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COURT OFAPPEALS, DIVISION III, STATE OF**WASfU~ON'~:ii~::,:;** JANICE COURCHAINE, a single person; ) No. 30020-0-111 and EVA VOSS, a single person, ) (consolidated with ) No. 30021-8-111) Respondents, ) ) 

### v. ) ) ORDER GRANTING MOTION COMMONWEALTH LAND TITLE ) TO PUBLISH OPINION INSURANCE COMPANY; and FIDELITY ) NATIONAL TITLE INSURANCE GROUP, ) ) Appellants, ) ) SPOKANE COUNTYTITLE, ) ) Defendant. ) THE COURT has considered a third party's motion to publish the court's opinion of December 13, 2012, and the record and 'file herein, and is ofthe opinion the motion should be granted. Therefore, IT IS ORDERED, the motion to publish is granted. The opinion filed by the court on December 13, 2012 shall be modified on page 1 to designate it is a published opinion and on page 25 by deletion ofthe following language: A majority ofthe panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW2.06.040. DATED: March 12, 2013 PANEL: Judges Siddoway, Korsmo, Sweeney. FOR THE COURT: Ki2<IiNM:oRSMO, ChieJUdge

### FILED December 13,2012
In tne Office oftne Clerk ofCourt W A State Court ofAppeals. Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE JANICE COURCHAINE, a singleperson; ) and EVAVOSS, a single person, ) No. 30020-0-III ) (consolidated with Respondents, ) No. 30021-8-III) ) 

### v. ) ) COMMONWEALTHLAND TITLE ) INSURANCE COMPANY; and ) FIDELITY NATIONAL TITLE ) INSURANCE GROUP, ) ) Appellants, ) ) SPOKANE COUNTYTITLE, ) UNPUBLISHED OPINION ) Defendant. )
SIDDOWAY,

### J.

- Janice Courchaine andEvaVoss sued CommonwealthLand Title Insurance Company and its parent, Fidelity NationalTitle Insurance Group, over an undisclosed easementburdening property whosetitle Commonwealth insured. Courchaine andVoss prevailed at trial. Commonwealth and Fidelity appeal, arguing that (1) Commonwealth did not breach thetitle policy and Fidelity has no liability for coverage; (2) Commonwealth did not breach the ConsumerProtectionAct (CPA),No. 30020-0-III; 30021-8-III Courchaine v. Commonwealth LandTitle Ins. Co. chapter 19.86 RCW; and (3) even ifCommonwealth did violate the CPA, Fidelity is not separately and additionally chargeable for that violation. We reverse thetrial court'sjudgmentagainst Fidelity onthepolicy and against Commonwealthunder the CPA but otherwise affirm. FACTS AND PROCEDURAL BACKGROUND In September 2008, Janice Courchaine and EvaVoss entered into apurchase and sale agreement for real property located on Cataldo Avenue in Spokane Valley. A single family home existed on the west halfofthe very large lot and there was room to build a second, adjoining home on the easthalf, which suited the women's plans to build duplex homes for their families. Before closing, Courchaine and Voss obtained apreliminary commitment for title insurance from Commonwealth. They reviewed it, considered each ofits exceptions, and found nothing that would frustrate their constructionplans. Schedule B to the commitment, identifying specific exceptions to coverage, revealed an easement in favor ofModern Electric Company, their utility company. Butthe easementwas consistent with the seller disclosure statementthat disclosed a "powercompany easement" on the property and consistent with the distribution and service lines delivering electricity to the home. Ex. 4. On October 15,2008,they purchased theproperty and acquired title by statutory warranty deed.

2No. 30020-0-III; 30021-8-III Courchaine v. Commonwealth LandTitle Ins. Co. Shortly afterpurchasing the property, they learned from a neighborthatthe Bonneville PowerAdministration (BPA) may have an as-yet unused easement across theirproperty, which was confirmedwhenthey attempted to get a buildingpermit and
were denied. They learnedthat construction onthe easthalfofthe lot would interfere with a 75-foot easement for transmission lines, in favor ofBPA. The women submitted a claimundertheir Commonwealthtitle policy, which did not list the BPA easement as an exceptionto coverage. Commonwealth originally accepted the claim, acknowledging coverage. Butit then reassigned responsibility to Lisa Leick, a claims adjuster for Fidelity, its corporate parent. Leickthereafter notified the women in a four-page letterthattheir claimwas not covered. Among otherreasons offered by Leick for denying the claim was thatthe recorded plat for the Guthrie's Valley View 4th Addition, by whichtheir lotwas created in 1954, disclosed an easement along the eastern halfofthe lot for BPA transmission lines. The
women did not seethe 1954 plat before purchasing the property. Courchaine and Voss commenced the action below in March2010. A three-day bench trial was conducted a year later. Thetrial court delivered its oral decision atthe conclusion ofthe evidence, finding that the claim was covered and that both Commonwealth and Fidelity had violated the CPA. Itsjudgmentimposed liability under the insurance policy against both Commonwealth and Fidelity. Commonwealth and Fidelitytimely appealed. 3No. 30020-0-III; 30021-8-III Courchaine v. Commonwealth Land Title Ins. Co.
ANALYSIS Commonwealth and Fidelity assign errorto the trial court's conclusion that Courchaine's claim was covered by the Commonwealth policy, to its finding ofa violation ofthe CPA against Commonwealth, and to its finding Fidelity separately and additionally liable under the policy and chargeable for the CPA violation. We address their assignments oferrorto the coverage issue first, and thereafter their assignments of
errorto the findings ofCPA violations. In discussing the parties' positions hereafter, we referto Courchaine and Voss collectively as Courchaine, for simplicity. I Commonwealthwas the issuer ofthe title insurance policy. Its first and second assignments oferror essentially challengethe sufficiency ofthe evidence to establish a breach ofits policy. It concedes that many ofthe facts are undisputed, focusing instead
on what it argues are the trial court's unwarranted conclusions oflaw. When a trial court enters findings offact and conclusions oflaw following a bench trial, review is limitedto determining whether substantial evidence supports the findings, and ifso, whetherthe findings supportthe trial court's conclusions oflaw andjudgment. Saviano v. WestportAmusements, Inc., 144 Wn. App. 72,78, 180 P.3d 874 (2008). We review only the findings to which appellant assigns error; unchallenged findings are treated as verities on appeal. Nordstrom Credit, Inc. v. Dep'tof Revenue, 120 Wn.2d 935,941,845 P.2d 1331 (1993). 4No. 30020-0-III; 3002l-8-III Courchaine v. Commonwealth Land Title Ins. Co.
Commonwealth has not assigned error to any finding offact, so ourreview is limited to determining whether the findings support the trial court's conclusions. Fenton
v. ContemporaryDev. Co., 12 Wn. App. 345, 347, 529 P.2d 883 (1974). The interpretation ofinsurancepolicies is a question oflaw that we review de novo. State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477,480,687 P.2d 1139 (1984). The trial court's first conclusion oflaw states: 1. The Commitmentwas a contract for title services between the Plaintiffs and the Defendants. TheDefendants' Title policy was a statement ofterms and conditions upon which the issuerwas willing to issue its title policy. The Commitment failed to except the seventy five (75') foot easement. Therefore, Commonwealthbreached the contractwith thePlaintiffs. The Plaintiffs' damages based upon breach ofcontract are $23,500.00
. Clerk's Papers (CP) at 167. A. Alleged Error in Finding a "Dutyto Except" Commonwealth first argues that the trial court erred in concluding thatthe preliminary commitment was a contract for "title services" and that Commonwealthwas required by its contract to except all matters ofthe publicrecord thattouched and concerned the land. Itargues that this conclusion confuses title insurance with abstracts oftitle. It points out that title insurance is an indemnity contract and exceptions from coverage are for the benefit ofthe insurer, not the insured. Forthat reason, atitle insurer is not requiredto except anything from coverage. Here, Commonwealth is correct.

5No. 30020-0-III; 30021-8-III Courchaine 

### v. Commonwealth Land Title Ins. Co.
The Washington Supreme Courtrecognized in Shotwell v. Transamerica Title Insurance Co., 91 Wn.2d 161, 165,588 P.2d 208 (1978) that a duty to disclose title defects might arise from the combined expectations ofa title policy applicant and the service tobeperformed bytitle insurance companies. But it declined to decide the issue then, or inthree later cases, deciding each case on other grounds. See Barstadv. Stewart Title Guar. Co., 145 Wn.2d 528,534-35,39 P.3d 984 (2002) (citingShotlvell, 91 Wn.2d 161; Transamerica Title Ins. Co. v. Johnson, 103 Wn.2d 409, 693 P.2d 697 (1985); Klickman v. Title Guar. Co. of Lewis County, 105 Wn.2d 526, 716 P.2d 840 (1986); Lombardo v. Pierson, 121 Wn.2d 577,852P.2d 308 (1993)). Before the court could reach and decide the issue, the legislature acted. In 1997, it amended the insurance code to clarify the distinction betweenpreliminary reports or commitments, on the one hand, and abstracts oftitleonthe other, includingto clarifY
some ofthe responsibilities associated with each form. LAWS OF 1997, ch. 14, § 1 (adding a new subsection (3) to RCW 48.29.010); Barstad, 145 Wn.2d at 536. As a result ofthe amendment, "titlepolicy" means, by statute, "anywritten instrument, contract, or guarantee by means ofwhich title insurance liability is assumed." RCW 48.29.010(3)(a).1 A preliminary commitment "is not a representation ofthe condition of

I A propertypurchaser is generally not required by law to obtain title insurance, but a mortgage lendertypically requires a borrower to buy title insurance in orderto protectthe lender's interest in the property. WASH. STATE OFFICE OF THE INS. COMM'R, REpORT OF THETITLE INSURANCE REVIEW TASK FORCE, TITLE INSURANCE IN 6No. 30020-0-III; 30021-8-II1 Courchaine v. CommonwealthLand Title Ins. Co. title, but a 'statement ofterms and conditions upon which the issuer is willing to issue its title policy, ifsuch offer is accepted.'" Barstad, 145 Wn.2d at 536 (quoting former RCW 48.29.010(3)(c) (1997)). By contrast, "abstractoftitle"means
a writtenrepresentation, provided under contract, whether written or oral, intendedto berelied upon bytheperson who has contracted for the receipt ofthis representation, listing all recorded conveyances, instruments, or documents that, under the laws ofthe state ofWashington, impart constructive notice withrespect to the chain oftitle to the real property described. RCW48.29.010(3)(b). The definition of"abstract oftitle" expressly provides that "[a]n abstract oftitle is not a title policy as defined inthis subsection." ld. This 1997 amendmentto RCW 48.29.010 "resolve[d] the obligations associated with a preliminary commitment and an abstract oftitle," and did so in favor ofthe position oftitle insurers, who had "'roundly den[ied] they have the abstracter's duty,'" and "'argue[d] thatthepreliminary commitment merely discloses whatthepolicy will and will not cover, that their only legal obligation is to pay losses under the policy, and that an insured has no reasonable expectation ofanything more.", Barstad, 145 Wn.2d at 536,539 (quoting 18 WILLIAM B. STOEBUCK, WASHINGTON PRACTICE: REAL ESTATE: TRANSACTIONS § 13.18, at 147 (1995)).

WASHINGTON: IMPROVING COMPETITION AND CONSUMER CHOICE at 9 (Sept. 2007). 7No. 30020-0-III; 30021-8-II1 Courchaine v. Commonwealth Land Title Ins. Co.
The trial court's challenged conclusion was not that Commonwealth had a duty to disclose the easement, but that ithad a duty to except it. 2 Yeteven that is not strictly correct. The duty undertaken by Commonwealth in issuing the title policy was not to except every limitation on title. Its duty was, instead, to indemnify against any limitation
on title that it did not except. While Commonwealth is correct in arguing that Courchaine and the court sometimes relied, in error, on a nonexistent "duty to except," we can lookbeyondthat characterization error tothe essence ofthe complaint, the evidence, and the findings. Breach ofthe duty to indemnify is the substance ofCommonwealth's breach as framed by Courchaine's contract claim, the first claim for reliefset forth in the complaint. It is the substance ofCommonwealth's breach as testified to by Commonwealth's former employee, Kennard Goodman, whom Courchaine called as a witness and who the trial court found credible andpersuasive. Goodman testified: Q So although you could not hire an appraiser [after Fidelity acquired Commonwealth], it was still your professional opinion that [Courchaine's] claim shouldbe accepted, correct? A Yes. That's what my letter said. Q And that is because the BonnevillePower Administration easement, the 75 foot easement, was not disclosed?

2 Commonwealth has argued, in part, from the language ofproposed conclusions that the court modified in some respects, in light ofCommonwealth's objections. We review whether the findings support the conclusions as entered by the court and disregard Commonwealth's arguments to the extent it relies on findings that were dropped or modified. 8No. 30020-0-III; 30021-8-III Courchaine 

### v. Commonwealth Land Title Ins. Co.
A Itwas not excepted from the policy and I-allthe preliminary commitmentdoes is state these are the terms on which we are willing to give you an insurance policy. So it's not an abstract. And I try to be very strict about that. So it's not a question ofdisclosure. It's an insurance policy. It's a risk that's insured against and there is no exception for that risk. 

### Q And there should have been an exception for that risk, in your opinion? A 

## If the title companydidn'twant to cover the loss resulting from that risk, yes, there shouldhave been a separate exception for it. Report ofProceedings (RP) (Mar. 7,2011) at 18-19 (emphasis added). Itwas a gist of the trial court's oral decision, which it incorporated by reference into its findings and conclusions. In its oral decision, the court stated, in part: I cannot believe that they in goodfaith knew atthatpointor believedat thatpoint they didn'thave a validclaim, that theplaintiff didn't have a validclaim. Itseems so apparent that theplaintiff hada validclaim and yet they did playa shell game. RP (Mar. 10,2011) at 239 (emphasis added). On appeal, '''[w]emay affirm the [lower] court on any grounds established by the pleadings and supported by the record.'" In reMarriage of Rideout, 150 Wn.2d 337, 358, 77 P.3d 1174 (2003) (alterations in original) (quoting TruckIns. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 766, 58 P.3d 276 (2002)). Commonwealth had no duty to except the BPA easement. But it did have a duty to indemnify Courchaine against any actual loss on account ofthe BPA easement ifit did not except it.

9No. 30020-0-III; 30021-8-II1 Courchaine v. CommonwealthLandTitle Ins. Co.
Courchaine made a claim and demonstrated actual loss. Given the pleadings, the evidence, and the gist ofthe trial courfs decision,judgmenton the policy can be affirmed ifthe record supports Commonwealth's breach ofacontractual duty to indemnify. B. Alleged Exclusion by Description ofCovered Land Commonwealth contends thatthe trial court made a further error in finding in Courchaine's favor on the coverage issue, however. Itargues that the lotpurchased by Courchaine was created by a plat, the title that itinsured was defined in terms ofthe plat, any restrictions oreasements identified on the platwere thereby part ofthe legal description ofthe property, and the BPAeasementwas reflected ontheplat map. With the insured title already subject to any limitations notated on the plat, it argues, it needed to except only matters not disclosedby the plat. Itmakes a related argumentthat its title commitment andpolicy excepted coverage for "restrictions" shown on the plat. The standard offer made by Commonwealth's commitment for title insurance was set forth in the preprinted terms ofits policy cover, which stated Commonwealth's commitmentto issue a policy oftitle insurance in favor ofthe proposed insured as owner
ormortgagee ofthe estate or interest covered hereby in the land described orreferred to in ScheduleA. upon payment ofthe premiums and charges therefor; all subjectto the exceptions and conditions and stipulations shown herein, the Exclusions from Coverage, the Schedule B exceptions, and the conditions and stipulations ofthe policy orpolicies requested. CP at 33. 10No. 30020-0-III; 30021-8-III Courchaine v. Commonwealth Land Title Ins. Co.
Schedule A provided that the estate or interest in the land described was "FEE SIMPLE" and described the land as: Lot**11~** Block 1, GUTHRIE'S VALLEY VIEW 4TH ADDITION, as per plat recorded in Volume 3 ofPlats, page 62, records ofSpokane County. CP at 36,37. The policy that Commonwealth offered to issue, and ultimately did issue, insured Courchaine against actual loss resulting from "COVERED RISKS" set forth in the policy. CP at 46. Among the covered risks were that "[s]omeone else has an easement
on the Land." Id. (Covered Risk 4). Courchaine was therefore insured against actual loss resulting from the BPA easement unless (1) coverage was limited by her title, which was already limited by that easement, or (2) the easement was addressed in an exception, condition, stipulation, or exclusion. Commonwealth's argument that Courchaine's coverage was confined to the limits ofher title is readily addressed. In Shotwell, the conveyance to the insured had concluded its description ofthe land conveyed with the language, "'EXCEPTright of way for existing roads.", 91 Wn.2d at 163 (emphasis omitted). The insured's title policy described the land with identical language. The title insurer argued that inasmuch as the language ofthe conveyance effectively excluded an existing but as-yet-unused road easement, then the identical language, incorporated in its policy, mustbe sufficientto exclude the same easement from coverage. The court disagreed, holding that "[i]n
11No. 30020-0-III; 3002l-8-III Courchaine v. CommonwealthLand Title Ins. Co. construing a policy ofinsurance the rules ofconveyancing do not necessarily apply." 91 Wn.2d at 170. In arriving at its holding, the Shotwell court cited, with approval, a Texas decision rejecting an argument that is on all fours with Commonwealth's argument here. In San Jacinto Title Guaranty Co. v. Lemmon, 417 S.W.2d 429,431 (Tex. App. 1967), the title insurer argued that because it described the insured land as a numbered lot, '''as shown by the map orplatThereofnow ofrecord
... to which reference is here made for all pertinentpurposes,'" then an easement for a waterline identified on the recorded plat was excluded from the terms ofthe policy without the need for a specific exception. The Texas court rejected the argument. Our Supreme Court, in Shotwell, quoted and adopted its reasoning: "Unquestionably, the reference in the warranty deed to the recorded map or plat contemplatedthe purposes ofthe deed. The description of the land in thepolicy 'wasfor thepurpose of identifYing the land coveredby thepolicy andnot, as appellant contends,for thepurpose of limiting the insurance protectionpurchased. In our opinion, this was the clear and unambiguous meaning ofthe policy. To hold otherwise would, in effect, require appellees, who have purchased title insurance, to be their own insurer in so far as theirtitle to the land, in the respect here under consideration, is concerned. Such a result would not be in keeping with the principal purpose ofthe policy
...." Shotwell, 91 Wn.2d at 169-70 (quotingLemmon, 417 S.W.2d at 431-32); cfDenny's Restaurants, Inc. v. Sec. Union Title Ins. Co., 71 Wn. App. 194, 859 P.2d 619 (1993) (finding coverage even where the land covered by the insured's claim was clearly
12No. 30020-0-III; 30021-8-III Courchaine v. Commonwealth LandTitle Ins. Co.
excluded by the policy's description ofland, because other provisions ofthe policy reasonably implied coverage). There is an additional reason why this argument fails in light ofthe terms of Commonwealth's policy. Its commitment states thatthe estate or interest it offers to insure is "fee simple," in land it proceeds to describe. A party who has a "fee simple" interest or estate holds her interest free ofeasements. See Wingard v. Copeland,64 Wash. 214, 218,116 P. 670 (1911) (appellant was unable to convey full fee simple title where his land was subject to an easement). Commonwealth's argument thatthe land described by its policy was already subjectto the BPA easement is irreconcilable with its offerto insure a fee simple estate or interest in that land, subject only to the exceptions, conditions, stipulations, and exclusions provided by the policy. C. Alleged Exception as a Restriction Commonwealth must therefore identify an exception, condition, stipulation, or exclusion that prevents the BPA easement from falling within the scope ofthe policy's coverage. It relies on only the following exception, included in Schedule B to the commitment and policy: RESTRICTIONS contained on the face of[the Guthrie's Valley View] plat, but omitting any covenants or restrictions, ifany, based upon race, color, religion, sex, sexual orientation, familial status, marital status, disability, handicap, national origin, ancestry, or source ofincome, as set forth in applicable state or federal laws, excepttothe extentthat said covenant or restriction is permitted by applicable law.
13No. 30020-0-III; 30021-8-III Courchaine v. Commonwealth LandTitle Ins. Co.
CP at 39. Courchaine argues thatthe trial court's findings adopt trial testimony from Commonwealth's former employee, Goodman, that easement and restriction are "two different terms ofart" and that "there is a difference betweenrestrictions as noted in schedule B 

### # 7 ofthe preliminary title report andeasements." CP at 164, 166 (Findings ofFact 16,25). Commonwealthhas not assigned error to these two findings, which are verities on appeal. Even ifwe examine the meaning of"restriction" as an issue ofinsurance policy construction and therefore an issue oflaw, Commonwealth's position is notpersuasive. "Restriction" is not definedby eitherthe commitment or the policy. Ifthere were no policy, its meaning in the commitment might beambiguous. But the policy treats easements and restrictions as separate and distinct. "Easement" is defined by the policy, to mean "theright ofsomeone else to use the Land for a special purpose." CP at 50. "Restriction," on the otherhand, is used in the policy to refer to a rule or condition for the owner's use ofthe land. Thepolicy treats "restrictions" as things that can be violated or enforced. One ofthe covered risks underthe policy is: Your Title is lost ortaken because ofa violation ofanv ... restriction, which occurred before You acquired YourTitle, even ifthe covenant, condition or restriction is excepted in Schedule B. CP at 46 (Covered Risk 13) (emphasis added). Another is:

14No. 30020-0-III; 30021-8-III Courchaine v. Commonwealth Land Title Ins. Co.
Someone else tries to enforce a discriminatory
... restriction that they claim affects Your Title which is based upon race, color, religion, sex, handicap, familial status, ornational origin. Id. (Covered Risk 23) (emphasis added). Easements are addressed separately, as presenting distinct risks. Consistentwith the policy's definition, "easement" is used to refer to rights ofotherparties. Reference to easements appears first in the covered risk triggering coverage in this case: Someone else has an easement on the Land. Id. (Covered Risk 4). Elsewhere, easements present a covered risk if: You are forced to remove Your existing structures because they encroach onto an easement or over a building set-back line, even ifthe easement or building set-back line is excepted in Schedule B. Your existing structures are damaged because ofthe exercise ofa right to maintain or use any easement affecting the Land, even ifthe easement is excepted in Schedule B. Id. (Covered Risks 20, 21). Interpretation ofinsurance policies is a question oflaw; the policy is construed as
a whole with the court giving force and effect to each clause in the policy. Am. StarIns. Co. v. Grice, 121 Wn.2d 869, 874,854 P.2d 622 (1993). The language ofan insurance policy is to be interpreted in accordance with the way 

### it would be understood by the average person, rather than in atechnical sense. Id. (citingBoeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 881, 784 P.2d 507 (1990)). Ifpolicy language is clear and unambiguous, the court may not modity the contract or create an ambiguity. Id. 15No. 30020-0-III; 30021-8-111 Courchaine v. CommonwealthLand Title Ins. Co.
We find no ambiguity. A "restriction," as that term is used in Commonwealth's commitment and policy, is fundamentally different from an easement. Given its meaning, it cannot be understood to include easements. And ifwe were to find an ambiguity, well-settled principles ofinsurance policy construction would require us to give the commitment and policy a meaning and construction favorable to the insured. Bordeaux, Inc. v. Am. SafetyIns. Co., 145 Wn. App. 687, 694,186 PJd 1188 (2008). Coverage exclusions "are contrary to the fundamental protective purpose ofinsurance," "will not be extended beyond their clear and unequivocal meaning," and "should also be strictly construed against the insurer." Stuart v. Am. StatesIns. Co., 134 Wn.2d 814, 818­ 19,953 P.2d 462 (1998). Because Commonwealth's policy did not exclude or exceptthe BPA easement, it breached its duty to indemnify Courchaine when it failed to compensate her loss. The trial court correctly found in her favor in light ofherbreach ofcontract claim. 

### D. Liability ofFidelity for the Policy The trial court also imposed liability on Fidelity to indemnify Courchaine against loss underthe policy. Fidelity assigns errorto that part ofCourchaine'sjudgment, pointing out that Courchaine presented no evidence orargument 

### as to a basis on which it could be liable for the policy it did not issue. Courchaine provides no rationale for Fidelity's liability in herresponse.

16No. 30020-0-III; 30021-8-III Courchaine v. Commonwealth Land Title Ins. Co.
Tothe extent that thejudgmentimposes liability against Fidelity underthe policy, it appears inconsistent with the court's conclusions oflaw, which state, "The Commitment failed to except the seventy five (75'),foot easement. Therefore, Commonwealth breachedthe contract with the Plaintiffs. The Plaintiffs' damages based upon breach ofcontract are $23,500.00." CP at 167. There being no evidence ofabasis for Fidelity's liability for Commonwealth'spolicy, that portion ofthejudgment against 

### it mustbe reversed. II Commonwealth and Fidelity also challenge the trial court's conclusions thatthey violatedthe CPA. The CPA provides that "[u]nfairmethods ofcompetition and unfair or deceptive acts orpractices in the conduct ofany trade or commerce are hereby declared unlawful" andprovides for a private right ofaction. RCW 19.86.020, .090. To prevail
on a CPA claim alleging an unfair or deceptive act or practice, the plaintiffmust establish that (1) the defendant has engaged in an unfair ordeceptive act orpractice, (2) in trade or commerce, (3) that impacts the public interest, (4) the plaintiffhas suffered injury in his
or herbusiness orproperty, and (5) a causal link exists betweenthe unfair or deceptive act and the injury suffered. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778,780,719 P.2d 531 (1986). Commonwealth and Fidelity challenge the sufficiency ofthe evidenceto support an unfair or deceptive act orpracticethat impacts the public interest. 17No. 30020-0-III; 30021-8-III Courchaine v. Commonwealth Land Title Ins. Co.
The public interest impact element may be satisfiedper se, by showing that a statutehas been violated that contains a specific legislative declaration ofpublic interest impact. Id. at 791. In RCW48.01.030 the legislature has provided that "[tJhe business of insurance is one affectedby the public interest, requiring that all persons be actuated by good faith, abstain from deception, and practice honesty and equity in all insurance matters." See Salois v. Mut. a/OmahaIns. Co., 90 Wn.2d 355,359 & n.1, 581 P.2d 1349 (1978). Thepublic interest impact element is therefore satisfied per se. An unfair trade practice may also be established per se, by showing that the defendant has engaged in an act orpractice that the legislature has declared to constitute
an unfair or deceptive actin trade or commerce. Hangman Ridge, 105 Wn.2d at 786. In addition, and because the CPA expressly applies to "actions and transactions prohibited
or regulatedunder the laws administered by the insurance commissioner," anunfair trade practice may be established per se by showing thatit has been declared an unfair practice in regulations adopted by the insurance commissioner. RCW 19.86.170 (emphasis added); Indus. Indem. Co. a/theNw., Inc. v. Kallevig, 114 Wn.2d 907,920,792 P.2d 520 (1990). The insurance commissionerhas declared a number ofclaims settlement practices unfair or deceptive in WAC 284-30-330. The trial court's findings do not include a finding ofa per se unfair trade practice. Where a plaintiffcannotpoint to a statute or regulation declaring an act or practice unfair or deceptive, she may still independently demonstrate that the practice is unfair or 18No. 30020-0-III; 30021-8-II1 Courchaine v. Commonwealth Land Title Ins. Co. deceptive by showing that the practice has the capacity to deceive a substantial portion of the pUblic. Hangman Ridge, 105 Wn.2d at 785. While the CPA does not define the term "deceptive" the court has held that "implicit in that term is 'theunderstanding that the actor misrepresented something ofmaterial importance.'" Stephens v. OmniIns. Co., 138 Wn. App. 151, 166, 159 PJd 10 (2007) (quoting Hiner v. BridgestonelFirestone, Inc., 91 Wn. App. 722, 730, 959 P.2d 1158 (1998), rev'dinparton othergrounds, 138 Wn.2d 248, 264,978 P.2d 505 (1999», aff'dsub nom. Pangv. Farmers Ins. Co., 166 Wn.2d 27, 204 P.3d 885 (2009). The trial court's second and third conclusions oflaw identified the following acts
orpractices that itconcluded violated the CPA: 2. Defendant Commonwealth violated the [CPA] by unfair or deceptive acts orpractices, namely failing to include and except in the title insurance policy the easement filed ofrecord in September of 1945, under recording number 666726A
. . .. Commonwealth also failed to issue the final title policy for six (6) months. When they finally issued the final policy in April of2009, it was back datedto October 17, 2008. 3. Defendant Fidelity failed to paythe Plaintiffs' claim when said failure to exceptthe BPA easement was brought to Fidelity'S attention. Further, both Defendants misled the Plaintiffs into believingthat they were two separate legal entities acting independent ofone another. CP at 167-68. A. Commonwealth's Liability Under the CPA We first address Commonwealth's liability underthe CPA. In concluding that Commonwealth was liable for trebled damages, attorney fees, and costs underthe CPA,
19No. 30020-0-III; 30021-8-III Courchaine v. Commonwealth LandTitle Ins. Co.
the trial court relied upon (1) Commonwealth's failure to identify the BPA easement as
an exception to coverage in its commitment andpolicy; (2) its failure to issue the final, back-dated title policy for six months; and (3) along with Fidelity, its misleading Courchaine into believingthatthe two companies were separate legal entities acting independent ofone another. As already addressed, Commonwealth hadno duty to identify the BPA easement
as an exception to coverage in its commitment and policy. Given the clear language of RCW 48.29.010(3)(c) that apreliminary commitment "is not a representation as to the condition ofthe title," Commonwealth's nondisclosure ofthe BPA easement cannot be considered unfair or deceptive. As to the delay in issuing the title policy, the trial court does not address in its findings how orwhy the delay in issuing or transmitting the policy was unfair or deceptive. The trial court's oral decision, incorporated in the findings, reveals only speculation that the delay in receiptofthe policy might have been to create obstacles or inconvenience for the insured. 3 Review ofthe record reveals that the only testimony addressing the delay noted the fact ofthe delay, but without indicating that itpresented any problem.

3 The trial court stated in its oral decision: [TJwo months later comes [aJn e-mail on March 24 of'09 from someone who says all ofasudden "I'mthe new claims adjuster. You're dealing with me, and by the way, you get me Commonwealth's information and give it to me," which is atotal mystery. Was that meantto deceive or inferto the plaintiffthat Fidelity was not affiliated with Commonwealth because they 20No. 30020-0-III; 30021-8-III Courchaine v. CommonwealthLand Title Ins. Co. Finally, the trial court's conclusion that Commonwealth violated the CPA on account ofconfusion created as to the relationship between Commonwealth and Fidelity relies on findings that upon assuming responsibility for the claim, LisaLeick, acting for Fidelity, corresponded with Courchaine and first asked Courchaine to provide materials from Commonwealth, later stating that the claim submittedto Commonwealth '''isnow handled by Fidelity.'" CP at 166 (Findings ofFact 27,30). The trial court also found that 28. Janice Courchaine and [her mother] believedthey were working with a separate entity regardingthe claim. 29. Although Commonwealth is a subsidiary ofFidelity, they acted in such a mannerthat it was reasonable for the Plaintiffs to believe they were separate, unrelated entities. 31. [The newly-assigned adjuster], an employee and agent of Fidelity, led Janice Courchaineto believe that Fidelity
...was not affiliated with Commonwealth or Spokane County Title. 34. The Defendants played a shell game with the Plaintiffs by
... delay[ ] and obfuscation regarding who the Plaintiffs were dealing with. CP 166-67. Therecord reveals that Commonwealth is a subsidiary ofChicago Title Insurance Company, which is a subsidiary ofChicagoTitle and Trust Company, which is a subsidiary ofFidelity. They are reportedly separate companies, with separate operations,
couldn't get records from Commonwealth, the client had to? Orwas it to create a hoop and a delay for theplaintiff. It'sjustreally unclearto me. RP (Mar. 10,2011) at 236. 21No. 30020-0-III; 30021-8-III Courchaine v. Commonwealth LandTitle Ins. Co.
and generally do act independently ofeach other. Evidently they use a common claims processing center for handling insurance claims. The trial court did not find that the representations aboutthe two companies' independent operations were false, and apparently they were not. The findings do not support aviolation ofthe CPA. The findings are insufficientto support the conclusion that Commonwealth is liable for aviolation ofthe CPA. B. Fidelity's Liability In concluding that Fidelity was separately liable for violating the CPA, the trial courtrelied on (1) its failure to accept the claim and pay the loss once it assumed the claim adjustmentresponsibility, and (2) along with Commonwealth, misleading Courchaine into believingthe companies were separate legal entities acting independently. We have already addressed the insufficiency ofthe findings to sustain the second basis for CPA liability. As a threshold matter, Fidelity argues that any CPA liability on its partmust rely
on a theory ofvicarious liability or corporate disregard, because it had no direct involvement in the handling ofthe claim. Yet most ofthe claim handling evidence admitted at trial supports direct involvement by Fidelity. Two pieces ofelectronic mail admitted at trial were from Leick, who identified herselfin those communications as "Claims Administrator, Fidelity National Title Group." Ex. 16. In corresponding with 22No. 30020-0-III; 30021-8-II1 Courchaine v. Commonwealth Land Title Ins. Co. Courchaine, Leick statedthat the claim Courchaine submitted to Commonwealth is "now beinghandled by Fidelity National Title." Id. Leick also indicatedthat she did not have
access to the Commonwealthpaperwork and requested that Courchaine mail ittoher.ld
. Ample evidence supported a finding by the trial court that denial ofthe claim, ifan unfair trade practice, was the responsibility ofFidelity. The criteria for deciding whether an insurer is liable for bad faith failure to pay a claim are well settled. An insurer's denial ofcoverage withoutreasonablejustification constitutes an unfair act under the CPA. Kallevig, 114 Wn.2d at 917. "[R]efusal must be based upon reasonable grounds." Safeco Ins. Co. of Am. v. JMGRestaurants, Inc., 37 Wn. App. 1, 15, 680 P.2d 409 (1984). However, ifa denial ofcoverage is incorrectbut based on reasonable conduct ofthe insurer, it does not constitute an unfair trade practice. Villella v. Pub. Emps. Mut. Ins. Co., 106 Wn.2d 806,821,725 P.2d 957 (1986). Acts performed in good faith under an arguable interpretation ofexisting law do not constitute unfair conduct thatviolates the consumer protection law. Perry v. IslandSavs. & Loan Ass'n, 101 Wn.2d 795,810,684 P.2d 1281 (1984). The question ofwhether aparticular action gives rise to a CPA violation is a question oflaw. Seattle Pump Co. v. Traders & Gen. Ins. Co., 93 Wn. App. 743,752,970 P.2d 361 (1999). Thetrial court found that Fidelity acted in bad faith when it failed to abide by Kennard Goodman's initial assessment and coverthe claim. The court credited Goodman's testimony, as Courchaine's witness, thatLeick's explanation ofFidelity's 23No. 30020-0-III; 30021-8-II1 Courchaine 

### v. Commonwealth Land Title Ins. Co.
basis for denial was "horrible l " and that ifhe ",vas teaching a class and [her letter] was the final exam, [he] would give her a D orF." RP (Mar. 7,2011) at 24,40. The trial court found that "Fidelity knewthatthe Plaintiffs had a valid claim." CP at 167 (Finding ofFact 33). Itfound that the actions by Fidelity were "frivolous and unfounded" and there was "noreasonablejustification for denying the claim and a good faith mistake was not made." Id. Fidelity has not assigned error to these findings. The fact that an insurerreexamines its coverage position and rejects a claim after first accepting it is not, standing alone, insurance bad faith. But here, Fidelity does not
even attempt to defend several ofthe bases for denying the claim identified by Leick's letter denying coverage. And the two arguments that it offers in support ofdenying coverage fail 

### in light ofexisting law and the plainterms ofits policy, as discussed in section I.B and C, supra. Substantial evidence supports the trial court's finding ofa bad faith denial ofthe claim. 

### III Courchaine seeks attorney fees and costs on appeal as the prevailing party under the CPA. RCW 19.86.090. Commonwealth and Fidelity assert thatthe award ofattorney fees based on RCW 19.86.090 was erroneous and must be reversed becausethere was no violation ofthe CPA. The findings do not support Commonwealth's violation ofthe CPA, so the trial court's award ofattorney fees and costs against it is reversed. 24No. 30020-0-III; 30021-S-III Courchaine v. Commonwealth Land Title Ins. Co.
Where a statute or contract allows an award ofattorney fees at trial, an appellate court has authority to award fees on appeal. StandingRockHomeownersAssIn v. Misich, 106 Wn. App. 231, 247, 23 P.3d 520 (2001). The CPA provides a basis for an award of attorney fees for those portions ofthe appeal related to the CPA claim against Fidelity. Because the trial court will need to revisitthe amount ofattorney fees and costs awarded Courchaine for proceedings in the trial court, we directthat the amount offees and costs
on appeal be determined by the trial court at the same time. RAP IS.I(i). We reversejudgment against Commonwealth on the CPA claim, reversejudgment against Fidelity on the contract claim, and otherwise affirm. We award attorney fees and costs ofappeal against Fidelity, andremand for proceedings consistent withthis opinion. A majority ofthe panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuantto RCW 2.06.040.

# Sid~/?t- WE CONCUR:

Ko smo, C.J.

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