IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION ONE TRINITY UNIVERSAL INSURANCE COMPANY OF KANSAS, Respondent,

v. OHIO CASUALTY INSURANCE COMPANY, Appellant. No. 67832-9-1 ORDER GRANTING MOTION TO ADMIT ADDITIONAL EVIDENCE, DENYING MOTION FOR RECONSIDERATION, AND WITHDRAWING OPINION



### The respondent, Trinity Universal Insurance Company of Kansas, filed a motion to admit additional evidence. The appellant, Ohio Casualty Insurance Company, has 

### filed an opposition to the motion, and Trinity filed a reply. A panel of the court has consideredthe motionpursuantto RAP9.11 and has determined thatthe motion should be granted. 

### The respondent, Trinity Universal Insurance Company of Kansas, filed a motion for reconsideration. The appellant, Ohio Casualty Insurance Company, has filed an


### answer. A panel of the court has considered the motion and has determined that the motion should be denied. The court on its own motion has determined that the published opinion filed March 18, 2013 should bewithdrawn and replaced with a substitute opinion. Now, therefore, it is ORDERED thatthe motion to admitadditional evidence is granted; it isfurther ORDERED thatthe motion for reconsideration is denied, it is further 

### ORDEREDthatthe opinionfiled March 18, 2013 is withdrawn, and it is furtherNo. 67832-9-1/2

ORDERED that a substitute opinion shall be published and printed in the Washington Appellate Reports.

DATED this

WE CONCUR 

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# )j' dayoillM/MAM .,2013.

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# Vfl^v^L.,,

roIN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TRINITY UNIVERSAL INSURANCE COMPANY OF KANSAS, Respondent,

OHIO CASUALTY INSURANCE COMPANY, Appellant. No. 67832-9-1 DIVISION ONE PUBLISHED OPINION

FILED: August 19, 2013 Appelwick, J. — Trinity defended and settled a personal injury claim made 

### against Ohio's insured. Trinity then sued Ohio for subrogation, equitable contribution, 

### and insurer badfaith under the CPA1 and IFCA.2 WhenOhio failed to appear, Trinity obtained a default orderandjudgmentfordefense and indemnificationcosts, as wellas 

### treble damages under the CPA and IFCA. Trinity claims that under the principle of equitable subrogation, it was entitled to assert the insured's CPA and IFCA claims against Ohio, even without express agreement. We reverse the portions of the judgment based upon the CPA and IFCA claims. We affirm the judgment fordefense and indemnification costs. FACTS 

### In September 2007, Philip Riley was injured when he fell off scaffolding at a 

### construction site in Kitsap County. Rileywas employed by a subcontractor, Cascade Construction Company. Riley sued the worksite's general contractor, Millennium



### 1Washington ConsumerProtectionAct, ch. 19.86RCW. 2Insurance FairConductAct, ch. 48.30 RCWNo. 67832-9-1/2 Building Company Inc. Trinity Universal Insurance Company of Kansas insured Cascade, while Ohio Casualty Insurance Company insured Millennium. Millennium tendered defense of the lawsuit to Ohio. Ohio initially accepted tender and appointed an attorney to represent Millennium. But, Ohio then tendered Millennium's defense to Trinity, claiming that Millennium was an additional insured under the policy Trinity issued to Cascade. Though Riley's complaint alleged only Millennium's acts or omissions, Trinity acknowledged itwas conceivable that some act


### or omission by Cascade could have played a role in Riley's injury. Therefore, in 

### January 2009, Trinity accepted tender and took over defense of the lawsuit without a reservation ofrights. 

### In August 2009, Trinity attempted to tender Millennium's defense back to Ohio. Trinity contended that, under the circumstances of complaint, Trinity and Ohio were at least coprimary insurers. Trinity reminded Ohio that, under Washington law, an insurer's duty to defend is triggered if the insurance policy conceivably covers 

### allegations in the complaint.3 Trinity pointed out that the complaint alleged only Millennium's acts or omissions, triggering Ohio's duty to defend. In other words, if Millennium's acts or omissions were found to be the cause ofthe accident, Ohio would be entirely responsiblefordefense and indemnification. 

### But, Ohio refused to accept the retender. Ohio cited an "'other insurance'" 

### provision inMillennium's policy, which stated that Ohio's insurance is primaryexcept if "'any other primary insurance [is] available to you covering liability fordamages arising
3Am. Best Food. Inc. v. Alea London. Ltd.. 168 Wn.2d 398, 404, 229 P.3d 693 (2010).No. 67832-9-1/3

out of the premises or operations.'" Based on this provision, Ohio insisted that its coveragewas excess to Trinity's. In December 2009, Trinity notified Ohio and the Washington State Insurance Commissioner that itplanned to sue unless Ohio agreed to participate in Millennium's defense. Trinityexplained that it would be asserting its equitable contribution rights as Cascade's insurer, as well as the direct, subrogated rights of Millennium. Ohio again
refused. 

### Trinity continued defense and ultimately settled Riley's claims for $225,000 in January 2010. Millennium and Cascade received a full and complete release of all Riley's claims. 

### Trinity served theinsurance commissioneron May 12, 2010,4 with asummons and complaint against Ohio for subrogation, equitable contribution, and insurer bad faith. On May 13, 2010, the commissionerforwarded the summons and complaint by certified mail to Ohio's registered agent for service, Corporation Service Company 

### (CSC). The commissionerreceived a return receipt stamped and dated by CSC. CSC has no record of receiving Trinity'ssummons and complaint. The parties do notdispute 

### that Trinity did not provide notice of the lawsuit to Ohio's claims representative or its outside counsel. 

### Trinityfiled its complaintwith the court on July 7, 2010. Trinity alleged that Ohio improperly relied on its "other insurance" exclusion to deny defense, because Riley's 

### complaint did not specify the cause of the accident. Trinity asserted five causes of


### 4Ohio is aforeign insurer, so service on the insurance commissioner constitutes service on the insurer. RCW48.05.200(1).No. 67832-9-1/4
action against Ohio. First, Trinity argued that by withdrawing from and refusing to contribute to Millennium's defense, Ohio breached its contractual duty to defend Millennium. Second, Trinity claimed that Ohio breached its duty of good faith and fair dealing by unreasonably refusing to defend Millennium, in violation of IFCA. Third, Trinity claimed that Ohio failed to respond to pertinent communications from a claimant within 10 days, as required by WAC 284-30-360(3). Fourth, Trinity argued that the
same conduct constituted per se violations ofthe CPA. Lastly, Trinity claimed itwas entitled to equitable contribution for Ohio's share ofMillennium's defense, because both Trinityand Ohio had obligations to defend. When Ohio failed to appearor answer, Trinitymoved ex partefor a default order 

### andjudgment. Trinityrequested the full costofdefending and indemnifyingMillennium, 

### attorney fees, and treble damages under IFCA and the CPA, totaling $764,271. Trinity provided declarations and other exhibits supporting its request for damages. On July 14, 2010, a court commissioner granted the motion and entered judgment in the full

amount. 

### Trinity waited a year and five days before collecting on the judgment. Trinity admitted that it purposefully waited a year to collect in order to gain a procedural 

### advantage over Ohio. On August 24, 2011, Ohio filed a motion to vacate the default order and set aside the judgment. Ohio argued the default judgment should be overturned, because (1) Ohio was not served; (2) Trinity had no standing to bring the claims; (3)the court commissionerfailed to enterfindings of fact and conclusions of law 

### necessary to support the judgment; (4) Ohio's failure to appear was inadvertent, because itwas unaware ofthe lawsuit; and (5) Ohio could assert prima facie defensesNo. 67832-9-1/5



### to liability and damages. The court denied Ohio's motion to vacate and this appeal
followed. DISCUSSION 

### Ohio makes several arguments on appeal. Ohio argues that the default 

### judgment should be vacated under CR 60(b)(1), because its failure to appearwas due to inadvertence or excusable neglect and it can assert prima facie defenses. Ohio contends that Trinity either waived or is estopped from asserting the one year time 

### limitationfor CR 60(b)(1) motions, becauseTrinity purposefully delayed in collecting the defaultjudgment. 

### Ohioargues that the default order andjudgment are void due to lack of subject 

### matterjurisdiction, because Trinity did not have standing to bring statutory insurer bad faith claimsagainstOhio. Ohio maintains thatTrinity lacked standing toassertthe IFCA and CPA claims, because those claims belong to Millennium and Trinity neverreceived express assignmentfrom Millennium. 

### Ohio also argues that Trinity improperly obtained the default judgment through 

### misrepresentation or misconduct, so the judgment should be vacated under CR 60(b)(4). Ohio asserts that Trinity's alleged damages were uncertain and speculative, so the trial court erred by entering default withoutholding an evidentiary hearing and 

### making findings. Lastly, Ohio argues that the trial court should not have granted Trinity'ssupplemental attorneyfees, becauseTrinityhad no legal right to them. 

### Defaultjudgments are generally disfavored in Washington. Griggs v. Averbeck Realty. Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979). Courts prefer to determine


### cases on their merits rather than by default. Id In reviewing an entry of default, theNo. 67832-9-1/6


### court's principal inquiry should be whether the defaultjudgment isjust and equitable. Id. at 581-82. Adefaultjudgment may be set aside inaccordance with CR 60(b). CR 55(c)(1). Resolution of a motion to vacate a default judgment is within trial court's sound discretion. Hwang v. McMahill, 103 Wn. App. 945, 949, 15 P.3d 172 (2000). As such, we review a trial court's decision on a motion to vacate a defaultjudgment for abuse ofdiscretion. Morin v. Burris. 160Wn.2d 745, 753, 161 P.3d 956 (2007). Atrial court abuses its discretion when it is exercised on untenable grounds or for untenable
reasons. Id On the otherhand, whetherajudgmentis void is a question of lawthatwe reviewde novo. Dobbins v. Mendoza. 88 Wn. App. 862, 871, 947 P.2d 1229 (1997). I. CR 60(b)(1) Mistake. Inadvertence, or Excusable Neglect 

### Grounds for vacating a default judgment under CR 60(b)(1) include mistake, 

### inadvertence, surprise, and excusableneglect. Adefendantmoving tovacate under CR 

### 60(b)(1) must show four factors: (1) itsfailure to timely appear was due to mistake, inadvertence, surprise, or excusable neglect; (2) there is substantial evidence 

### supporting a prima facie defense; (3) it acted with due diligence after notice of the 

### defaultjudgment; and (4) vacating the default judgmentwould notcause the plaintiff substantial hardship. Littlev. King, 160 Wn.2d 696, 703-04, 161 P.3d 345 (2007). 

### A CR 60(b) motion must be brought within one year after the default order or 

### judgment isentered. This one year timelimitisstrictly enforced and the trial court may not extend the deadline. See CR 6(b). Here, the court commissioner entered the 

### default order and judgment against Ohio on July 14, 2010. Ohio filed its motion to vacate on August24, 2011, morethan a yearlater.No. 67832-9-1/7


### Ohio argues that, because Trinity purposefully delayed executing on the judgment, Trinityshould be barred from asserting the CR 60(b) oneyeartime limitation. Trinity acknowledged that itdeliberately waited a year and five days to collect on the 

### judgment to gain a procedural advantage. But, Washington courts do not consider it deceptive or unfair for a plaintiffto wait a year to collect on a default judgment. See, e.g., Friebe v. Supancheck. 98 Wn. App. 260, 264, 267, 992 P.2d 1014 (1999) (refusing 

### to characterize the Friebes' "'legal sleight-of-hand'" in waiting a year and two days to 

### collect on a default judgment "as unfair or deceptive"); Allison v. Boondock's, Sundecker's &Greenthumb's, Inc.. 36 Wn. App. 280, 285-86, 673 P.2d 634 (1983). Ohio nonetheless cites Lvbbert v. Grant County to argue that Trinity either 

### waived its time limitation argumentor should be estopped fromasserting it. 141 Wn.2d 

### 29, 1 P.3d 1124 (2000). But, Lvbbert is not on point here. In that case, the Lybberts 

### attempted to sue Grant County, but mistakenly served process on the county commissioner's administrative assistant. ]d at 32. Despite defective service, the 

### county filed a notice of appearance, jd Thecounty indicated thatit was notwaiving objections to improper service, but for the next nine months, it acted like it was preparing to litigate on the merits. Id For instance, it served interrogatories and requests forproduction on theLybberts. Id TheLybberts asked in interrogatories ifthe countywould berelying on the affirmativedefense ofinsufficientservice ofprocess, jd at 33. The county waited months to respond. ]d When it finally did, the statute of limitations had run on the Lybberts' claim, so they could no longer achieve proper 

### service. ]d at 33-34. The county then requested the case be dismissedfor that reason.
Id.No. 67832-9-1/8
The Lybberts argued that the county either waived or should be equitably estopped from asserting insufficient service ofprocess. ]d at 34-35. The elements of equitable estoppel are: (1) an admission, statement, or act inconsistent with a claim afterwards asserted; (2) action by another in reasonable reliance upon that act, statement, or admission; and (3) injury to the relying partyfrom allowing thefirstpartyto 

### contradictor repudiate the prior act, statement, or admission. Id at 35. The court held 

### that the Lybberts establishedthe first twoelements but failed the third,becausethey did notreasonablyor justifiably rely onthe county's actions. Id at 35-36. Waivercan occur 

### in two ways. ]d at 39. First, it can occur ifthe defendant's assertion of a defense is inconsistentwith previous behavior. ]d Second, ifthe defendant's counsel isdilatory in 

### asserting a defense. ]d The Lvbbert court held that the countywaived itsdefense of insufficient service, because it both acted inconsistently and was dilatory, jd. at 42. 

### Here, unlike the county's action in Lvbbert, Trinity took no inconsistent action. 

## Trinity informed Ohio of its intent to sue unless Ohio joined Millennium's defense.5 When Ohio refused, Trinity brought suit as promised. Trinity soughtdefault when Ohio 

### failed to appear, then attempted to collect a year later. None of this was inconsistent 

### with asserting the one year time bar under CR 60(b). Trinity never masked its time limitation defense byasserting a contrary argument. Moreover,waiting a yearto collect


### 5In a letterTrinitysent toOhiomonths beforefiling suit,Trinitywrote, "Please be awarethatthe purpose of this letter is to give Ohio 20 days to agreeto participate in the defense of Millennium. If Ohio refuses to do so, Trinity will pursue all of its rights 

### against Ohio in court. This will include a claim for defense costs, whatever payment 

### may be made by way ofindemnification (should a settlement or judgmentoccur), treble damages, and coverage related attorney fees permitted under the IFCA and Olympic Steamship." Olympic S.S. Co. v. Centennial Ins. Co., 117 Wn.2d 37, 811 P.2d 673 (1991).No. 67832-9-1/9
is not characterized as unfair or deceptive, so we do not construe itas dilatory. Trinity violated no deadline or court rule in waiting a year to collect. Characterizing such an action as dilatory would encompass a myriad of other strategic decisions attorneys are permitted to make. And, Trinity had no obligation to give Ohio notice of the default judgment, so Ohio could not have reasonably relied on any act or statement by Trinity. See CR 55(a)(3). Rather, itwas Ohio's responsibility to make a CR 60(b)(1) motion within one yearofthe default order. We hold that neither equitable estoppel norwaiver
are applicable here. Trinitywas entitled underWashington law to wait a yearto collect on the default judgment. Therefore, Ohio's CR 60(b)(1) arguments are time barred and cannot provide a proper basis to vacate. Ohio's prima facie defenses are irrelevant, because thetime baris absolute.6

II. CR 60(b)(5) Lack ofSubject Matter Jurisdiction Ohio argues that Trinity lacked standing to bring Millennium's statutory claims under IFCA and the CPA. Lack of standing, Ohio posits, means the trial court lacked


### 6Even ifwe were to consider Ohio'sclaim of inadvertence or excusableneglect, we find it unavailing. Ohio attributes its failure to appear to two possible reasons: (1) the insurance commissioner's service on CSC was faulty or failed, or (2) CSC itself failed to notify Ohio ofthe lawsuit. Thefirstexcuse is unconvincing, becausethe record shows that the insurance commissioner took all statutorily required steps to achieve service on CSC. See RCW 48.05.200 (requiring service on foreign insurer to be on insurance commissioner); 48.02.200(2) (requiring commissioner to send a copy ofthe process by mail or other means reasonably calculated to give notice). And, the commissioner received a return receipt dated and stamped by CSC. The second excuse is similarly unpersuasive. We have repeatedly held that when a company's failure to respond to a properly served summons and complaint was due to a breakdown of internal office procedure, it is not excusable under CR 60(b). TMT Bear Creek Shopping Ctr.. Inc. v. PETCO Animal Supplies, Inc., 140 Wn. App. 191, 212-13, 165P.3d 1271 (2007).No. 67832-9-1/10 subject matterjurisdiction over Trinity's claims, so the default order is void under CR 60(b)(5). A court enters a void order only when itlacks personaljurisdiction or subject matterjurisdiction overa claim. Marlev v. Dep'tofLabor&Indus.. 125 Wn.2d 533, 540, 886 P.2d 189 (1994). We use caution in characterizing an issue as jurisdictional or a judgment as void, because the consequences of a court acting without subject matter jurisdiction "are draconian and absolute." Cole v. Harvevland, LLC, 163 Wn. App. 199, 205, 258 P.3d 70 (2011). Infederal courts, a plaintiffs lack ofstanding deprives the court ofsubject matter 

### jurisdiction, making itimpossible to enter ajudgment on the merits. Fleck &Assocs., Inc. v. City of Phoenix., 471 F.3d 1100, 1102 (9th Cir. 2006). By contrast, the 

### Washington Constitution places few constraints on superior court jurisdiction. See Const, art. IV, § 6 ("The superior court shall also have original jurisdiction in allcases 

### and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court."); see also Ullerv v. Fulleton, 162 Wn. App. 596, 604, 256 P.3d 406, review denied, 173 Wn.2d 1103, 271 P.3d 248 (2011). Accordingly, if a defendant waives the defense that a plaintiff lacks standing, a Washington court can 

### reach the merits. Ullerv, 162 Wn. App. at 604. Therefore, inWashington, a plaintiffs 

### lackofstanding isnotamatterofsubjectmatterjurisdiction.7 Id

7 Ohio cites a footnote from a 2002 Washington Supreme Court opinion that 

### says, "[Sjtanding is ajurisdictional issue that can be raised for the firsttime on appeal." Int'l Ass'n of Firefighters. Local 1789 v. Spokane Airports. 146 Wn.2d 207, 212 n.3, 45 

### P.3d 186, 50 P.3d 618 (2002). This is the type of "'drive-by jurisdictional ruling"' we 

### recently declined to rely on in Cole. 163 Wn. App. at 208 (internal quotation marks omitted) (quoting Arbauohv.Y&H Corp., 546 U.S. 500, 510-11, 126 S. Ct. 1235, 163 L. Ed. 2d 1097(2006)).
10No. 67832-9-1/11 Rather, the critical concept in determining whether a court has subject matter jurisdiction is the type ofcontroversy. Cole, 163 Wn. App. at 209. Washington superior courts have subject matterjurisdiction over tort actions. Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 730, 254 P.3d 818 (2011). Indeed, both IFCA and the CPA allow claimants to bring suit insuperiorcourt. RCW48.30.015(1); RCW 19.86.090. Because Trinity's action against Ohio was well within the superior court's subject matter jurisdiction, all other defects or errors go to something other than subject matter jurisdiction. Cole, 163 Wn. App. at209.

III. Standing To Assert an Insured's Statutory Rights Though the doctrine of standing does not implicate subject matterjurisdiction, it does prohibit a plaintiff from asserting another's legal rights. Walker v. Munro, 124 Wn.2d 402, 419, 879 P.2d 920 (1994). The claims of a plaintiff who lacks standing cannot be resolved on the merits and must fail. Ullerv, 162 Wn. App. at 604-05. Whether a party has standing to sue is a question of law reviewed de novo. Spokane Airports v.RMA, Inc.. 149Wn. App. 930, 939, 206 P.3d 364 (2009). Ohio argues that Trinity lacked standing to bring Millennium's IFCA and CPA claims, because such claims belong to the insured, not the insurance company. Without express assignment, Ohio argues, Trinity remained a third party claimant with
no standing to assert Millennium's statutory claims against Ohio. Trinity claimed a right ofsubrogation and that "assignmentwas automaticvia the policy." Subrogation is an equitable doctrine the essential purpose of which is to provide for a proper allocation ofpaymentresponsibility. Mahlerv. Szucs, 135Wn.2d 398, 411, 957 P.2d 632 (1998). Itseeks to impose ultimate responsibility for a wrong or loss on

11No. 67832-9-1/12


### the party who, in equity and good conscience, ought to bear it. Jd. There are two features to subrogation. ]d at 412. The first is the right to reimbursement. ]d The second is the mechanism for the enforcement of the right. Id. The right to 

### reimbursement may arise byoperation of law,termed legal or equitable subrogation, or 

### by contract, called conventional subrogation. ]d By virtue ofpayments made to or on behalfof an insured, an insurerhas a right ofreimbursementundergeneral subrogation 

### principles. ]d at 413. That reimbursement may be enforced as a type oflien against any recovery the insured secures from a third party, jd Alternatively, the insurer, standing inthe shoes of its insured, may pursue an actioninthe insured's name against 

### the third party to enforce the reimbursement right. |d Trinity asserts a right of subrogation under both, equitable and conventional subrogation. We first address whetherthe CPAand IFCAclaims are subjectto being subrogated. 

### An insured may assign its badfaith claims to a third party. Safeco Ins. Co. of Am. v. Butler, 118 Wn.2d 383, 397, 399, 823 P.2d 499 (1992). An assignee steps into 

### the shoes of the assignor, and has all the rights of the assignor. Mut. ofEnumclawIns. Co. v. USF Ins. Co., 164 Wn.2d 411, 424, 191 P.3d 866 (2008). The assignee's cause 

### of action is then direct, not derivative. Estate ofJordan v. Hartford Accident &Indem. Co., 120 Wn.2d 490, 495, 844 P.2d 403 (1993). But, without assignment, a third party 

### claimant has no right of action against an insurance company for breach of the duty of 

### goodfaith. Tankv. State Farm Fire &Cas. Co.. 105Wn.2d 381, 393, 715 P.2d 1133 (1986). In Tank, the Washington Supreme Court rejected CPA claims brought bythird 

### parties against insurance companies, jd The court found nothing in the CPA's statutory orregulatory language that gavethird party claimants the rightto sue. \±

12No. 67832-9-1/13 Similarly, IFCA provides that "[a]ny first party claimant to a policy of insurance who is unreasonably denied a claim for coverage or payment of benefits by an insurer may bring an action in the superior court of this state to recover the actual damages sustained." RCW 48.30.015(1). The statute defines "first party claimant" as "an individual, corporation, association, partnership, or other legal entity asserting a right to payment as a covered person under an insurance policy or insurance contract." RCW 48.30.015(4). IFCA allows the superior court to award reasonable attorney fees, litigation costs, and unlimited trebling of actual damages. RCW 48.30.015(2), (3). Millennium meets the first partydefinition. IFCA clearly vests a cause of action with first party claimants. RCW 48.30.015(1). That is, individuals and businesses who own an insurance policy may bring suit against their insurer for unreasonably denying a claim of coverage. The 

### purpose of IFCA is to protect individual policy holders from unfair practices by their insurers. S.B. Rep. on Engrossed Substitute S.B. 5726, at 2, 60th Leg., Reg Sess. (Wash. 2007); H.B. Rep. on Engrossed Substitute S.B. 5726, at 1, 60th Leg., Reg Sess. (Wash. 2007). Just like the CPA, nothing in the language of IFCA gives third party claimants the right to sue. And, nowhere does IFCA create an independent right for insurers to bring a claim on their own behalf. We see no reason to conclude that an IFCA claim should be treated differently than a CPA claim with respectto assignability. However, without express assignment, an insurer may not independently assert its insured's IFCA claims. Trinity's conventional subrogation claim does not involve an assignment of rights pursuant to a settlement agreement. Instead, Trinity relies exclusively on the

13No. 67832-9-1/14 subrogation language of its insurance policy. Whether conventional subrogation and assignment are equivalent in all respects is an open question. See Mut. of Enumclaw, 164Wn.2d at424. We do not address thatquestion here. Nor do we address whether public policy reasons may preclude the assignment of IFCA and CPA claims as part of the insuring agreement. We address only whetherthe language ofthe policy here can be fairly read as a matter of law to have granted Trinity an assignment ofthe right to 

### bringthoseclaims.8 Trinity did not include the policy language inthe trial court record. We granted Trinity's motion pursuantto RAP9.11 to supplementthe record withthe language ofthe policy on which itsclaims rely. The policysubrogation language provides: Ifthe insured has rights to recover all or part of any payment we have 

### made under this Coverage Form, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the 

### insured will bring "suit" or transferthose rights to us and help us enforce them. 

### This language does not expressly assign any IFCA and CPA claims of the insured to the insurer. Trinity made no "payments underthis coverage" on any IFCAor CPA claim


### 8The meaning of a contract provision is a mixed question oflaw and fact, because we ascertain the intent ofthe contracting parties by viewing the contract as a 

### whole, the subject matter and objective of the contract, all the circumstances 

### surrounding the making of the contract, the subsequent acts and conductof the parties to the contract, and the reasonableness ofthe interpretations advocated by the parties. Berg v. Hudesman, 115 Wn.2d 657, 666-67, 801 P.2d 222 (1990). Where the facts are 

### undisputed, such as where the parties agree that the contract language controls and there is no extrinsic evidence to be presented, courts may decide the issue as a matter of law. Mut. of Enumclaw, 164Wn.2d at424 n.9. Here, Trinity relies exclusively on the 

### policylanguage to sustain conventional subrogation as to the IFCA and CPA claims. Ohio was not a party to the insurance contract. Millennium, whose rights are being asserted byTrinity, was not a purchaserof the policy,Cascadewas. Millenniumwas an additional insured under Trinity's policy by virtue of the Millennium-Cascade contract. We address the meaning ofthe contracthere as a matterof law.

14No. 67832-9-1/15
in settling with Riley. Trinity paid a personal injury claim under its liability coverage. Trinity recovered a judgment on those losses from Ohio based on subrogation ofthat claim and equitable apportionment, which we affirm in this opinion. Nothing remains to be reimbursed. Moreover, Millennium had no "right to recover" from Ohio. Millennium
was fullydefended and fullycovered by Trinity as to Riley's claims. Ithad no losses to

recover under IFCA and CPA claims. See Ledcor Indus.. Inc. v. Mut. of Enumclaw Ins. Co., 150 Wn. App. 1, 11, 206 P.3d 1255 (2009). The policy language did not assign to Trinitythe right to assert IFCAand CPA claims Millennium might have had. Therefore, Trinity lacked standing to assert IFCA or CPA claims under conventional subrogation againstOhio. 

### Trinityalso argues that itowned Millennium's IFCAand CPA claims under the 

### principle of equitable subrogation. Trinity contends that by virtue of completely defending and indemnifyingMillennium, Millennium's claims against Ohio automatically transferred to Trinity by operation of law. As noted above, both the CPA claim and IFCA claim belong to the insured, not the insurer. They may be assigned, but they are notavailableto the insurerunderequitable subrogation. 

### Trinity nevertheless citestwo cases to arguethatequitable subrogation entitled it
to assert Millennium's IFCA and CPA claims. First State Ins. Co. v. Kemper Nat. Ins. 

### Co., 94 Wn. App. 602, 971 P.2d 953 (1999); Truck Ins. Exch. ofFarmers Ins. Grp. v. Century Indem. Co., 76 Wn. App. 527, 529, 887 P.2d 455 (1995). But, we find those


### cases inapposite here, because they deal with excess insurers, a unique class of
insurers.

15No. 67832-9-1/16
The First State court, relying on Truck, held that an excess insurer may assert CPA claims thatits insured could have brought againstthe primary insurer, because the
excess insurer is equitably subrogated to the rights of its insured. 94 Wn. App. at 609. When there is no excess insurer, the insured is his own excess insurer, jd. at 611. The 

### primary insurer owes him a duty of good faith to protect him from excessjudgmentand personal liability. ]d But, ifthe insured purchases excess insurance, he in effect substitutes an excess insurer for himself. ]d Therefore, the excess insurer steps into the shoes of the insured. See id at 610. It then follows that the excess insurer
assumes the rights and obligations ofthe insured, jd 

### Therefore, the duty a primary insurer owes to an excess insurer is identical to thatowed the insured. ]d at 610-11. So, First State, as an excess insurer, could bring 

### a CPA claim againstthe primary insurerforbadly mishandling litigation, which resulted in FirstState having to pay $1 million out of itsexcess policy. ]d at 609. Allowing First State to bring its insured's CPA claims promoted public policy by encouraging primary insurers to settlewithin theirpolicy limits. Id at 611. 

### Trinity is not an excess insurer. Rather, Trinity alleged that it and Ohio were 

### coprimary insurers. Trinity attempts to stretch the limited application of FirstState too far by arguing that a coprimary insurer should be treated like an excess insurer and be automatically equitably subrogated to the rights of its insured. While coprimary insurers owe their insured a duty of good faith, Tank, 105 Wn.2d at 386, First State does not 

### hold that they owe one anotherthat same duty. The policyconcerns of FirstState are also not at playbetween coprimary insurers. While bothTrinity and Ohio may have had

16No. 67832-9-1/17 a duty to Millennium to defend and seek a reasonable settlement, they did not owe one anotherthatduty. 

### And, perhaps most importantly, automatic equitable subrogation of primary insurers to the insureds' statutory rights would take from the insured the statutory 

### damages to which they are entitled any time the insurer defends and indemnifies its insured. Wefind no basis inthe statutory language ofthe CPA and IFCA orcase law to 

### justify doing so. Equitable subrogation entitles a paying primary insurer to seek reimbursement for losses paid. It does not allow the insurer to assert an insured's 

### statutory rights withoutexpress agreement. Nor does it authorize the insurer to retain the proceeds of those claims. Trinity has not shown any express agreement by Millennium—whetherby assignment or conventional subrogation—to transferto Trinity 

### the right to bring its statutory claims against Ohio, let alone to retain the proceeds of such claims. Trinity remains athird party,without standing to assertMillennium's IFCA and CPA claims against Ohio. We therefore reverse the trial court's treble damages award under IFCAand the 

### CPA. However, by virtue of completely defending and indemnifying Millennium, Trinity was equitably subrogated to Millennium with respect to losses it actually paid. Accordingly, we affirm the trial court's award for costs Trinity paid in defending and indemnifying Millennium. IV. CR 60(b)(4) Misrepresentation in Obtaining Default 

### A defaultjudgmentmay be vacated ifitresultedfrom"misrepresentation, or other misconduct of an adverse party." CR 60(b)(4). Ohio argues thatthe default orderand 

### judgment should be vacated, because it resultedfrom Trinity's misrepresentation and/or

17No. 67832-9-1/18
misconduct. Trinity's alleged misrepresentation comes from one line in its ex parte motion fordefault: "Trinity, as assignee of Millennium,engaged its attorneys in this case
on a contingentfee basis." (Emphasis added.) Ohio argues that Trinity did not show 

### any evidence of Millennium's assignment of its CPA and IFCA claims and did not supportthis assertion anywhere in its motion for default, so itconstitutes an affirmative 

### misrepresentation. We have reversed the portion ofthejudgmentbased upon the CPA and IFCAclaims, making this issue moot. Trinity'sstatus as an assignee is not material to its status as an equitable subrogee. Therefore, we decline to vacate the balance of thejudgmenton CR 60(b)(4) grounds.

V. Hearing and Findings 

### Ohio argues that Trinity's alleged damages were uncertain, so the trial court 

### erred by entering a default judgmentwithout holding a hearing and making findings. Ohio points out thatTrinityallegeddamages in its complaint"'in an amount to be proven at trial.'" As a result, Ohio argues, Trinity failed to allege sum certain damages, so the court should have conducted an evidentiary hearing and was required to makefindings. 

### We agree that the lack ofexpress findings would be troubling in regards to the trial court's award for treble damages under IFCA and the CPA. But, again, we have reversed that award. 

### We are notsimilarlytroubled by the lack of a hearing and express findingsasfar
as the award for Trinity's defense and indemnification costs. Ohio is correct that a 

### default judgment must be limited to the amount demanded in the complaint. CR 54(c) ("A judgment by default shall not be different in kind from or exceed in amount that 

### prayed forin the demand forjudgment."). Therefore, ifa complaint alleges damages in

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an amount to be proven at trial, damages are uncertain and require findings. CR 55(b)(2). However, CR 55(b)(2) specifies that a court "mayconduct such hearings as
are deemed necessary." (Emphasis added.) Even where damages are uncertain, the trial court has considerable discretion in determining the extent ofproofneeded. Miller
v. Patterson, 45 Wn. App. 450, 460, 725 P.2d 1016 (1986). Presentation of live testimony is not required. See id Rather, the court's judgment may be based on affidavits ordeclarations, jd Moreover, the Washington Supreme Court has held that even where a default judgment does not contain express findings and conclusions, implied findings may be sufficient. Little, 160 Wn.2d at 706-07. In Little, the judge did not make express findings and conclusions in herdefaultjudgment. 160Wn.2d at 706. But, she listed all the materials she considered and entered a defaultjudgmentinspecific amounts. ]d at 707. The Washington Supreme Court agreed with the Court of Appeals that "'[t]his necessarily implies a finding of fact that Little suffered damages in the given amounts and the conclusion of law that Littlewas entitled to recoverthose sums from King.'" Id (alteration in original). Such implied findings of fact may be sufficient, because CR 55(b)(2) does not define what constitutes adequate findings offact and conclusions of law. ]dat706. Ohio had reasonable notice that it could be liable for the entire amount of defense and indemnification costs. In the December 2009 letter to Ohio, Trinity declared its intent to recover defense and indemnification costs ifOhio did not accept retender of defense. Trinity argued that Ohio may be entirely responsible for indemnification and defense of Millennium, depending on whether Millennium and/or

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Cascade were determined to be atfault. Trinity did not allege sum certain damages in its complaint, butfrom a fair reading ofTrinity's complaint, it is apparentthat Ohio might be liable for the entire amount of settlement and defense costs. Trinity repeatedly discusses Ohio's duty to defend its insured and responsibility for indemnification. Therefore, the amounts Trinity requested in its complaintand later in its ex parte motion do notdiffer substantially. In its ex parte motion for default, Trinity listed the entire out-of-pocket amount it paid to defend and indemnify Millennium. And, Trinity explained that these expenses should have been borne by Ohio alone, based on Ohio's policy with Millennium. Trinity attached a declaration and detailed payment history verifying these costs. The trial court was entitled to base its judgment on this evidence. See Miller, 45 Wn. App. at 460. Itdid not need to conduct a separate hearing with live testimony. See id The court's order of default and judgment explained that its decision was based on the provided declarations, record, and pleadings. Like in Little, this necessarily implies a finding of fact thatTrinitysuffered the damages described and the conclusion of lawthat Trinity was entitled to recover those sums from Ohio. The trial court acted within its discretion in relying on the evidence Trinity provided. Because the trial court made implied findings and did not need to hold an evidentiary hearing, we decline to reverse Trinity's award fordefense and indemnification costs. VI. Attorney Fees Ohio asks this courtto vacate the trial court's award ofattorneyfees inthis action to Trinity. Below, the trial court cited three legal grounds forthe $32,400 attorney fees award: the CPA, IFCA, and the Olympic Steamship doctrine. Olympic S.S. Co. v.

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Centennial Ins. Co.. 117 Wn.2d 37, 52, 811 P.2d 673 (1991). Conversely, Trinity requests attorney fees on appeal, pursuant to RAP 18.1, for the same reasons itwas awarded fees below. Trinitydoes not have standing to assert Millennium's IFCAand CPA claims. The attorney fee award cannotbe sustained on these bases. Nordoes Olympic Steamship provide a basisforthe award offees on thesefacts. Underthe Olympic Steamship doctrine, courts may award fees to an insured who successfully sues an insurer to obtain insurance coverage. 117 Wn.2d at 52. 

### Assignees ofthe insured may also recoverfees if they are compelled to sue an insurer to secure coverage. McRorv v. N. Ins. Co. ofN.Y., 138 Wn.2d 550, 556, 980 P.2d 736 (1999). Similarly,the Mid-Continent court allowed attorney fees when the insurerwas 

### contractually subrogated to the rights of the insured. Order Granting Def. Titan's Mot. for Att'yFees, Mid-ContinentCas. Co. v. Titan Constr. Corp., No. C05-1240MJP, 2009 WL 2391527, at *2, 2009 U.S. Dist. LEXIS 72424, at *5 (W.D. Wash. Aug. 3, 2009). There, the insured remained the real party ininterest. Id Incontrast, in Safeco, we denied an award of Olympic Steamship fees when the insurerasserted its own equitable contributions rights. Safeco. Ins. Co. ofIII, v. Country 

### Mut. Ins. Co., 165 Wn. App. 1, 8-9, 267 P.3d 540 (2011). Here, Trinity'sclaims against Ohio were not based on an assignment or contractual subrogation of rights by Millennium. See id at 8. Having failed to produce evidence of assignment or 

### contractual right, Trinity lacked standing to assert those claims of the insured. Rather, Trinity's claim arosefrom its own equitable subrogation rights as the paying insurer, not

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the rights of the insured. Trinity is not entitled to attorney fees under Olympic Steamship,. For these reasons, the attorney fees awarded below are reversed, and attorney fees on appeal are denied. We affirm in part, reverse in part, and remand to the trial court to correct the judgment.

WE CONCUR: 

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