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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ALLSTATE INSURANCE COMPANY, a foreign insurance company, Plaintiff,

BANK OF AMERICA, a foreign corporation, Defendant. BANK OF AMERICA, a foreign corporation, Third-Party Plaintiff,

v. EFLEDA PAZ, Third-Party Defendant. EFLEDA PAZ, Appellant,

ALLSTATE INSURANCE COMPANY, a foreign insurance company, Respondent. No. 72947-1-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: July 25, 2016 

### Schindler, J. — Efleda Paz appeals summaryjudgment dismissal of her lawsuit 

### againstAllstate Insurance Company (Allstate). We affirm. 

### Efleda Paz provides a limited record on appeal. However, the following facts are undisputed.No. 72947-1-1/2 

### Efleda Paz and herformer spouse Fernando Paz owned rental property located in Kent and obtained a "Landlord Insurance Policy" from Allstate. The policy was effective from November 22, 2009 to November 22, 2010. The Landlord Insurance Policy listed Efleda and Fernando as the named insureds and "Select Portfolio Servicing 

### Inc Its Successors &/OrAssigns" (SPS) as the mortgagee.1 InAugust 2010, Fernando notified Allstate that former tenants had damaged the rental property. Allstate opened a claim. Following an investigation, Allstate issued a check dated September 21, 2010 for the claim for damages inthe amount of$30,634. 

### The checkwas made payable to Efleda and Fernando and to SPS.2 But Bank of America accepted and cashed the check with only Efleda's endorsement. In 2012, SPS asserted the right to payment from Allstate for the claim of 

### damages inthe amount of$30,634 plus interest. Allstate paid $34,310 to SPS and SPS assigned Allstate all its rights and claims against Bank ofAmerica. 

### InSeptember 2013, Allstate sued Bank ofAmerica for conversion and 

### negligence. Allstate alleged the bank violated RCW62A.3-110(2)(d) by accepting and cashing the checkfor$30,634 with onlyone of the required endorsements. Bank of 

### Americafiled a third party complaintagainst Efleda.3 OnJanuary 14, 2014, Efleda, acting pro se, filed a fourth party complaintagainst 

### Allstate. Efleda alleged claims for negligence and "civil liabilityforunlawful issuance of checks or drafts." Efleda asserted Allstate violated the terms ofthe policy by failing to 

### timely and fully compensate herforthe claim fordamages.

1We refer to Efleda Paz and Fernando Paz by their first names for clarity. 2In January2011, Allstate issued a second checkin the amountof$5,102. This lawsuit involves only the first check. 3The record on appeal does not include Bank of America's complaint against Efleda.No. 72947-1-1/3 

### Allstate filed a motion forsummaryjudgmentdismissal of the complaint. Allstate argued the claim for unlawful issuance ofchecks failed to state a claim for reliefand the 

### other claims were barred by the one-yeartime limitation of the policy and the three-year
statute of limitations. 

### Efleda retained counsel and filed a response. Inthe response to summary judgment, Efleda conceded her claim for unlawful issuance of checks should be 

### dismissed. Efleda conceded her negligence claim was barred bythe three-year statute of limitations. Relying on Hunter v. North Mason High School, 12 Wn. App. 304, 529 P.2d 898 (1974), Efleda argued material issues offact precluded summaryjudgment because the one-year lawsuit limitation clause in the insurance policy violated public policy and was unenforceable. Efleda asked the court to dismiss the complaint without prejudice and allow her to file an amended complaint to assert a claim underthe 

### Insurance Fair ConductAct, chapter48.30 RCW.4 The court granted Allstate's motion and dismissed Efleda's complaint against Allstate with prejudice. Efleda filed a motion for reconsideration. Efleda argued for the first time that Allstate refused to release the "insurance binder" in violation ofWAC 284-30-560 and WAC 284-30-350. The trial court denied the motion for reconsideration. 

### Efleda appeals, challenging summaryjudgment dismissal of her lawsuit and denial ofthe motion for reconsideration. 

### We review a decision to grant or deny summaryjudgment de novo, considering 

### all the facts in the light most favorable to the nonmoving party. TransAlta Centralia Generation LLC, v. Sicklesteel Cranes, Inc., 134 Wn. App. 819, 825, 142 P.3d 209

4 Efleda did not file a motion to amend.No. 72947-1-1/4 

### (2006). Summaryjudgment is appropriate where "there is no genuine issue as to any material fact and
... the moving party is entitled to a judgment as a matter of law." CR 56(c). On appeal, we consider only arguments presented to the trial court. See RAP 2.5(a); Washburn v. Beatt Equip. Co.. 120 Wn.2d 246, 290, 840 P.2d 860 (1992) (appellate court willgenerally not consider arguments not presented to the trial court). RAP 9.12 specifically provides that on "review of an order granting ordenying a motion for summaryjudgment the appellate court willconsider only evidence and issues called
to the attention ofthe trial court." We review the denial of a motion for reconsideration for abuse of discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002). Acourt abuses its discretion when its decision is manifestly unreasonable


### or based on untenable grounds or reasons. In re Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004). 

### Forthe first time on appeal, Efleda's sole argument is thatAllstate violated WAC 284-30-380(5). Efleda contends the one-year lawsuit limitation clause setforth in the 

### insurance policy may only be enforced ifthe insurer complies with WAC 284-30-380(5) and provides written notice to the insured 30 days before the lawsuit expiration period expires. The regulation provides: 

### Insurers must not continue negotiations for settlement of a claim directly with a claimantwho is neither an attorney nor represented by an attorney 

### until the claimant's rights may be affected by a statute of limitations or a 

### policy orcontracttime limit, withoutgiving the claimant written notice that the time limit may be expiring and may affect the claimant's rights. This notice must be given to first party claimants thirtydays and to third party 

### claimants sixty days before the date on which any time limit may expire. WAC 284-30-380(5).No. 72947-1-1/5 

### Efleda did not allege Allstate violated WAC 284-30-380(5) inthe complaint, the opposition to summaryjudgment, or her motion for reconsideration. Because Efleda failed to raise the issue ofcompliance with WAC 284-30-380(5) in superior court, we do 

### not considerthe argument on appeal. See RAP 9.12; Wilcox v. Lexington Eve Inst., 

### 130 Wn. App. 234, 241, 122 P.3d 729 (2005) (a party may not propose new theories of the case that could have been raised before entry of an adverse decision). 

### We also note Efleda presented no evidence below in support ofthe argument thatAllstate failed to comply with WAC 284-30-380(5). 

### Allstate seeks an award ofattorney fees arguing Efleda's appeal is frivolous under RAP 18.9. Under RAP 18.9(a), an appellate court may order a party to pay 

### compensatory damages or termsforfiling afrivolous appeal. "[A]n appeal isfrivolous if itraises no debatable issues on which reasonable minds might differ and it is so totally 

### devoid of merit that noreasonable possibility of reversal exists." Protect the Peninsula's Future v. City of PortAngeles, 175 Wn. App. 201, 220, 304 P.3d 914 (2013). Because 

### contraryto RAP 9.12Efleda raises an argumentforthefirst time on appeal, we grant Allstate's requestfor fees subject to its compliancewith RAP 18.1.


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WE CONCUR: