff moves to dismiss this counterclaim, arguing that a third-party claimant has no right of action against an insurance company for breach of the duty of good faith. The Court agrees.
Ms. Naidu's claim for attorneys fees is barred by Tank v. State Farm Fire Cas. Co., 105 Wash.2d 381 (1986). Ms. Naidu had not alleged a non- per se Consumer Protection Act claim. Defendant has not alleged that Plaintiff engaged in unfair or deceptive acts that induced Ms. Naidu to act or refrain from acting, nor could she, based on the Court's understanding of the facts of this case. The Court does not find that Defendant was the intended beneficiary of the contract between Plaintiff and Defendant Kamitomo. Finally, the Court declines to extend Olympic Steamship to permit Ms. Naidu to recover her fees in this action. The Court declines to permit Ms. Naidu leave to amend her complaint, given the posture of this case.
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff's Motion to Dismiss (Ct. Rec. 53) is GRANTED.
2. Defendant Naidu's counterclaim for reasonable attorneys' fees is dismissed, with prejudice.
IT IS SO ORDERED. The District Court Executive is directed to enter this Order and to provide copies to counsel.