IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON
CHERYL STREMKE, a single person; and TYE PANZONE and JAMI PANZONE, husband and wife; and UNITRIN, INC., dba UNITRIN AUTO AND HOME INSURANCE COMPANY, dba KEMPER, a foreign corporation, Respondents,

FISHER & PAYKEL APPLIANCES, INC., a California corporation, Appellant, and LOWE'S HIW, INC., a Washington Corporation, Defendant. No. 71424-4-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: September 14. 2015 

### Spearman, C.J. — Cheryl Stremke, her family, and her subrogating 

### insurer, Unitrin Auto and Home Insurance Company (Unitrin),1 brought this
consumerprotection and product liability action to recover losses sustained when 

### a dryermanufactured by Fisher & Paykel Appliances, Inc. (F&P) caughtfire and damaged Stremke's home and property therein. The jury found inStremke's favor and the courtenteredjudgment on herbehalfand against F&P. F&P

1For ease ofreference, the respondents are referred to as "Stremke," exceptwhere necessary.No. 71424-4-1/2 

### challenges thejudgment, arguing thatthe trialcourterred when it (1) refused 

### F&P's requestfor a jury instruction on spoliation; (2) excluded the testimony of F&P's expertwitness on damages; (3) incorrectly instructed thejury on the
measure ofdamages; and (4) denied its motion for directed verdict. K&Palso 

### argues thatthe award ofattorneyfees and costs was improper. We find no error and affirm. FACTS 

### On the evening of July 1, 2008, Cheryl Stremke, her son, Tye Panzone, 

### daughter-in-law Jami Panzone, and Tye's2 and Jami's children were preparing for bed at their home in Auburn, Washington. Around midnight, Jami smelled smoke inside the home. After investigating, she discovered smoke coming fromthe dryer inthe family's laundry room. Jami called her husband and her mother-in

### law for help. They found her in the laundry room, where the dryer was flaming and smoking badly. The family made an unsuccessful attemptto extinguish the 

### fire with water, but the flames emerging from behind the dryerbegan to engulf the room. As thefire grew out of control, the family called 911 and fled from the home. 

### The City of Kent Fire Department responded to the 911 call and 

### extinguished the blaze. Once it was safe to enterthe house, an investigatorwith the firedepartment, Fritz Wininger, set aboutdetermining the cause of the fire. 

### Wininger interviewed Stremke and herfamily and conducted a walk-through of

2The Panzones are referred to by their firstnames forclarity.No. 71424-4-1/3 the house, during which he observed burn patterns and otherevidence related to the source and cause ofthe fire. Based on his investigation, Wininger concluded thatthe fire had originated inthe laundry room inside the dryer. He eliminated all other possible sources, including the dryer's ventilation system and other components in the wall behind the dryer, the dryer's power cord, the electrical outlet nearthe dryer, clothing inside the dryerdrum, and cigarettes located in the laundry room. The next day, Stremke notified her insurer, Unitrin. Unitrin sent its fire investigator, Thomas Miller, to the residence to determine the cause ofthe fire. Based on his investigation, Milleralso concluded thatthe fire started inside the dryer and, like Wininger, he ruled out other possible sources for the fire. Miller arranged the transportation ofthe dryerfrom Stremke's house to Unitrin's Whidbey Island storage facility for testing. But, because he did not view any other items from the laundry room as relevantto the investigation, he made no effort to preserve things such as the dryer's ventilation system or electrical components. 

### Following Miller's investigation, Unitrinreleased the home back to Stremke, who arranged for repairs to the house, which commenced five to six weeks later. The fire and smoke damage to the home and the resulting restoration work were extensive. Parts ofthe house were gutted to the bare framing and many of Stremke's personal belongings were lost in the fire. Stremke submitted a claim to Unitrin, which paid $538,571.55 indwelling repair and personal property costs. Stremke and Unitrin, as the subrogating insurer, broughtthis product liability and consumer protection action against F&P, the manufacturer oftheNo. 71424-4-1/4 

### dryer, to recoverthe $538,071.55 paid to Stremke by Unitrin, additional damages claimed by Stremke that her insurance company declined to pay, and claims for treble damages and attorney fees underWashington Consumer Protection Act 

### (CPA). Atthe end of trial, thejury determined that a defect in F&P's dryer proximately caused Stremke's damages. Itawarded $537,612 on the subrogation (product liability)claim and $537,612 on the CPA claim, but concluded that the entire CPA award was duplicative ofthe subrogation award. The trial court 

### declined to award treble damages underthe CPA, but awarded Stremke attorney fees and costs inthe amount of$627,982.62. F&P appeals. DISCUSSION A. Spoliation 

### F&Pcontends the trialcourterred when itrefused to instructthejury 

### regarding the alleged spoliation ofevidence byStremke.3 We reviewthe trial court's decision regarding spoliation for abuse ofdiscretion. Henderson v. Tyrrell, 80Wn. App. 592, 604, 910 P.2d 522 (1996). A trial court abuses its discretion
3Specifically, F&Passigns error to the trialcourt's refusal to give the following instruction: You have heard testimony regarding the destruction of or failure to preserve evidence. Ifyou find that Fisher &Paykel has shown that a plaintiffs have destroyed evidence which was intheircontrol, and they have not provided a satisfactory explanation for doing so, the only inference you may draw is that the evidence, ifproduced, would have been unfavorable to them. Indetermining whether a party's explanation fordestroying or failing to produce evidence is satisfactory, you may consider the relevance ofthe missing evidence to the issues in the case, whetherthe loss or destruction ofthe evidence has resulted inan advantage for one party over another, and whether the party not controlling the evidence was afforded an adequate opportunity to examine the evidence. You may also considerwhetherthe party destroying or failing to produce the evidence acted inconscious disregard ofthe importance ofthe evidence, or whether there is some innocent explanation for the destruction. Brief ofAppellant at 22-23.No. 71424-4-1/5 

### 80 Wn. App. 592, 604, 910 P.2d 522 (1996). A trial court abuses itsdiscretion when its decision is manifestly unreasonable or based on untenable grounds or
reasons. Will v. Frontier Contractors. Inc.. 121 Wn. App. 119, 128, 89 P.3d 242 

### (2004). Indeciding whetherto provide a remedy for spoliation, a trial court's discretion must be guided by consideration of (1) the potential importance or relevance ofthe missing evidence and (2) the culpability or fault ofthe adverse party. Taval v. Walmart Stores, Inc., 176Wn. App. 122, 135, 307 P.3d 811 (2013); Homeworks Const.. Inc. v. Wells, 133 Wn. App. 892, 899, 138 P.3d 654 (2006).

### "Inweighing the importance ofthe evidence, we considerwhetherthe adverse party was given an adequate opportunity to examine it." Tavai. 176Wn. App. at 135 (citing Henderson 80Wn. App. at 605). Evidence is relevant if it is probative of a material fact inthe litigation. ER 401. Here, the missing evidence (i.e., the dryer's ventilation system and related parts, as well as other items from the laundry room) was undisputedly probative ofthe central issue inthe case— the cause ofthe fire—even if only to rule out possible alternative causes. And, since F&P had no opportunity to examine this evidence before itwas destroyed, 

### itwas, at least arguably, important underthe standard inTavai. F&P's argumentthat itwas entitled to a spoliation instruction still fails, however, because itcannot show that Stremke was culpable in the destruction of the evidence at issue. Indetermining a party's culpability or fault inthe destruction ofevidence, "[w]e examine whetherthe party acted in bad faith orNo. 71424-4-1/6 

### conscious disregard ofthe importance ofthe evidence orwhetherthere was
some innocentexplanation forthe destruction." Tavai. 176 Wn. App. at 135. In this case, approximately three weeks passed between the fireand Stremke's notice to F&P thatthe suspected cause ofthe fire was a dryer it manufactured. F&P received the notice no laterthan August 5, 2008 and, that


### same day, made arrangements to inspectthe dryer, which had been moved to 

### Unitrin's storage facility. But F&P did not inquire about any otherevidencefrom the home, askthat any items related to otherpossible sources ofthe fire be preserved, or requestthat repairs to the home be postponed pending an 

### independentevaluation. Thus, while F&P had the opportunity to advise Stremke 

### ofthe potential importance ofthe dryer's ventilation system and othermissing evidence before itwas destroyed or otherwise take steps to preserve the evidence, itfailed to do so. 

### Inaddition, F&P presented no evidence that Stremke had reason to know ofthe importance or relevance ofthe evidence. Herdecision to not preserve 

### additional items from the laundry room, followed determinations by two fire investigators thatthe fire began inthe dryer and thatthe other items were irrelevantto the investigation. In light of this information, as well as F&P's own 

### inaction and the passage of time, Stremke had a reasonable basis to conclude that any additional evidence inthe laundry room was irrelevantto the cause of the fire and any future litigation. On these facts, F&P fails to show that Stremke acted in bad faith or in conscious disregard ofthe importance ofthe evidence when she failed to preserve it.No. 71424-4-1/7 Anotherfactor related to the culpability of a party who destroys evidence is whetherthe party violated a duty to preserve the evidence. Tavai. 176 Wn. App.
at 135. F&P asserts that even ifStremke did not act in bad faith when she failed to preserve the missing evidence, she is nevertheless culpable because ofan independent legal duty to preserve evidence, apartfrom the general duty to avoid spoliation. But F&P offers no authority for the proposition that such a duty 

### existed.4 InWashington, potential litigants have no general duty to preserve evidence. See Homeworks Construction, 133 Wn. App. at 901. Accordingly, we reject F&P's argument on this issue. Because F&P failed to establish that Stremke was culpable inthe destruction ofthe missing evidence, itwas not entitled to a spoliation instruction. The trial court did not err in refusing to give one. B. Consumer Protection Claim At the conclusion ofStremke's case-in-chief, F&P moved for a directed verdict on her CPA claim. F&P assigns errorto the trial court's denial ofthis motion. We review a trial court's decision to deny a motion for a directed verdict infavor ofallowing a claim to be considered by a jury de novo. Hizev v. Carpenter. 119 Wn.2d 251, 271-72, 830 P.2d 646 (1992). "Adirected verdict is
In its brief, F&P argued: Unitrin assumed an independent duty to preserve the fire scene when it sent an investigatorto the fire scene one day after the fire to determine the cause and origin ofthe fire. Inaddition, that on-the-scene investigator had an independentduty underthe applicable 'NFPA 921' standards of professional fire investigation to preserve the evidence at the fire scene. Brief ofAppellant at 21. Although the NFPA 921 published by the National Fire Protection Association may be the "'authoritative treatise on fire investigation,'" as the parties assert, F&P offers no authority for the proposition that a standard set forth in this guide is tantamountto a legally enforceable duty. Brief ofAppellant at 21 And, F&P conceded the point in oral argument.No. 71424-4-1/8 appropriate if, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdictfor the nonmoving party." Chanev v. Providence Health Care. 176 Wn.2d 727, 732, 295 P.3d 728 (2013) (citations omitted). Stremke's consumerprotection claim is governed by the CPA, which prohibits "'[ujnfair methods ofcompetition and unfair or deceptive acts or practices inthe conduct ofany trade or commerce . . . ." RCW 19.86.020. To prevail in an action underthe CPA, a plaintiffmust prove five elements: (1) the conduct is unfair or deceptive; (2) occurs intrade orcommerce; (3) affects the public interest; (4) causes injury and (5) to plaintiffs business or property. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co.. 105 Wn.2d 778, 780, 719 P.2d 531 (1986). F&P contends itwas entitled to a directed verdict because Stremke provided insufficient evidence ofthe fourth element— causation—to support a favorablejury verdict on their consumer protection claim. We disagree. Stremke presented several internal memos from F&P that demonstrated the corporation's awareness that its dryers experienced malfunctioning thermostats and heating elements, which could lead to dangerously high levels of 

### heatwithinthe dryers. She also presented evidence thatthe fire originated inside
a dryer manufactured by F&P as a result offailed thermostats and heating elements, which overheated, igniting dryer lint. Thus, Stremke's theory ofthe
case was that the fire and related property damage were the proximate result of design defects known to F&P at the time ofthe fire. Viewed inthe light most favorable to Stremke, as is proper on a motion for directed verdict, the evidence

8No. 71424-4-1/9 is sufficientto supportthis theory. Thus, the trial court properly refused to grant F&P's motion for directed verdict on the consumer protection claim. C. Personal Property Damages 

### F&P challenges Stremke's personal property damages award on two grounds. First, itargues the trial court abused its discretion when itexcluded 

### expert Michael Larkin's testimony on personal property damages. We disagree. The trial court conducted an ER 104 hearing to determine whether Larkin 

### had admissible experttestimony regarding the value ofStremke's destroyed personal and real property. Atthe hearing, Larkin testified that he had assessed 

### the value ofStremke's destroyed personal property based on photographs ofthe
scene and the several inventories that had been performed by Shawn Slings, the 

### appraisal company employee who inventoried Stremke's personal property after 

### the fire. Larkinadmitted that he had notdone a line by line analysis of the inventories to assess the value ofeach item listed therein. Nor had he conducted 

### market research or otherwise investigated the prices listed inthe inventories. Instead, Larkin's opinion on the value ofthe damaged personal property
was based entirely on changes between two versions ofSlings' inventory and "a lack ofdocumentation to supportthe change between the two documents.
.. ." Verbatim Report Proceeding (VRP) at 955-56. He noted that comparison ofthe 

### inventories indicated price discrepancies, with later inventories showing additional line items and price increases when compared to earlierversions. He also testified that, based on his review ofthese documents, he could notfind justification for the discrepancies. And he testified that some ofthe items listed asNo. 71424-4-1/10 personal property on the inventories, particularly kitchen appliances, were also listed inthe building repairestimate, which was one basis for the damages asserted in Stremke's real property damage claim. Based on these alleged accounting issues, Larkin testified thatthe personal property value claimed inthe 

### inventories was unreasonable. In his opinion, Stremke sustained only 

### approximately $40,000 inproperty damage. Based on this offerof proof, the trial court properly concluded that Larkin's testimony was improper opinion evidence. First, as the court noted, there was no foundation for Larkin's opinion on the value ofStremke's destroyed property. Larkin did not testify that his conclusion was based on experience, knowledge of 

### the market, research, or any empirical method. Instead, he simply concluded that "because there's more than one [inventory and more than one estimate for repairs to the home], itcan't be reasonable." VRP at 962. Second, as the trial court correctly observed, the proffered testimony was not so much an opinion on 

### the value ofthe lost property as an opinion "as to credibility [Stremke's evidence] which is a jury['s]job to do." VRP at 962. The trial court did not errwhen it 

### excluded the testimony.5 Next, F&P argues that Stremke's personal property claim should be dismissed as a matter of law because she failed to present sufficient evidence to permitthejury to determine the value ofthe destroyed property.
5F&P's contention that Larkin's testimony was excluded because of an order in limine prohibiting the parties from referencing evidence ofinsurance coverage or payments made thereunder lacks merit. As discussed above, the trial courtexpressly excluded Larkin's testimony based on its determination that Larkin's testimony lacked foundation, was unhelpful to thejury, and was irrelevant.
10No. 71424-4-1/11 InWashington, damages are recoverable if a plaintiffcan establish both the "fact ofloss" and the measure ofdamages by competent evidence. Washington State Physicians Ins. Exch. &Ass'n v. Fisons Corp.. 122 Wn.2d 299, 331, 858 P.2d 1054 (1993); Lewis River Golf. Inc. v. P.M. Scott &Sons. 120 Wn.2d 712, 717-18, 845 P.2d 987 (1993). Our Supreme Court has recognized that: [0]nce the [plaintiff] establishes the fact of loss with certainty (by a preponderance ofthe evidence), uncertainty regarding the amount of loss will not prevent recovery. Thus, a [plaintiff]will not be required to prove an exact amount ofdamages, and recovery will not be denied because damages are difficult to ascertain.
.. . Generally, whetherthe [plaintiff] has proved his loss with sufficient certainty is a question offact. Lewis River Golf, Inc.. 120Wn.2d at 717-18 (quoting Anderson, Incidental and Conseguential Damages. 7 J.L. &Com. 327, 395-96 (1987). Incases involving destroyed personal property, once the fact of loss is established, the measure of damages to the plaintiff is the value ofthe property atthe time of loss. See, Herberg v. Swartz. 89 Wn.2d 916, 930, 578 P.2d 17 (1978); McCurdv v. Union Pac. R.R. Co.. 68 Wn.2d 457, 413 P.2d 617 (1966). The determination ofthe amount ofdamages is primarily and peculiarly within the province ofthejury and under proper instructions, appellate courts are reluctantto interfere with the conclusion of a jury when fairly made. Fisons Corp.. 122 Wn. 2d at 329-30. Here, thejury was properly instructed that in determining the amount ofany loss attributable to the destroyed property itshould take "into consideration all the circumstances and conditions," including "the cost ofthe items, the extent oftheir use, whetherworn or out ofdate, and their condition at

11No. 71424-4-1/12 

### the time of the fire, to determine what they were fairly worth."6 Clerk's Papers (CP) at 2392-93; see also Herberg. 89 Wn.2d at 931. F&P contends, however, that because Stremke's evidence failed to specifically address each ofthe factors set out inthe court's instruction, the verdict is fatally flawed and should be vacated. We disagree. 

### Although Shawn Slings did not expressly testify as to the value ofthe destroyed property, his testimony, inconjunction with the inventory he prepared thatwas admitted into evidence, included a description ofeach item, its age, and its location within the Stremke home. The inventory also noted the stores where many ofthe items had been purchased. Stremke's testimony also bore on the value ofthe personal items destroyed inthe fire. She testified that she had worked with Slings to compile the inventory and that itwas a "fairlyaccurate" list ofthe clothing, toiletries, antiques, and other personal effects destroyed inthe fire. She testified to the value of 

### several "Highwaymen" paintings that had been lost inthe fire. She also testified thatthe items listed inthe inventory had been in good repair prior to the fire, aside from normal wear and tear. It is true, as F&P points out, that Stremke could not recall the purchase prices ofthe listed items, but she explained to thejury that although she kept receipts for a number ofthe items, which would have

6"When goods of this character are destroyed, a proper method of arriving at their value at the time of loss is to take into consideration the cost ofthe articles, the extent of their use, whether worn or out of date, their condition atthe time, etc., and for them to determine whatthey were fairly worth." Herberq. 89 Wn.2d at 931 (quoting Kimball v. Betts, 99 Wash. 348, 352, 169 P. 849(1918)). 12No. 71424-4-1/13 

### established the dates ofpurchase and amounts paid, they were also destroyed in the fire.7 

### Inaddition to this testimonial evidence, thejury considered dozens of photographs ofthe personal property destroyed inthe fire. Although some ofthe 

### items depicted had been reduced to ash and rubble, inmost ofthe photographs, the items were stillrecognizable, despite smoke and/or heat damage. When the fact of loss is certain, and here it is undisputed that Stremke 

### sustained a loss ofthe destroyed property, uncertainty as to the precise amount ofthe loss will not prevent recovery. Lewis River. 120Wn.2d at 717-18. Here, when the evidence is viewed inthe light mostfavorable to Stremke, there is a sufficient basis for thejury to determine the amount ofdamages to which 

### Stremke was entitled for personal property destroyed inthe fire, if any. D. Real Property Damages F&P also challenges thejury's award ofdamages to Stremkefor damaged real property, arguing thatthejury was improperly instructed aboutthe measure of 

### damages. Where the refusal to give a jury instruction is based on a ruling of law,
we review de novo. State v. Ponce. 166 Wn. App. 409, 415-16, 269 P.3d 408 (2012). Jury instructions must be supported by substantial evidence. ]d. F&P contends thatthejury should have been instructed that an award of damages for damaged real property could not exceed the lesser ofeitherthe cost ofrestoring Stremke's home or the diminution ofthe value ofthe home caused by
7Stremke also testified regarding the costto replace the items listed in the inventory. F&Pcontends thatthis testimony was improperly permitted and, by itself, is insufficient to sustain a verdict inStremke's favor. Butbecause there was other relevant evidence before the jury regarding this issue, any error inadmitting the testimony was harmless. 13No. 71424-4-1/14 the fire (the so-called "lesserthan" rule). See, CP at 2315-16 (F&P's proposed "lesserthan" instruction). F&P's proposed instruction mirrors the language of 6 Washington Practice: Washington Pattern Jury Instructions: Civil 30.11 (6th ed. 2009). It is clearfrom the language ofthe instruction, the Note on Use, and caselaw interpreting the "lesserthan" rule, that the rule is inapplicable in cases involving negligent destruction of real property. See e.g.. Thompson v. King Feed &Nutrition Service. Inc.. 153 Wn.2d 447, 454, 105 P.3d 378 (2005). However, in
cases like this one, where real property and improvements thereon are only 

### damaged,8 notdestroyed, the rule still applies. Id. at 456. Inthis case, however, F&P offered no admissible evidence ofthe pre-fire 

### value ofStremke's home.9 Becausethis evidence was lacking, thejury could not reasonably determine eitherthe diminution invalue to the home caused by the fire or whether the diminution in value exceeded the reasonable cost of restoration. Thus, a "lesserthan" instruction would have improperly invited the jury to speculate on this issue. See Chunyk &Conlev/Quad C v. Bray, 156 Wn. App. 246, 255, 232 P.3d (2010). As such, the trial court properly declined to give F&P's proposed instruction.

8Despite Stremke's assertions, there was no evidence that the Stremke home was destroyed by the fire. On the contrary, the numerous photographic exhibits and the witness testimony show that, while the home was severely damaged, itwas stillstanding and, at least in some areas, livable. See, e.g., Ex. 8:1-8:26. 9Although F&P notes on appeal that Stremke's home had an appraised value of $190,000 at the time ofthe fire, and itrepresented, in motions in limine, that defense expert, Larkin would testify to this valuation, as discussed previously, Larkin's testimony was excluded. F&P also proffered an appraisal report, which showed a marketvalue of$190,000 for the Stremke home. However, this report was also excluded from evidence. Thus, F&P offered no admissible evidence ofthe pre-fire value ofthe Stremke home attrial. And no such evidence was introduced by Stremke. 14No. 71424-4-1/15 E. Attorney Fees 

### Over F&P's objection, the trialcourt awarded $624,354.75 inattorneyfees to Stremke as the prevailing party in a CPA claim. For several reasons, F&P argues that the trial court's entry ofthis award was an abuse ofdiscretion. We disagree. First, F&P argues that itwas the prevailing party on the CPA claim and, therefore, Stremke was not entitled to an award ofattorneyfees underthe CPA. 

### Butthejury found by special verdictthat F&P violated the CPA, proximately causing damage to Stremke inthe amount of$537,612. F&P argues that Stremke did not actually prevail on the CPA claim because thejury found her damages on this claim to be duplicative ofthose awarded under her product liabilityclaim and Stremke is limited to one recovery. But F&P cites no authority for this proposition and we decline to ignore thejury's explicit finding in Stremke's favor on this issue. Next, F&P contends that naming Unitrin ajudgment creditorwas error because Unitrin did not advance a CPA claim against F&P and because a subrogating insurer has no right to recover attorney fees. The former contention is not borne out by the record, as Unitrin expresslyjoined inthe CPA claim in Stremke's fourth amended complaint. And F&P offers no authority for the latter. F&P cites Davton v. Farmers Ins. Group. 124 Wn.2d 277, 281, 876 P.2d 896 (1994), in support of its argumentthat Unitrin, as a subrogating insurer, was not entitled to attorney fees underthe CPA. The case is unhelpful. Davton involved a plaintiff's attemptto recover attorney fees incurred in an Uninsured

15No. 71424-4-1/16 Motorist (UIM)arbitration from an UIM insurance carrier, pursuantto Ch. 7.04 RCW. Our Supreme Court held that, since the plaintiffwould not have been able to recover attorneyfees from an insured tortfeasor in litigation arising from an auto accident, a fee award in a UIM arbitration would amount to a windfall. Such


### an award was held improperbecause the UIM statute had the sole purpose of 

### placing the insured inthe same position as ifthe tortfeasorcarried liability insurance. Id. But the present case does not involve a UIMarbitration or a fee 

### award underCh. 7.04 RCW. Thus, Davton is inapposite. Furthermore, F&P's assertion that a subrogating insurer is not entitled to 

### bring a CPA claim in its own right or collect attorneyfees inconjunction with that claim is contrary to the language ofthe CPA and caselaw interpreting it. See. 

### RCW 19.86.090 (allowing "[a]nyperson [including, natural persons, corporations, trusts, unincorporated associations and partnerships) see, RCW 19.86.010)] who is injured in his or her business or property by a violation" ofthe actto bring a CPA claim); Panag v. Farmers Ins. Co. ofWashington. 166 Wn.2d 27, 43-44, 

### 204 P.3d 885 (2009) ("a private CPA action may be broughtby one who is not in
a consumer or otherbusiness relationship with the actor againstwhom the suit is brought.") 

### F&P also challenges the amount ofthe fee award in this case, arguing (1) that the award included fees incurred for work on Stremke's other, non-CPA 

### claims; (2) thatthe trial court's use of a multiplierwas unreasonable; and (3) that the amount requested was patently unreasonable, given the amount in controversy. Each argument lacks merit.

16No. 71424-4-1/17 Trial courts must independently determine what is a reasonable fee using the lodestar methodology. Collings v. City First Mortgage Servs., LLC. 177 Wn. App. 908, 927, 317 P.3d 1047 (2013). review denied sub nom. Collings v. City First Mortgage Servs.. 179Wn.2d 1028, 320 P.3d 718 (2014). "Underthe lodestar methodology, a court mustfirst determine that counsel expended a reasonable number of hours in securing a successful recovery for the client." ]g\ at 927-28. "The lodestarfee, calculated by multiplying the reasonable hourly rate by the reasonable number ofhours incurred inobtaining the successful result, may be adjusted upward or downward inthe trial court's discretion." ]cL at 928. F&P challenges the trial court's determination ofthe lodestar amount in this case: $416,235.50. At trial, F&P objected to Stremke's petition for 

### $832,316.50 inattorney fees, in part, because the bills submitted insupport of this amount included bills for work on issues unrelated to the CPA claim against F&P. The trial court agreed that only hours billed for work on the CPA claim against F&P were recoverable underthe CPA; accordingly, the trial court conducted an independentexamination of Stremke's bills to segregate the fees. 

### After examining "every entry on the billingrecords submitted withthe plaintiffs' motion," the trial courtfound that Stremke's fee petition should be reduced by
more than $140,000, to reflect billings that could be segregated from the CPA claim and excluded from the lodestar amount. F&P argues that Stremke failed to meet her burden to establish that she
was entitled to the $416,235.50 in fees as claimed in her petition. Itappears to suggest thatthis is because the trial court undertook the task of segregating the

17No. 71424-4-1/18 recoverable fees from the non-recoverable fees, rather than requiring Stremke to submit segregated billing records to the court. But F&P does not challenge the trial court's factual findings regarding the nature ofStremke's billing records, the rates and hours listed therein, the particular billable hours that the courtfound

were recoverable under the CPA, orthe court's determination ofthe lodestar amount. Thus, these findings are verities on appeal. In re Estate ofJones. 152 Wn.2d 1, 8, 93 P.3d 147 (2004). 

### Moreover, it is apparentfrom the record that granting F&P's desired relief
on appeal—"remand for a re-calculation ofattorney fees, reflecting deductions in the more than 300 pages of invoices for tasks that Stremke failed to prove are 

### eligible for a CPAfee award"—would only require the trial courtto engage inthe
same inquiry itundertook in response to F&P's opposition to the petition for attorney fees and costs, presumably to the same end. Brief ofAppellant at 38. Next, F&P challenges the trial court's decision to apply a 1.5 multiplierto 

### the lodestar amount in this case. Although the general rule is thatthe lodestar fee, without any upward adjustment, is presumed to adequately compensate an attorneyfor his or her services, the trial court has discretion to apply a multiplier 

### to the lodestar, ifappropriate, to reflectthe contingent nature and/orquality ofthe representation. Henningsen v. Woldcom. Inc., 102Wn. App. 828, 847, 9 P.3d 948 (2000). Inthis case, the trial courtfound that Stremke's attorneys handled the
case on a contingent basis. F&P seemingly assigns errorto this finding, arguing that Stremke was represented by "her insurance company's attorneys, working at

18No. 71424-4-1/19 typical hourly rates actually charged by their law firm." Brief ofAppellant at 39. But this assertion is directly contradicted by the declaration ofStremke's attorney, submitted in support of her motion for attorney fees and costs. The declaration attested that all the attorneys working on Stremke's case listed their time working on the case with a specific billable rate for record keeping purposes, but, "[d]ue to the contingency fee agreement between Unitrin and Bullivant Houser Bailey, Bullivant Houser Bailey never actually received these fees." CP at 3653. This evidence is sufficientto sustain the trial court's finding regarding a contingentfee agreement. We also conclude thatthis finding, taken with the trial court's unchallenged findings that:

• Plaintiffs' attorneys "put inthousands of hours necessitated by the parties' thorough litigation" and "carried the fees for over three years with no assurance of recovery;"
• "Plaintiffs' and their counsel undertook a great deal of risk in this case;"
• The case's long duration "complicated the case for Plaintiffs' counsel and kept Plaintiffs' counsel from working on other less risky cases;"
• and the plaintiffs' fee petition soughtfees at an hourly rate "well below the rates charged inthe Seattle legal marketfor the type of case here." provides sufficient evidence to supportthe trial court's imposition of a 1.5 multiplier on the lodestar amount. CP at 4192-93; 4187. Finally, F&P argues thatthe amount ofthe attorney fee award requested by Stremke—$818,000—was patently unreasonable given the amount in controversy inthis case-$571,000. But the fact thatthe amount at stake inthe
case was small, or that the amount ofthe fee award significantly exceeds the
19No. 71424-4-1/20
amount at stake, is not dispositive ofwhether a fee award unreasonable. Collings. 177 Wn. App. at 929 (affirming an attorney fee award ofover $600,000, where the plaintiffs' recovery for claims underthe CPA and Credit Services Organization Act was only about $120,000); see also. 25 WPI: ContractLaw and Practice 14:23 (3d ed. 2014). Accordingly, we reject F&P's argument on this issue. Affirmed.

WE CONCUR 

# ^r&>,vdP&_;

CO

up

20