IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

LAZURI DANIELS, individually, and on ) behalf of all those similarly situated ) ) No. 75727-0-1 Appellant, ) DIVISION ONE v.

STATE FARM MUTUAL AUTOMOBILE) INSURANCE COMPANY, ) PUBLISHED OPINION

Respondent. ) FILED: July 16, 2018

SPEARMAN, J. — When interpreting a term or phrase in an insurance

contract, we view the term or phrase in the context of the entire contract and not

in isolation. We consider the insurance policy as a whole, giving the policy a fair,

reasonable, and sensible construction as would be given to the contract by the

average person purchasing insurance. Where possible, we harmonize provisions

of the contract that appear to be in conflict to give effect to all of the contract's

provisions. But we avoid a literal, strained or forced interpretation which could

lead to absurd results. In this case, Lazuri Daniels purchased an automobile

insurance policy from State Farm Mutual Automobile Insurance Company (State

Farm). Under the terms of the policy, State Farm has the right to recover

payments it is obligated to make, but it may only exercise that right after Daniels No. 75727-0-1/2

has been fully compensated for damage or loss. The policy also provides that

Daniels pay a deductible to cover the first $500 of the loss.

When Daniels' vehicle was damaged in a collision, she paid the deductible

and State Farm paid the remaining amount of the cost to repair her car. When

State Farm recovered 70 percent of the amount it paid for the repair from the

tortfeasor's insurance company, it also recovered 70 percent of Daniels'

deductible payment and paid it to her. Daniels contends State Farm violated the

policy because it did not pay her the full amount of the deductible. She claims

that before State Farm could exercise its right to recover the payments it made,

the policy requires that she be "fully compensated" for her loss which she argues

includes the full amo nt of the deductible. State Farm contends that it satisfied

the policy's terms be ause Daniels was fully compensated when it paid the cost

to repair her car. It disputes that, as that term is used in the policy, "fully

compensated" includes Daniels' deductible. The trial court agreed with State

Farm and dismissed aniels' claims.

We hold that tate Farm fully compensated Daniels for her loss when it

paid for the repairs o the car and properly exercised its right to recover that

payment. We affirm.

FACTS

Lazuri Daniels car was damaged in a three car accident. State Farm

insured her vehicle f r collision coverage with a $500 deductible. Daniels paid

the deductible and State Farm paid the remaining cost to repair the car.

2 No. 75727-0-1/3

In subrogation, State Farm sought payment for the repairs from Geico,

which insured one of the other drivers. Attributing 70 percent fault to its client,

Geico agreed to pay70 percent of the cost to repair Daniels' car. Pursuant to

insurance regulation State Farm also sought reimbursement for Daniels'

deductible. It returned $350, or 70 percent, of her deductible to Daniels.

Daniels filed a complaint asserting that State Farm violated the insurance

policy by failing to fully reimburse her deductible with funds obtained in its

subrogation effort against Geico. She pleaded claims for breach of contract, tort

of bad faith, and conversion, and she requested class action certification.

State Farm moved to dismiss the complaint. Meanwhile, not satisfied with

the reimbursement amount from Geico, State Farm sought arbitration. The

arbitrator determined that Geico's client was 100 percent at fault for the accident.

State Farm recovere and gave Daniels the remaining $150 of her deductible.

The trial court granted State Farm's motion to dismiss. Daniels appeals.

DISCUSSION

Daniels argue that the trial court erred in dismissing her complaint. She

contends that State Farm did not comply with the terms of its policy when it failed

to return her full deductible before retaining money it received in subrogation.

We review a CR 12(b)(6) dismissal de novo. FutureSelect Portfolio Mgmt.,

Inc. v. Tremont Grp. Holdings, Inc.,

,

(2014).

Dismissal is warranted if the court concludes beyond a doubt that "the plaintiff

cannot prove any set of facts which would justify recovery." Tenore v. AT&T

Wireless Services,

,

(1998).

3 No. 75727-0-1/4

Interpretation of an insurance contract is a question of law that we also

review de novo. Averill v. Farmers Ins. Co. of Wash.,

,

(2010). Because they are generally contracts of adhesion, courts

look at insurance contracts in a light most favorable to the insured.

(Citing

Panorama Viii. Condo. Owners Ass'n Bd. of Dir. v. Allstate Ins. Co.,

,

(2001)). A contract of insurance should be given a fair,

reasonable and sensible construction, consonant with the apparent object and

intent of the parties, a construction such as would be given the contract by the

average person purchasing insurance. Morgan v. Prudential Ins. Co. of Am.,

,

(1976)(citing Ames v. Baker,

,

(1966))."Where possible, we harmonize clauses that seem to conflict in

order to give effect to all of the contract's provisions." Kut Suen Lui v. Essex

Ins., Co.,

,

(2016). We also give the contract a

practical and reasonable rather than a literal, strained or forced interpretation

which would lead to an absurd conclusion.

."The insurance

contract must be viewed in its entirety; a phrase cannot be interpreted in

isolation." Allstate Ins. Co. v. Peaslev,

,

(1997).

The policy language at issue here states:

12. Our Right to Recover Our Payments

c. Underinsured Motor Vehicle Property Damage Coverage and Physical Damage Coverages If we are obligated under this policy to make payment to or for a party who has a legal right to collect from another, then the right

4 No. 75727-0-1/5

of recovery of such party passes to us. Such party must help us recover our payments by: (1) keeping our right to recover our payment in trust for us and doing nothing to impair that legal right; (2) executing any documents we may need to assert that legal right; and (3) taking legal action through our representatives when we ask. Our right to recover our payments applies only after the insured has been fully compensated for the bodily injury', property damame, or loss.

Clerk's Papers at 80.(Emphasis added).

Daniels contends that the policy unambiguously conditions State Farm's

right to recover its payments on Daniel's full compensation for her property loss,

including her full deductible. Daniels argues that in the absence of a conflicting

policy definition, the term "loss" can only mean "the total amount of the insured's

damages." Appellant's Reply Br. at 7. Thus, she contends that State Farm has

no right to subrogation until she receives full compensation for the total amount

of her loss, which would include that part of the loss covered by her deductible.

State Farm argues that "fully compensated" means payment of the

insured's property loss less the deductible. And, because it paid this amount,

State Farm contends that under the policy, it is entitled to subrogation of her

claims. We agree with State Farm.

Daniels reading of the insurance contract is flawed in a number of

respects. First, Daniels asserts that under the contract, State Farm has no right

to seek recovery at all, unless and until its insured obtains a full refund of his or

1 Although the parties agree that the policy contains a definition of the term "loss," it is not included in the record before us. The parties also agree that the policy does not define the term "fully compensated."

5 No. 75727-0-1/6

her deductible. "Whatever rights State Farm may have to recover its payments, it

does not have those rights until after its insured has been fully compensated for

the loss." Br. of Appellant at 15. And to the extent State Farm has a right to seek

recovery, it "has no such rights until its insured receives full compensation." Id. at

17. But reading the contract to preclude State Farm's subrogation unless Daniels

first obtains a full refund of her deductible leads to absurd results. Under Daniels

reading of the contract, before State Farm could assert a subrogation claim

against a third party, one of two things would have to occur. First, State Farm

would have to refund the deductible that Daniels paid, which would make the

provision requiring the payment of the deductible meaningless. Or, second,

Daniels would have to obtain reimbursement from the third party on her own. And

if she failed to do so for any reason, or simply chose not to, State Farm would be

barred from seeking recovery of the payments it made from the responsible third

party.

In addition, Daniels' reading of the contract is inconsistent with WAC 284-

30-393, which places the burden of pursuing a refund of the insured's deductible

on the insurer. Under that regulation:

The insurer must include the insured's deductible, if any, in its subrogation demands. Any recoveries must be allocated first to the insured for any deductible(s) incurred in the loss, less applicable comparable fault. Deductions for expenses must not be made from the deductible recovery unless an outside attorney is retained to collect the recovery. The deduction may then be made only as a pro rata share of the allocated loss adjustment expense... .

The regulation recognizes that insureds often lack the resources or incentive to

pursue recovery of what is very often a small amount of money. It therefore

6 No. 75727-0-1/7

places the burden of collecting the refund on the insurer. But the regulation

assumes that the insurer's ability to proceed with a subrogation claim precedes a

refund of the deductible to the insured. Daniels reading of the contract does just

the opposite. The logical result of her interpretation is that State Farm is either

precluded from subrogating its claim and thus its ability to obtain a refund of

Daniels' deductible or Daniels would have to seek the refund on her own. In

either event, the purpose of the regulation would be frustrated. State Farm either

was or was not entitled to exercise a subrogation right. If it was, then by Daniels'

own definition, she was "fully compensated." If it wasn't, then the issue isn't how

State Farm allocated the funds it received, but instead that it was subrogating its

claim at all. Daniels can't have it both ways.2

We conclude that the only reasonable interpretation of the term "fully

compensated" as used in the insurance contract at issue in this case, does not

include the amount of deductible paid by the insured. The trial court did not err in

dismissing Daniels' complaint on this ground.3

2 The dissent also argues that State Farm's right to recover its payments is not at issue and complains that this is just"a straw man argument." Dissent at 23. The dissent appears to suggest that State Farm has the right to pursue recovery of its payments from third parties, regardless of whether the insured has been fully compensated, despite Daniels' explicit argument to the contrary. See Br. of Appellant at 10,(State Farm's "right to pursue third party recoveries" was "entirely contingent on her first being fully compensated for her loss.") See also Br. of Appellant at 15, 17. 3 State Farm relies heavily on Meas v. State Farm Fire and Cas. Co.,

,

(2005). In that case the court stated that the insured was "fully compensated or 'made whole'for the property loss claimed under his collision coverage when he received payment from State Farm. Further, State Farm recovered his deductible and paid it to him."

. State Farm argues that this statement establishes that the term "fully compensated" does not include the insured's payment of the deductible. But we do not find the case persuasive because the quoted assertion is made without analysis and was not germane to the central issue before the court.

7 No. 75727-0-1/8

Daniels also argues that she stated a claim for recovery under WAC 284-

30-393, which requires that a subrogating insurer also seek recovery of the

insured's deductible, less applicable fault. Daniels argues that State Farm

violated this provision by not reimbursing her full deductible because it was later

determined by an arbitrator that she was not at fault.

State Farm complied with WAC 284-30-393. It included Daniels'

deductible with its subrogation demand and originally reimbursed her 70 percent

based on Geico's initial determination that its insured was 70 percent at fault. It

then fully reimbursed her when an arbitrator concluded that she was not at fault.

Daniels relies on hindsight to argue that, because she was ultimately found not at

fault, she should have been originally reimbursed her full deductible. But State

Farm's incremental implementation of WAC 284-30-393 was reasonable and

complied with the plain language of the regulation. In addition, because Daniels

did not plead lack of fault in her complaint, the record does not support her

argument that she had no "applicable comparable fault" at the time she was first

reimbursed her deductible. The trial court did not err in finding that there was no

violation.

8 No. 75727-0-1/9

Amendment of Complaint

Daniels argues that the trial court erred by denying her request that she be

granted leave to amend her complaint "to address any deficiencies found by the

trial court." Br. of Appellant at 27-28. The decision to grant leave to amend the

pleadings is within the discretion of the trial court. Sprague v. Sumitomo Forestry

Co. Ltd.,

,

(1985).

Daniels does not identify in her appellate brief how she might amend her

complaint. Thus, we cannot assess whether permitting amendment would cause

prejudice such as "undue delay, unfair surprise, and jury confusion." Wilson v.

Horsley,

,

(1999)(citing Herron v. Tribune

Pubrq. Co., Inc,

,

(1987). RAP 10.3(a)(6)

directs each party to supply, in its brief, "argument in support of the issues

presented for review, together with citations to legal authority and references to

relevant parts of the record." We do not consider conclusory arguments that are

unsupported by citation to authority. Joy v. Dep't of Labor & Industries,

,

(2012). Therefore, we decline to consider this

assignment of error.

Attorney Fees

Daniels seeks attorney fees under Olympic Steamship Co. Inc., v.

Centennial Ins. Co.,

,

(1991). Because Daniels is not

the prevailing party, she is not entitled to fees under Olympic Steamship.

9 No. 75727-0-1/10

Affirmed.4

/C c4At\ev., )c), WE CONCUR: r

4 Although both parties discuss Averill v. Farmers Ins. Co. of Washington,

,

(2010), at length, the case is inapposite because the contract language at issue in that case was different than the language we examine here. In addition, Daniels' reliance on Sherry v. Financial lndem. Co.,

,

(2007) and S & K Motors, Inc. v. Harco Nat. Ins. Co.,

,

(2009) is misplaced. Those cases involved situations where the insured recovered directly from the tortfeasor. In those circumstances the term "fully compensated" takes on a more expansive meaning.

10 Daniels v. State Farm Mut. Auto. Ins. Co., 75727-0-1

BECKER, J. — This appeal is part of an ongoing controversy about how to

allocate a collision deductible after a subrogation recovery by the insurer.

Appellant Daniels contends that her insurer, State Farm, was required to fully

compensate her for the deductible before keeping any part of the recovery it

obtained through subrogation from the tortfeasor who damaged Daniels' car.

State Farm made a recovery of 70 percent of the cost of repair from the insurer

of another car involved in the collision. Instead of making Daniels whole from

that recovery for 100 percent of her $500 deductible, State Farm sent her a

check for only 70 percent of it, or $350.1

The touchstone in Washington on this topic is Thiringer v. American

Motors Insurance Co.,

,

(1978). The controversy

arises from a case involving a deductible in which this court ruled that the made

whole doctrine of Thiringer has no application to the insurer's recovery in

subrogation. Averill v. Farmers Ins. Co. of Wash.,

,

, review denied,

(2010).

1 This case did not become moot when, some time later, State Farm obtained the remaining 30 percent from the insurer in arbitration and then returned to Daniels the remaining 30 percent of her deductible ($150). See Clerk's Papers at 65. The question posed by Daniels' appeal is whether an insurer is obligated to make its insured whole from the first dollars recovered in subrogation, without waiting to see whether further efforts will increase the amount of the insurer's recovery. No. 75727-0-1/2 (dissent)

Daniels' complaint alleges causes of action for breach of contract, bad

faith, and conversion. Respondent State Farm relies on Averill as the primary

basis for affirming the trial court's dismissal of Daniels' complaint for failure to

state a claim. Daniels maintains that Averill was wrongly decided, but argues in

the alternative that she is entitled to relief under the policy language even if the

common law made whole doctrine does not apply. The majority focuses

exclusively on the contract language and does not address Averill except to say

in a footnote that it is inapposite because the contract language at issue in that

case was different from the language in Daniels' policy. Majority at 10 n.4.

I respecffully dissent from the majority's conclusion that it would be an

absurd result if the policy language is interpreted to require reimbursing Daniels

for the deductible before State Farm takes any portion of the subrogation

recovery. But first, I must disagree that the case can be decided in favor of State

Farm without discussing Averill. Because Daniels has squarely presented the

argument that the made whole doctrine applies to the recovery of deductibles

notwithstanding Averill, we cannot ignore it. !would accept Daniels' request to

revisit Averill. I would hold that the made whole doctrine applies, that Averill is

inconsistent with Washington case law on subrogation and reimbursement, and

that the subrogation provision in the State Farm policy incorporates the made

whole rule of Thiringer. The order of dismissal should be reversed, and Daniels

should be allowed to proceed with her lawsuit.

The broad issue, as presented by Professor Robert Keeton, is, "After an

insurer has paid to an insured the benefits specified in the insurance contract,

2 No. 75727-0-1/3 (dissent)

what are the interests of the insurer and the insured in the insured's claim against

a third party allegedly responsible for the loss?" ROBERT E. KEETON, BASIC TEXT

ON INSURANCE LAW § 3.10(c)(2), at 160(1971). Keeton summarizes five

theoretical approaches to the problem of allocating proceeds of a recovery from a

third-party tortfeasor. They range from a rule that entitles the insurer to the full

amount recovered on the theory that the insurer is the sole beneficial owner of

the claim against the third party, to the opposite rule that rejects subrogation and

entitles the insured to the full amount recovered whether or not the total received

from the third party and the insurer exceeds the insured's loss. Keeton, at 161

62. In the middle, Keeton's "Third Rule" is a proration approach, whereby the

recovery from the third person "is to be prorated between the insurer and the

insured in accordance with the percentage of the original loss for which the

insurer paid the insured under the policy." Keeton, at 161.

Professor Keeton's "Fourth Rule" is, "Out of the recovery from the third

party the insured is to be reimbursed first, for the loss not covered by insurance,

and the insurer is entitled to any remaining balance, up to a sum sufficient to

reimburse the insurer fully, the insured being entitled to anything beyond that."

Keeton, at 161. This approach,followed by most courts, is termed the "Insured:

Whole" rule in Elaine M. Rinaldi, Apportionment of Recovery Between Insured

and Insurer in a Subrogation Case, 29 TORT & INS. L.J. 803, 805-06 (1994). The

Rinaldi article recognizes Washington as an "insured-whole" state that follows

Keeton's Fourth Rule, citing Thiringer as the basis for this classification. 29 TORT

& INS. L.J. at 807 & n.41.

3 No. 75727-0-1/4 (dissent)

The issue in Thiringer concerned the allocation of the proceeds of a

settlement obtained from the tortfeasor by the insured in a personal injury case

after the insurer had paid out coverage under a personal injury protection (PIP)

provision. The insurer argued that the proceeds "should be allocated first to the

special damages covered by the PIP provision or, in the alternative, prorated

between the general damages and the PIP damages." Thiringer,

. The court rejected this argument and held that the insurer was not entitled

to reimbursement until the insured had been made whole. "While an insurer is

entitled to be reimbursed to the extent that its insured recovers payment for the

same loss from a tort-feasor responsible for the damage, it can recover only the

excess which the insured has received . . . after the insured is fully compensated

for his loss." Thiringer,

. Thus, it is clear that Washington does

not belong in the "insurer-whole" or "proration" categories identified in Keeton, at

161. In Washington, the limiting principle is that "insureds are not entitled to

double recovery." Sherry v. Fin. lndem. Co.,

,

(2007). Under Thirincier, so long as the insured does not receive a double

recovery, the insured's interest comes first.

1. The made whole doctrine is not limited to recoveries made by the insured

Averill undermines Thiringer. Averill does this after surveying Thiringer

and cases applying it and then categorizing them as cases "where the insurer

sought reimbursement out of third party funds recovered by the insured." Averill,

. From this, Averill deduces that Thirincier does not apply

to cases where the insurer recovers directly from the tortfeasor in subrogation.

4 No. 75727-0-1/5 (dissent)

"Farmers pursued its own subrogation interest against the tortfeasor. The made

whole doctrine has no application to this recovery." Averill,

.

This narrowing of the Thirinqer principle is found in no other Washington case.

The Averill court adopted Farmers' premise that the key to application of

the made whole doctrine is "whether the insured or the insurer made the

recovery." Averill,

. The court cited no scholarly support for

this premise, and I have found none. The court acknowledged that Averill would

have been entitled to recover her full deductible if she had been the one who

obtained the third-party recovery. Averill,

. There is no

reason why the outcome should be different when it is the insurer who obtains

the recovery. Either way, it is the insured's loss that is being recovered. A

subrogating insurer is "standing in the shoes of its subrogor" and is thus acting in

the name of its insured against the third party when it pursues its reimbursement

right. Mahler v. Szucs,

,415 & n.8,

,

(1998).

The Averill court erred by limiting Thiringer to the procedural posture of the

cases in which it has previously been applied. Nothing in the law stated by those

cases, including Sherry and Mahler, forecloses applying the made whole rule to a

subrogation recovery obtained by the insurer; in fact, they indicate that it should

apply. The general view is that "subrogation creates in the insurer, by contract or

equity, a right to be reimbursed. The enforcement of the interest, whether by a

type of lien against the subrogor/insured's recovery from a tortfeasor or by an

action by the subrogee/insurer in the name of the insured against the tortfeasor,

5 No. 75727-0-1/6 (dissent)

is governed by the general public policy of full compensation of the insured."

Mahler,

(emphasis added). Averill is inconsistent with this

statement. By declaring that Thiringer applies only to "cases where the insured

recovers the payment and the insurer is seeking reimbursement, not vice versa,"

Averill nudges the made whole doctrine out of its central and influential place in

Washington insurance law. Averill,

(footnote omitted).

Indeed, State Farm's brief depicts Thirinqer's holding as narrow and suggests

that Averill should now be regarded as the leading case.

Averill confusingly invokes the common fund doctrine in support of its

analysis. The court says that if Averill had sued the tortfeasor directly, "the

combination of the property loss insurance payments and the third party recovery

would have created a common fund," and the made whole rule would have

limited Farmers to reimbursement of the property loss payments. Averill,

, citing Mahler,

. The common fund

doctrine is not the basis of the made whole rule of Thirinqer. Keeton and other

scholars do not mention the common fund doctrine when discussing the various

approaches to allocation of third-party recoveries. In Washington, the common

fund doctrine is the source of Mahler's requirement that the insurer pay a portion

of the insured's attorney fees when the insured achieves a recovery from the

tortfeasor that includes amounts previously paid by the insurer—for example,

personal injury protection benefits. Mahler,

. Sharing of

attorney fees was not an issue in the present case or in Averill, nor was it an

6 No. 75727-0-1/7 (dissent)

issue in Thiringer or Sherry. Injecting the common fund doctrine into the analysis

only muddles it.

Further muddling comes from attributing significance to the distinction

made in Mahler between reimbursement and subrogation. Averill,

n.2, citing Mahler,

n.9, 415 n.8. Reimbursement and

subrogation are terms with distinct meanings that are often used imprecisely.

But the fact that they have distinct meanings does not mean that the made whole

doctrine applies only to one and not the other. Averill invokes the distinction in its

search for a way to distinguish Sherry: "An offset such as in Sherry is akin to a

reimbursement claim from a common fund and, unlike in this case, the made

whole doctrine was triggered." Averill,

n.4. This is

unconvincing. Sherry does not say or suggest that the made whole doctrine is

triggered only when the insurer is seeking reimbursement. Sherry states that the

insured must be fully compensated for his loss before an insurer may seek "an

offset, subrogation, or reimbursement" for benefits already paid. Sherry,

(emphasis added), citing Thiringer,

. Sherry did

not condition application of the made whole doctrine on the difference between

subrogation and reimbursement, nor did it say anything about a common fund.

Sherry recognizes that Washington has adopted "a broad view of full

compensation." Sherry,

. Thus, Averill is inconsistent with the

reasoning in Sherry.

In short, the central holding proposed by Farmers and adopted in Averill is

result-driven. Inconsistencies with Washington's existing case law are glossed

7 No. 75727-0-1/8 (dissent)

over. This court should reject Averill's holding that the made whole doctrine

applies only when the recovery from the tortfeasor is initiated by the insured.

2. The made whole doctrine applies to deductibles

If the made whole doctrine truly applied only when the recovery from the

tortfeasor was initiated by the insured, there would have been no need in Averill

to go further. Instead, the Averill court provides a second and independent

rationale to bolster its result: the made whole doctrine does not apply to

deductibles.

This result is consistent with the purpose of the deductible. A deductible indicates the amount of risk retained by the insured. See Bordeauxf, Inc. v. Am. Safety Ins. Co.1, 145 Wn. App.[687,] 695-96[,

(2008), review denied,

(2009)]. The insurance policy shifts the remaining risk of any damages above the deductible to the insurance company. Id. Averill contracted to be out of pocket for the first $500. Farmers' subrogation interest was for the amount of the loss it paid Averill, not including the deductible amount. When Farmers pursued its subrogation interest, that interest did not include Averill's deductible. Allowing Averill to recover her deductible from Farmer' subrogation recovery would have changed the insurance contract to one without a deductible. We are not at liberty to rewrite the policy in this manner. Recovery by the insurer from a tortfeasor, under its subrogation interest for losses paid to its insured, is not the equivalent to a claim for reimbursement against a fund recovered by the insured and does not invoke the made whole doctrine. Averill is not entitled to recover her deductible from funds obtained by Farmers under subrogation from the third party's insurer.

Averill,

(footnote omitted).

Averill holds that an insured who agrees to a deductible effectively says

goodbye to it forever. "When Farmers pursued its subrogation interest, that

interest did not include Averill's deductible." Averill,

.

This is wrong. The cause of action (against the tortfeasor) "is indivisible." Garrity

8 No. 75727-0-1/9 (dissent)

v. Rural Mut. Ins. Co.,

,

(1977). The

subrogating insurer is acting in the name of the insured, Mahler,

, not in its own name.

By paying the deductible up front, Daniels did not give State Farm the right

to pursue in subrogation only its own interest in recovering the payments to

Daniels. State Farm stepped into Daniels' shoes and therefore had to pursue

Daniels' interest in recovering her deductible. It is Daniels who suffered the loss,

not State Farm. The cause of action belongs to Daniels, not to State Farm. The

idea that an insurer like State Farm is entitled to pursue only its own interest

implies—wrongly—that Daniels' claim can be split and that she was free to

proceed separately against the tortfeasors to recover her $500 deductible.

Daniels' right of recovery passed to State Farm via the insurance contract ("the

right of recovery of such party passes to us.")

Averill asserts that allowing the insured to recover her deductible from

Farmers' subrogation recovery "would have changed the insurance contract to

one without a deductible." Averill,

. This is not an accurate

statement. Whether or not there is a later subrogation recovery, a deductible

always produces the effect bargained for by the parties. It reduces the insurer's

obligation to investigate and pay for minor dings while reducing the premium for

the insured. Thus, requiring State Farm to first pay Daniels $500 out of a

subrogation recovery would not make the deductible ineffective.

The policy provision spelling out the insurer's right to subrogation is

independent of any deductible agreed to in the coverage. The right to

9 No. 75727-0-1/10 (dissent)

subrogation serves to maximize the insurer's profits to an extent that depends on

many variables: for example, whether there is a third party at fault; if so, whether

the torffeasor is insured; and how skillfully and efficiently the insurer pursues

subrogation. But the insurance contract does not guarantee that the insurer will

recover anything in any particular case.

In excluding deductibles from the made whole doctrine, Averill is

inconsistent with this court's decision in Bordeaux. In Bordeaux, we addressed

the nature of self-insured retention provisions in commercial general liability

policies. Self-insured retention provisions are analogous to deductibles.

Bordeaux, 145 Wn. App. at 695.2 Applying Thiringer, the Bordeaux court held

that an insured who paid a self-insured retention amount has priority over the

insurer when proceeds from a third-party tortfeasor become available. Bordeaux,

145 Wn. App. at 696-97.

In Bordeaux, two related developers, Bordeaux Inc. and Cameray Inc.,

were defendants in construction defect lawsuits brought by condominium

associations. Insurers for the developers defended them under a reservation of

rights. Under the policies, each developer was obligated to pay a self-insured

retention amount of $100,000 (analogous to a deductible) as a condition

precedent to the right to a defense and coverage. Analogous to Daniels' State

Farm policy, the policies obligated the insurers to cover their insureds' damages

2 Averilllists cases that apply the made whole doctrine and states,"None of these cases discussed recovery of deductibles." Averill,

. Averill mistakenly includes Bordeaux in that list, failing to recognize that it does discuss recovery of deductibles. 10 No. 75727-0-1/11 (dissent)

in excess of the self-insured retention amount. Bordeaux, 145 Wn. App. at 690-

91.

After a mediation, the condominium association in the case involving

Bordeaux Inc. agreed to accept $630,000 in settlement. Bordeaux Inc. satisfied

its obligation to pay $100,000 toward this amount.3 In the meantime, Bordeaux

Inc. obtained third-party settlements from contractors. In a subsequent

declaratory action against their insurer, American Safety Insurance Company,

Bordeaux Inc. and Cameray Inc. sought to establish that they were entitled to the

proceeds of the third-party settlements "to fully reimburse them for the SIR [self-

insured retention]funds they paid for defense and settlement costs before any of

the proceeds were paid to their insurers." Bordeaux, 145 Wn. App. at 693.

American Safety asserted a right of priority recovery from the proceeds of

the third-party settlements. American Safety argued that retention of the risk of

paying up to $100,000 for construction defect claims operated as primary

insurance, making American Safety an excess insurer with a right to subrogation

against the third-party settlement funds. The court rejected this argument and

held that the self-insured retention was actually a form of traditional insurance

involving risk shifting, not risk retention as would be the case if Bordeaux Inc.

were truly a self-insurer. Bordeaux, 145 Wn. App. at 694-97.

3 Bordeaux also paid its insurer a second $200,000 under protest and on appeal won the right to reimbursement, but the issue concerning the second $100,000 is not pertinent to the present case. See Bordeaux, 145 Wn. App. at 697-98. 11 No. 75727-0-1/12 (dissent)

Pertinent to the present case, the court then invoked the "long-standing

rule of Thiringer" favoring full compensation of insureds over the subrogation

rights of insurers. Bordeaux, 145 Wn. App. at 696-97. Applying Thiringer, the

court concluded that the proceeds of the third-party settlements properly

belonged to the insured developers to make them whole for their retention.

A subrogation provision in the policy stated, "[i]f the insured has rights to

recover all or part of any payment we have made under this Coverage Part,

those rights are transferred to us [American Safety]." Bordeaux, 145 Wn. App.

at 691. In a similar case involving a policy with an identical subrogation clause,

the Florida Supreme Court relied on Bordeaux as persuasive authority for

applying the made whole doctrine. Intervest Const. of Jax, Inc. v. Gen. Fid. Ins.

Co.,

,

(2014). The policy required

the insured to exhaust self-insured retention of $1 million before coverage would

kick in. Intervest,

. The court held that the insured had to be

fully compensated for its advance of self-retention funds before any third-party

recovery funds were paid to the insurer, and this common law principle

preserving the insured's right of priority could not be overridden by a transfer of

rights provision in a policy. Intervest,

.

The point here is that self-insured retention provisions are analogous to

deductibles. Bordeaux, 145 Wn. App. at 695. Just as developers who advance

self-insured retention amounts of $100,000(Bordeaux) or $1 million (Intervest)

have a priority right to be made whole once a recovery from a tortfeasor is in

12 No. 75727-0-1/13 (dissent)

hand, an ordinary driver like Daniels has a priority right to be made whole for

advancing her deductible of $500.

Precedent for the idea that collision deductibles are uniquely excluded

from application of the made whole rule is sparse and unconvincing. One

treatise, in a section titled "Subrogation—Pro tanto," does proclaim that "the

made whole doctrine does not apply to deductibles." 2 Alan D. Windt, Insurance

Claims and Disputes § 10:6, at 10-38 to -39 (5th ed. 2007). But the single case

cited, Birch v. Fire Insurance Exchange,

,

, does

not bear the weight of the generalization. On the unusual facts of the case, a

judgment denying full recovery of the insured's deductible was affirmed primarily

on the basis that the insured had already been more than fully compensated. "At

the end of the day, Birch received $361.65 more than his actual damages."

Birch,

. By contrast, allowing Daniels to recover her full

deductible will simply make her whole.

In passing, the Birch court also agreed with the insurer's position that "by

attempting to recover the full $500.00 deductible, Birch is attempting to allocate

the subrogation recovery to an uninsured portion of the loss, which amounts to

double recovery." Birch,

. The court cites no authority for this

proposition. Similarly, the Windt treatise cites no authority for its assertion that if

the insured were to be made whole for its deductible before the insurer is made

whole, the insured would be receiving "an unbargained for, unpaid for, windfall."

Windt, at 10-39. This assertion contradicts the general rule set forth by Windt at

the beginning of the section: "the insurer has no right to reimbursement until the

13 No. 75727-0-1/14 (dissent)

insured's entire loss has been paid. This is true even if the insurer is liable for

only a part of the loss and pays its entire obligation. An insurer cannot recoup

any part of its loss while the insured is still less than whole." Windt, at 10-28.

And according to a brief discussion of deductibles in Appelman, "in jurisdictions

that follow the "made-whole rule, the policyholder is entitled to recover first in

the absence of contract provisions stating otherwise." 5 JEFFREY E. THOMAS &

SUSAN LYONS, NEW APPLEMAN ON INSURANCE LAW LIBRARY EDITION § 49.02[2][b]

(2017).

Averill's assertion that applying the make whole rule would write the

deductible out of the contract is unsupported by authority or reasoned analysis,

yet it is now being cited by other courts as if it were solid law. See,aa,

Fireman's Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc.,

,

, 39(2013); Jones v. Nationwide Prop. & Cas. Ins. Co.,

,

(2011). In TD Banknorth, the court cites Averill in support of the

insurer's argument "that the deductible is not part of the loss to which the make

whole doctrine applies and that to conclude otherwise would essentially convert

the policy into one without a deductible, thereby providing TD Banknorth with an

unbargained for windfall at the expense of Fireman's Fund." TD Banknorth, 72

A.3d at 39. In Jones, the winning argument was that the plaintiffs position

"would render the deductible meaningless and would convert the policy into a

deductible-free policy." Jones

. This is the same mistake made

in Averill: to assume that the insured's priority right in allocation of proceeds from

a third-party settlement exists only to the extent of loss covered by the policy.

14 No. 75727-0-1/15 (dissent)

3. The insured's right to be made whole does not depend on the loss being fully insured

The thread running through cases like Averill, Birch, TD Banknorth, and

Jones is the mistaken idea that the right to be made 100 percent whole from a

subrogation recovery is part of the coverage—something that has to be

bargained for and something that is given up if the insured agrees to a

deductible. Jones, for example, states, "Application of the made whole doctrine

in such a case would force the insurer essentially to cover the risk of the

deductible where the insured has not paid premiums to cover that risk." Jones,

. This court has previously explained the flaw in that reasoning.

"The question of coverage concerns whether an insurer contracted to pay a

particular loss. The question of reimbursement concerns only whether an

insured has been fully compensated for its loss. This inquiry does not depend

upon whether the loss is fully or only partially insured. Neither does it depend

upon whether the insured itself was the cause of some part of the loss." S & K

Motors, Inc. v. Harco Nat'l Ins. Co.,

,

(2009)(footnotes omitted), citing Sherry,

. This makes

sense. Although Daniels' collision damage loss was only partially insured by

State Farm, it was still part of her loss. If there had been no subrogation

recovery, she would properly remain only partially compensated for her loss—

that is, she would remain out of pocket for the $500 deductible because that is

what she agreed to. But as it happened, there was a subrogation recovery.

Requiring State Farm to make sure Daniels is fully compensated from the funds

received from the tortfeasor before keeping any for itself is not the same as

15 No. 75727-0-1/16 (dissent)

requiring State Farm to provide her with coverage for the first $500. The money

is coming from the tortfeasor, not from the premium State Farm collected from

Daniels in exchange for covering the loss less the deductible.

To read the respondent's brief, one would think it was State Farm that had

suffered a loss. Covering losses is what insurance companies do and the

collection of premiums is what enables them to do it. State Farm received a

premium from Daniels to assume the risk that someone else's car would collide

with hers and cause more than $500 worth of damage. In this particular case,

the risk materialized, and State Farm had to make a payout to Daniels for the

cost of repair less the deductible. But this payout was not a loss to State Farm, it

was the cost of doing business. Daniels suffered a loss, while State Farm

incurred a business expense. State Farm was able to establish that a tortfeasor

was liable for 70 percent of Daniels' loss, and as a result, State Farm was able to

obtain for itself an amount equivalent to 70 percent of the payout. Receipt of this

amount by State Farm was over and above the coverage premium it had already

received from Daniels. Just as in the Thirinqer context, it is equitable that the

first dollars received from the tortfeasor be given to Daniels, who is the actual

victim of the tort.

The general purpose of subrogation is to facilitate placement of the

financial consequences of loss on the party primarily responsible in law for such

loss. Mahler,

. State Farm claims that Averill is good policy

because it furthers this purpose "by not penalizing a subrogating insurer that

16 No. 75727-0-1/17 (dissent)

uses its own resources to pursue the third party." State Farm compares itself to

an insured in a personal injury case "who risks their own resources in pursuing

the third party, while his or her insurer sits on the sidelines." State Farm says

that Averill properly recognizes that subrogating insurers should similarly "be

rewarded for their efforts."5

As Mahler points out, the allocation of payment responsibility in

subrogation stems from the moralistic basis of tort law. Mahler,

. So it is not surprising that State Farm uses moralistic terms like "penalizing"

and "rewarded" to justify its position. But State Farm's argument constructs a

false moral and equitable equivalency between the respective positions of insurer

and insured. It is the insured who suffered a loss. The insurer received payment

from the insured to cover the loss. If the loss was caused by a third-party

tortfeasor, and the insurer is able by its own efforts to shift its cost of covering

that loss to the tortfeasor, the insurer has acted in its own interest and is not

entitled to be rewarded for doing so. The obligation to first make the victim whole

does not penalize State Farm for subrogating; it embodies the "socially desirable"

policy of fostering "the adequate indemnification of innocent automobile accident

victims." Thiringer,

.

To the extent an insurer has to make extraordinary efforts to achieve

recovery from the tortfeasor, there might be an equitable argument for cost

sharing, similar to Mahler's requirement that insureds and insurer share the

4 Brief of Respondent at 14 n.3. 5 Brief of Respondent at 14 n.3. 17 No. 75727-0-1/18 (dissent)

expenses necessary to secure recoveries of personal injury protection benefits

from tortfeasors. But this is a different question than whether it is good or bad

policy to make a victim whole. As for cost sharing, the insurance commissioner's

regulation already allows insurers to make a deduction from a deductible

recovery for the expense of collecting it but only if an outside attorney is retained

to collect the recovery and only as a pro rata share of "the allocated loss

adjustment expense." WAC 284-30-393. This suggests that in a typical

subrogation case, the expense of recovery is not extraordinary.

In short, I would follow the reasoning of S & K Motors, Inc. The insured's

right to be made whole from a subrogation recovery is not part of the coverage

she bargained for. It is an equitable obligation imposed by law on subrogating

insurers as a matter of public policy.

4. Deductible cases should not be summarily dismissed

The cases brought by Averill, and now Daniels, are similar to a number of

cases brought elsewhere. Results have varied. For example, at least two

jurisdictions have allowed class actions to go forward. In Florida, the insurer's

practice had been to reimburse insureds for their deductibles on a pro rata basis

in proportion to the amount the insurer recovered on its subrogation claims.

Powers v. Gov't Emps. Ins. Co.,

(S.D. Fla. 1998). A federal

court certified a class action, finding common questions of law and fact as to the

issue whether the insurer "violated the insured-whole rule by failing to fully

reimburse insureds' deductibles when it recovered amounts on its subrogation

claims." Powers,

. Recognizing that the insured-whole rule is

18 No. 75727-0-1/19 (dissent)

not uniformly applied in all the states, the court limited the class to Florida

insureds. Powers,

. The certified class was defined as "Geico

insureds residing in the State of Florida for whom Geico has pursued subrogation

against third parties and whom have not been reimbursed to the limits of their

deductibles prior to recoupment by Geico of amounts paid to the insured."

Powers,

.6 The Powers action concluded with a settlement

establishing a fund of $975,000.7

In Montana, the Supreme Court allowed a class action to go forward to

determine whether the insurer violated the law by taking a subrogation recovery

in a collision coverage case without first reimbursing the insured for her

unrecovered losses, including a deductible. Ferguson v. Safeco Ins. Co. of Am.,

,

,

. In Ferguson, the court

found it well established that an insurer "has a duty to first determine whether the

insured has been made whole before the insurer may collect subrogation."

Ferguson,

. Final approval of a settlement for $4,766,169.72 in

Ferguson was granted after a hearing on May 5, 2015.8

6 Daniels proposed a similar class: "All persons in the State of Washington who had an automobile insurance policy issued by State Farm that included Collision coverage, where State Farm obtained any measure of recovery for payments made under that Collision coverage before its insureds were first fully compensated for the associated property damage loss." 7 Joint Mot. for Prelim. Approval of Proposed Settlement & Approval of Notice to Class Members, No. 97-0010-CIV, Ex. 1 para. Z, at 9(S.D. Fla. June 24, 1999)(Settlement Agreement)[https://perma.cc/EDR4-6EBA]. 8 Ferguson v. Safeco, Case No. DV 04-628B: Overview of the Proposed Settlement, Garden City Group LLC, http://fergusonmontanasettlement.com/ [https://perma.cc/5YGW-2MWS]. 19 No. 75727-0-1/20 (dissent)

On the other hand, a class action complaint similar to Daniels' was

dismissed in Jones,

. As discussed above, the court concluded in

Jones that "the made whole doctrine does not apply in cases involving collision

coverage policies" and "the insured should not get preferential treatment in a

collision coverage case, when he or she accepted the risk of paying the

deductible in the event of an accident." Jones,

.

A different rationale was used to dismiss a putative class action in

Chandler v. State Farm Mutual Automobile Insurance Co.,

(C.D. Cal. 2008), aff'd,

(9th Cir. 2010). There, the plaintiffs auto

insurer paid 80 percent of his car rental expense; the plaintiff paid the remaining

20 percent, or $63.49. Upon obtaining partial reimbursement for the car rental

expense from the third party's insurer, the plaintiff's insurer did not first, or ever,

reimburse the plaintiff for his contribution of $63.49. The court phrased the issue

as "whether an insurer must make the insured whole before pursuing a

subrogation claim against the third-party tortfeasor's insurer where the insured

herself has not yet sued the third-party tortfeasor." Chandler,

. The court was persuaded to answer "no" to this question by Winkelmann

v. Excelsior Insurance Co.,

,

,

(1995).

I believe Jones was wrongly decided for the reason discussed above,

namely that it views the right to be made whole as a feature of coverage. I

believe Winkelmann is unhelpful here because, unlike in the present case, it

involved a situation where the insurer and the insured jointly sued the tortfeasor.

20 No. 75727-0-1/21 (dissent)

The insurer settled its subrogation claim before the insured was ready to settle its

own claim. The court viewed the two claims as "divisible and independent," and

held that the insurer was not required to forego its right to subrogate "while the

insured delays in asserting its claim against the third party, as plaintiffs did

here." Winkelmann,

. Chandler is unconvincing because it

assumes that the insured had to first make its own attempt to recover $63.49 from

the tortfeasor before demanding any of the proceeds of the insurer's

subrogation. Chandler,

. "Plaintiff's lawsuit is unripe

because Plaintiff has not sufficiently established that he cannot recover the

$63.49 from the third-party tortfeasor." Chandler,

.

My larger point is that the cases discussed above illustrate the variation in

the approaches that have been taken to the problem of allocation of a

subrogation recovery—the "troublesome question," as Mahler termed it, of "the

precise enforcement mechanism for the subrogee's right of

reimbursement." Mahler,

. This variation weighs against

deciding these deductible cases on motions to dismiss under CR 12(b)(6), which

tends to produce absolute, hard-line holdings like Averill's declaration that "Averill

has no claim as a matter of law." Averill,

.

Daniels' claim was likewise dismissed in a motion alleging failure to state

a claim. Consequently, the appellate record is short. It does not include the

policy, except for the page that contains the subrogation clause, which was

handed up to the trial court at oral argument. We do not have the cover page,

the definitions page, or any other part of the policy. We do not know the amount

21 No. 75727-0-1/22 (dissent)

of Daniels' original loss or the amount of State Farm's subrogation recovery. We

do not know how State Farm achieved its recovery from the tortfeasor, whether

doing so required extraordinary efforts, or whether Daniels did anything to impair

these efforts. We do not know if State Farm proceeded according to a uniform

practice. We do not know whether State Farm's practice differs from the

practices of other insurers. We do not know if State Farm or other insurers would

handle a large deductible differently than a $500 deductible. These are but a few

of the factors that, if more was known about them, might influence the shaping

and development of the law in this area.

Averill erred in flatly declaring that the made whole doctrine does not ever

apply in the subrogation context and does not ever apply to deductibles. But

given the current state of the law, it might also be error, on a CR 12(b)(6) motion,

to declare the opposite as a matter of law—that the made whole doctrine always

applies in the subrogation context and always applies to deductibles, without

exception. The facts of the Winkelmann case, where the insurer and insured

jointly sued the tortfeasor and there was an issue of delay, furnish an example of

a nuance that might call for a more flexible rule. For this reason, Ferguson and

Powers—decisions that allowed the cases against the insurers to go forward—

are better models than cases like Averill that summarily dismiss. Daniels has

presented a live issue: whether an insurer violates the made whole rule or

breaches a contractual subrogation clause by taking a subrogation recovery in a

collision coverage case without first reimbursing the insured for the deductible. 1

would remand to set the matter for trial. This would allow the parties to conduct

22 No. 75727-0-1/23 (dissent)

discovery, the insurer to assert defenses, and the trial court eventually to decide

the issue against a fully developed factual background.

5. The policy language requiring full compensation gives the insured priority in

allocation

I now come to the majority opinion in this case, which arrives at affirmance

solely by interpreting the subrogation clause in the insurance contract:"Our right

to recover our payments applies only after the insured has been fully

compensated for the bodily injury, property damage, or loss." I agree with

Daniels that this provision incorporates the made whole doctrine, and it obligated

State Farm to reimburse her for her full loss of $500 before keeping the

remainder of the recovery for itself.

Quoting excerpts from Daniels' brief, State Farm and the majority both

misstate what Daniels is arguing. They claim Daniels is taking the untenable and

easily defeated position that State Farm must return the full deductible to her

before asserting a subrogation claim against a third-party tortfeasor or wait until

she recovers it for herself.9 This is a straw man argument. Daniels' position is

that State Farm had to reimburse her for the full deductible after obtaining any

recovery from assertion of a subrogation claim. She states, "Reading the plain

language of the policy as written, Daniels was entitled to get the rest of her loss

taken care of before State Farm could keep any third party money for itself."19

9 Majority at 6; Brief of Respondent at 23-24. 19 Brief of Appellant at 2. 23 No. 75727-0-1/24 (dissent)

According to Daniels, the record "indisputably establishes that State Farm kept

money it received from Geico—money that should have gone to Daniels."11

At oral argument before the trial court, State Farm correctly stated Daniels'

position. State Farm informed the court that after paying out on the property

damage coverage, it filed an arbitration demand against the insurance carriers

for the other two drivers involved in the accident. State Farm included Daniels'

deductible in the claim. One insurer paid 70 percent of the repair costs

representing what it agreed was its insured percentage of fault. State Farm gave

Daniels $350, or 70 percent of her deductible. Daniels sued at this point,

claiming that she should have received 100 percent of her deductible from this

initial recovery. State Farm correctly told the trial court that Daniels was claiming

"that we should have paid her a 100 percent of her deductible out of our recovery

of our subrogation right before we kept any of that subrogation right. That's the

basis of this lawsuit."12 And this is exactly what Daniels claims on appeal.

Because the majority's analysis sets off on the wrong foot, it lands in the

wrong place. It is unfair to Daniels to recast her argument as a claim that she

must receive a refund of the deductible before State Farm is permitted to

exercise its right to subrogation. Daniels straightforwardly defines the issue in

terms of how State Farm allocated the funds it had already received in

subrogation.

11 Reply Brief of Appellant at 1. 12 Report of Proceedings (July 29, 2016) at 7.

24 No. 75727-0-1/25 (dissent)

Under the contract, State Farm's "right to recover" its payments from funds

received in subrogation "applies only after the insured has been fully

compensated" for the loss. Courts construe insurance policies as a whole, giving

them a fair, reasonable, and sensible construction. Insurance policies are

construed liberally, in order to provide coverage whenever possible. Terms that

are defined within a policy should be interpreted in accordance with the policy

definition. An undefined term is interpreted according to its ordinary meaning,

unless there is a legal, technical meaning that both parties clearly intended to

apply. Ambiguities are construed in favor of the insured. S & K Motors, Inc.,

. The majority does the opposite of what these familiar rules

require.

The majority says the only reasonable interpretation of "fully

compensated" in the provision quoted above is that it "does not include the

amount of deductible paid by the insured." Majority at 8. The majority rightly

rejects as unpersuasive State Farm's heavy reliance on Meas v. State Farm Fire

& Casualty Co.,

,

(2005), review denied,

(2006), for the proposition that "fully compensated" means payment

of the collision loss less the deductible.13 Yet the majority fails to otherwise

justify that proposition in terms of the plain language of the policy or in terms of

the rule requiring us to view insurance contracts in the light most favorable to the

insured. Daniels paid $500 toward the repair of the car. That was a loss, and

until she got it back, she was not fully compensated.

13 Majority at 8 n.3; see Brief of Respondent at 18-22. 25 No. 75727-0-1/26 (dissent)

6. The insurance commissioner's regulation allowing reduction for "applicable

comparable fault" does not control

State Farm acknowledges that if "fully compensated" means payment of

the collision loss less the deductible, then State Farm had no contractual

obligation to include the deductible in its subrogation demand or pay Daniels any

fraction of it.14 Yet State Farm did include the deductible in its demand and did

give Daniels 70 percent from the amount recovered. Why? According to State

Farm, its obligation to go even this far comes not from the contract, but solely

from a regulation promulgated by the Office of the Insurance Commissioner.

At the time Averill was decided, the regulation applied the Thiringer

principle by requiring that subrogation recoveries "be allocated first to the insured

for any deductible(s) incurred in the loss." Former WAC 284-30-393; Averill,

& n.5. Averill held that this regulation was "wrong as a matter of

law" because "Thiringer does not require that the insured be made whole for its

deductible when the insurer pursues its subrogation interest." Averill,

.

After Averill Farmers petitioned the commissioner to change the rule to

comply with Averill. Farmers asked that the regulation be amended "so that

insurers may deduct the amount of an insured's comparative fault from

reimbursement for their deductible, when settling a claim."15 The regulation was

14Brief of Respondent at 27. 15 Clerk's Papers at 33 (Office of Ins. Comm'r, Final Cost Benefit Analysis: Chapter 284-30 WAC, Regarding How an Insurer Handles an Insured's Deductible in a Subrogation Demand (June 2011)). 26 No. 75727-0-1/27 (dissent)

changed, and it now provides that any recoveries must "be allocated first to the

insured for any deductible(s) incurred in the loss, less applicable comparable

fault." WAC 284-30-393(emphasis added).

Without Averill, the amendment to the regulation is wrong as a matter of

law. And even with Averill there is no other basis in statute or case law for the

reduction of an insured's recovery of a deductible by "applicable comparable

fault." By statute, the basis for contribution among liable persons is the

"comparative fault" of each person, not comparable fault. RCW 4.22.040(1). But

assuming these two terms mean the same thing, Sherry has already held that full

recovery under the made whole principle is not limited to the nonnegligent.

Sherry,

. "Rather, our opinions suggest insureds are not fully

compensated until they have recovered all of their damages as a result of a

motor vehicle accident." Sherry,

.

And even if the insurance regulation could lawfully authorize reduction for

comparative fault, it does not apply in this case because there is no evidence that

Daniels was at fault. State Farm contends the phrase "applicable comparable

fault" is not limited to the fault of the insured.16 But it is a stretch to imagine that it

means anything else, considering that the amendment was adopted in response

to Farmers' petition that referred specifically to "an insured's comparative fault."

State Farm's discussion of the regulation reinforces the impression that its

analysis is driven by the desire to justify an existing practice of returning the

deductible to its insured after reducing it by the percentage of State Farm's own

16 Brief of Respondent at 32. 27 No. 75727-0-1/28 (dissent)

payment that it was able to recover. In this case, State Farm recovered 70

percent, so State Farm deemed it fair to return only 70 percent of her deductible

to Daniels —even though Daniels was free of fault. State Farm has not

presented a sound theoretical basis for this result. It somewhat resembles

Professor Keeton's Third Rule: "The recovery from the third person is to be

prorated between the insurer and the insured in accordance with the percentage

of the original loss for which the insurer paid the insured under the

policy." Keeton, at 161. But it is not the same, because in the Keeton

formulation, the variable is the percentage of original loss, not the amount of the

recovery from the tortfeasor or the tortfeasor's percentage of comparative

fault. And as Keeton reports, the typical application of the Third Rule is found not

in contested cases, but rather as "the result achieved by compromise settlement

between the insured and insurer, whether or not it is consistent with the legally

enforceable rule of allocation." Keeton, at 163-64. With respect to the legally

enforceable rule of allocation, as previously noted, Washington—like most

jurisdictions—is in the camp of Keeton's Fourth Rule, the made whole rule.

7. Attorney fees should abide the result

Daniels requests an award of attorney fees under the rule of Olympic

Steamship Co. v. Centennial Insurance Co.,

,

(1991).

State Farm contends that if Daniels prevails, Olympic Steamship does not apply

because this case "does not involve a denial of coverage or even a coverage

28 No. 75727-0-1/29 (dissent)

question."17 I agree that the case does not involve a denial of "coverage"; this is

exactly the point I made above when citing S & K Motors, Inc. But the Olympic

Steamship entitlement to attorney fees applies when an insured "is compelled to

assume the burden of legal action to obtain the benefit of its insurance contract."

Olympic Steamship,

. This rule will apply to Daniels if, on

remand, she obtains judgment for breach of contract.

Reversing the order of dismissal and reinstating Daniels' complaint will

mean only that she has the opportunity to proceed with her claims; it does not

conclusively determine that she will prevail. Accordingly, I would hold that her

request for attorney fees will abide the result at trial.

8. Conclusion

The guiding principle of Thiringer is well established, theoretically sound,

simple to understand, and easy to follow—all of the things the law should strive

to be. There is no good reason to push Thirinder aside in cases where a

recovery from a tortfeasor is made by a subrogating insurer, and there is no good

reason to push it aside in cases involving deductibles. The majority errs in

following Averill down what has already become a twisting and murky path. The

proper course of action is to turn back. I would reverse and remand for

17 Brief of Respondent at 34, citing Dayton v. Farmers Ins. Grp.,

,

(1994). 29 No. 75727-0-1/30 (dissent)

reinstatement of Daniels' complaint and for further proceedings not inconsistent

with this opinion.

30