~lAR 12 lOB 


COURT OF APPEALS, 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 COUNTY TITLE, ) 

) 

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 of the 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 of the following language: 

A majority of the 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 RCW 2.06.040. 

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 of Court 


W A State Court of Appeals. Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


JANICE COURCHAINE, a single person; ) 

and EVA VOSS, a single person, ) No. 30020-0-III 

) (consolidated with 

Respondents, ) No. 30021-8-III) 

) 

v. ) 

) 

COMMONWEALTH LAND TITLE ) 

INSURANCE COMPANY; and ) 

FIDELITY NATIONAL TITLE ) 

INSURANCE GROUP, ) 

) 

Appellants, ) 

) 

SPOKANE COUNTY TITLE, ) UNPUBLISHED OPINION 

) 

Defendant. ) 

SIDDOWAY, J. - Janice Courchaine and Eva Voss sued Commonwealth Land 

Title Insurance Company and its parent, Fidelity National Title Insurance Group, over an 

undisclosed easement burdening property whose title Commonwealth insured. 

Courchaine and Voss prevailed at trial. Commonwealth and Fidelity appeal, arguing that 

(1) Commonwealth did not breach the title policy and Fidelity has no liability for 

coverage; (2) Commonwealth did not breach the Consumer Protection Act (CPA), 
No. 30020-0-III; 30021-8-III 


Courchaine v. Commonwealth Land Title Ins. Co. 


chapter 19.86 RCW; and (3) even if Commonwealth did violate the CPA, Fidelity is not 

separately and additionally chargeable for that violation. 

We reverse the trial court's judgment against Fidelity on the policy and against 

Commonwealth under the CP A but otherwise affirm. 

FACTS AND PROCEDURAL BACKGROUND 

In September 2008, Janice Courchaine and Eva Voss entered into a purchase and 

sale agreement for real property located on Cataldo Avenue in Spokane Valley. A single 

family home existed on the west half of the very large lot and there was room to build a 

second, adjoining home on the east half, which suited the women's plans to build duplex 

homes for their families. 

Before closing, Courchaine and Voss obtained a preliminary commitment for title 

insurance from Commonwealth. They reviewed it, considered each of its exceptions, and 

found nothing that would frustrate their construction plans. Schedule B to the 

commitment, identifying specific exceptions to coverage, revealed an easement in favor 

of Modern Electric Company, their utility company. But the easement was consistent 

with the seller disclosure statement that disclosed a "power company 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 the property and acquired title by 

statutory warranty deed. 

2 

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

Courchaine v. Commonwealth Land Title Ins. Co. 

Shortly after purchasing the property, they learned from a neighbor that the 

Bonneville Power Administration (BP A) may have an as-yet unused easement across 

their property, which was confirmed when they attempted to get a building permit and 

were denied. They learned that construction on the east half of the lot would interfere 

with a 75-foot easement for transmission lines, in favor ofBPA. 

The women submitted a claim under their Commonwealth title policy, which did 

not list the BPA easement as an exception to coverage. Commonwealth originally 

accepted the claim, acknowledging coverage. But it then reassigned responsibility to 

Lisa Leick, a claims adjuster for Fidelity, its corporate parent. Leick thereafter notified 

the women in a four-page letter that their claim was not covered. 

Among other reasons offered by Leick for denying the claim was that the recorded 

plat for the Guthrie's Valley View 4th Addition, by which their lot was created in 1954, 

disclosed an easement along the eastern half of the lot for BPA transmission lines. The 

women did not see the 1954 plat before purchasing the property. 

Courchaine and Voss commenced the action below in March 2010. A three-day 

bench trial was conducted a year later. The trial court delivered its oral decision at the 

conclusion of the evidence, finding that the claim was covered and that both 

Commonwealth and Fidelity had violated the CPA. Its judgment imposed liability under 

the insurance policy against both Commonwealth and Fidelity. 

Commonwealth and Fidelity timely appealed. 

3 

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

Courchaine v. Commonwealth Land Title Ins. Co. 

ANALYSIS 

Commonwealth and Fidelity assign error to the trial court's conclusion that 

Courchaine's claim was covered by the Commonwealth policy, to its finding of a 

violation of the 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 of error to the coverage issue first, and thereafter their assignments of 

error to the findings of CPA violations. In discussing the parties' positions hereafter, we 

refer to Courchaine and Voss collectively as Courchaine, for simplicity. 

I 

Commonwealth was the issuer of the title insurance policy. Its first and second 

assignments of error essentially challenge the sufficiency of the evidence to establish a 

breach of its policy. It concedes that many of the facts are undisputed, focusing instead 

on what it argues are the trial court's unwarranted conclusions of law. 

When a trial court enters findings of fact and conclusions of law following a bench 

trial, review is limited to determining whether substantial evidence supports the findings, 

and if so, whether the findings support the trial court's conclusions of law and judgment. 

Saviano v. Westport Amusements, 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't ofRevenue, 120 Wn.2d 

935,941,845 P.2d 1331 (1993). 

4 

No. 30020-0-III; 3002l-8-III 


Courchaine v. Commonwealth Land Title Ins. Co. 


Commonwealth has not assigned error to any finding of fact, so our review is 

limited to determining whether the findings support the trial court's conclusions. Fenton 

v. Contemporary Dev. Co., 12 Wn. App. 345, 347, 529 P.2d 883 (1974). The 

interpretation of insurance policies is a question of law 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 of law states: 

1. The Commitment was a contract for title services between the 

Plaintiffs and the Defendants. The Defendants' Title policy was a 

statement of terms and conditions upon which the issuer was willing to 

issue its title policy. The Commitment failed to except the seventy five 

(75') foot easement. Therefore, Commonwealth breached the contract with 

the Plaintiffs. The Plaintiffs' damages based upon breach of contract are 

$23,500.00. 

Clerk's Papers (CP) at 167. 

A. Alleged Error in Finding a "Duty to Except" 

Commonwealth first argues that the trial court erred in concluding that the 

preliminary commitment was a contract for "title services" and that Commonwealth was 

required by its contract to except all matters of the public record that touched and 

concerned the land. It argues that this conclusion confuses title insurance with abstracts 

of title. It points out that title insurance is an indemnity contract and exceptions from 

coverage are for the benefit of the insurer, not the insured. For that reason, a title insurer 

is not required to except anything from coverage. Here, Commonwealth is correct. 

5 

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


Courchaine v. Commonwealth Land Title Ins. Co. 


The Washington Supreme Court recognized 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 of a title policy applicant and the 

service to be performed by title insurance companies. But it declined to decide the issue 

then, or in three later cases, deciding each case on other grounds. See Barstad v. Stewart 

Title Guar. Co., 145 Wn.2d 528,534-35,39 P.3d 984 (2002) (citing Shotlvell, 91 Wn.2d 

161; Transamerica Title Ins. Co. v. Johnson, 103 Wn.2d 409, 693 P .2d 697 (1985); 

Klickman v. Title Guar. Co. ofLewis County, 105 Wn.2d 526, 716 P.2d 840 (1986); 

Lombardo v. Pierson, 121 Wn.2d 577,852 P.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 between preliminary reports or 

commitments, on the one hand, and abstracts oftitle on the other, including to clarifY 

some of the 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 of the amendment, "title policy" means, by statute, "any written instrument, 

contract, or guarantee by means of which title insurance liability is assumed." RCW 

48.29.010(3)(a).1 A preliminary commitment "is not a representation of the condition of 

I A property purchaser is generally not required by law to obtain title insurance, 

but a mortgage lender typically requires a borrower to buy title insurance in order to 

protect the lender's interest in the property . WASH. STATE OFFICE OF THE INS. COMM' R, 

REpORT OF THE TITLE INSURANCE REVIEW TASK FORCE, TITLE INSURANCE IN 

6 

No. 30020-0-III; 30021-8-II1 


Courchaine v. Commonwealth Land 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 

48.29.01 0(3)(c) (1997)). 	By contrast, "abstract oftitle" means 

a written representation, provided under contract, whether written or oral, 

intended to be relied upon by the person who has contracted for the receipt 

ofthis representation, listing all recorded conveyances, instruments, or 

documents that, under the laws of the state of Washington, impart 

constructive notice with respect to the chain oftitle to the real property 

described. 

RCW 48.29.010(3)(b). The definition of "abstract of title" expressly provides that "[a]n 

abstract oftitle is not a title policy as defined in this subsection." ld. 

This 1997 amendment to RCW 48.29.010 "resolve[d] the obligations associated 

with a preliminary commitment and an abstract oftitle," and did so in favor of the 

position oftitle insurers, who had "'roundly den[ied] they have the abstracter's duty,'" 

and "'argue[d] that the preliminary commitment merely discloses what the policy 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 of anything 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). 

7 
No. 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 it had a duty to except it. 2 Yet even 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 look beyond that 

characterization error to the essence of the complaint, the evidence, and the findings. 

Breach of the duty to indemnify is the substance of Commonwealth's breach as framed 

by Courchaine's contract claim, the first claim for relief set forth in the complaint. It is 

the substance of Commonwealth'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 and persuasive. 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 should be accepted, correct? 


A Yes. That's what my letter said. 


Q And that is because the Bonneville Power Administration easement, 


the 75 foot easement, was not disclosed? 


2 Commonwealth has argued, in part, from the language of proposed conclusions 

that the court modified in some respects, in light of Commonwealth'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. 

8 

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


Courchaine v. Commonwealth Land Title Ins. Co. 


A It was not excepted from the policy and I-all the preliminary 

commitment does 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 of disclosure. 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 Ifthe title company didn't want to cover the loss resulting from that 

risk, yes, there should have been a separate exception for it. 

Report of Proceedings (RP) (Mar. 7,2011) at 18-19 (emphasis added). It was 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 at that point or believed at 

that point they didn't have a valid claim, that the plaintiff didn't have a 

valid claim. It seems so apparent that the plaintiff had a valid claim and 

yet they did playa shell game. 

RP (Mar. 10,2011) at 239 (emphasis added). 

On appeal, '''[w]e may affirm the [lower] court on any grounds established by the 

pleadings and supported by the record.'" In re Marriage ofRideout, 150 Wn.2d 337, 

358, 77 P.3d 1174 (2003) (alterations in original) (quoting Truck Ins. Exch. v. VanPort 

Homes, Inc., 147 Wn.2d 751, 766, 58 P.3d 276 (2002)). Commonwealth had no duty to 

except the BP A easement. But it did have a duty to indemnify Courchaine against any 

actual loss on account of the BPA easement ifit did not except it. 

9 

No. 30020-0-III; 30021-8-II1 


Courchaine v. Commonwealth Land Title Ins. Co. 


Courchaine made a claim and demonstrated actual loss. Given the pleadings, the 

evidence, and the gist of the trial courf s decision, judgment on the policy can be affirmed 

if the record supports Commonwealth's breach ofa contractual duty to indemnify. 

B. Alleged Exclusion by Description of Covered Land 

Commonwealth contends that the trial court made a further error in finding in 

Courchaine's favor on the coverage issue, however. It argues that the lot purchased by 

Courchaine was created by a plat, the title that it insured was defined in terms of the plat, 

any restrictions or easements identified on the plat were thereby part of the legal 

description of the property, and the BPA easement was reflected on the plat map. With 

the insured title already subject to any limitations notated on the plat, it argues, it needed 

to except only matters not disclosed by the plat. It makes a related argument that its title 

commitment and policy 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 of its policy cover, which stated Commonwealth's 

commitment to issue a policy of title insurance in favor of the proposed insured as owner 

or mortgagee 

of the estate or interest covered hereby in the land described or referred to 

in Schedule A. upon payment of the premiums and charges therefor; all 

subject to the exceptions and conditions and stipulations shown herein, the 

Exclusions from Coverage, the Schedule B exceptions, and the conditions 

and stipulations of the policy or policies requested. 

CP at 33. 

10 

No. 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 of Plats, page 62, records of Spokane 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 

of her title is readily addressed. In Shotwell, the conveyance to the insured had 

concluded its description of the land conveyed with the language, "'EXCEPT right 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, must be sufficient to 

exclude the same easement from coverage. The court disagreed, holding that "[i]n 

11 

No. 30020-0-III; 3002l-8-III 

Courchaine v. Commonwealth Land Title Ins. Co. 

construing a policy of insurance the rules of conveyancing 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 or plat Thereof now of record ... to which reference is here made for all 

pertinent purposes,'" then an easement for a waterline identified on the recorded plat was 

excluded from the terms of the 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 contemplated the purposes of the deed. The description ofthe land in 

the policy 'was for the purpose ofidentifYing the land covered by the policy 

and not, as appellant contends, for the purpose oflimiting the insurance 

protection purchased. In our opinion, this was the clear and unambiguous 

meaning of the policy. To hold otherwise would, in effect, require 

appellees, who have purchased title insurance, to be their own insurer in so 

far as their title to the land, in the respect here under consideration, is 

concerned. Such a result would not be in keeping with the principal 

purpose of the policy ...." 

Shotwell, 91 Wn.2d at 169-70 (quoting Lemmon, 417 S.W.2d at 431-32); cf Denny'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 

12 

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

Courchaine v. Commonwealth Land Title Ins. Co. 

excluded by the policy's description of land, because other provisions of the policy 

reasonably implied coverage). 

There is an additional reason why this argument fails in light of the terms of 

Commonwealth's policy. Its commitment states that the 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 of easements. 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 that the land 

described by its policy was already subject to the BPA easement is irreconcilable with its 

offer to 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 of the 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, if any, based upon race, color, 

religion, sex, sexual orientation, familial status, marital status, disability, 

handicap, national origin, ancestry, or source of income, as set forth in 

applicable state or federal laws, except to the extent that said covenant or 

restriction is permitted by applicable law. 

13 
No. 30020-0-III; 30021-8-III 

Courchaine v. Commonwealth Land Title Ins. Co. 

CP at 39. 

Courchaine argues that the trial court's findings adopt trial testimony from 

Commonwealth's former employee, Goodman, that easement and restriction are "two 

different terms of art" and that "there is a difference between restrictions as noted in 

schedule B # 7 of the preliminary title report and easements." CP at 164, 166 (Findings 

of Fact 16,25). Commonwealth has not assigned error to these two findings, which are 

verities on appeal. 

Even if we examine the meaning of "restriction" as an issue of insurance policy 

construction and therefore an issue of law, Commonwealth's position is not persuasive. 

"Restriction" is not defined by either the commitment or the policy. If there were no 

policy, its meaning in the commitment might be ambiguous. But the policy treats 

easements and restrictions as separate and distinct. "Easement" is defined by the policy, 

to mean "the right of someone else to use the Land for a special purpose." CP at 50. 

"Restriction," on the other hand, is used in the policy to refer to a rule or condition 

for the owner's use ofthe land. The policy treats "restrictions" as things that can be 

violated or enforced. One of the covered risks under the policy is: 

Your Title is lost or taken because of a violation of anv ... restriction, 

which occurred before You acquired Your Title, even if the covenant, 

condition or restriction is excepted in Schedule B. 

CP at 46 (Covered Risk 13) (emphasis added). Another is: 

14 
No. 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, or national origin. 

Id. (Covered Risk 23) (emphasis added). 

Easements are addressed separately, as presenting distinct risks. Consistent with 

the policy's definition, "easement" is used to refer to rights of other parties. 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 if the easement or 

building set-back line is excepted in Schedule B. 

Your existing structures are damaged because of the exercise of a right to 

maintain or use any easement affecting the Land, even if the easement is 

excepted in Schedule B. 

Id. (Covered Risks 20, 21). 

Interpretation of insurance policies is a question of law; the policy is construed as 

a whole with the court giving force and effect to each clause in the policy. Am. Star Ins. 

Co. v. Grice, 121 Wn.2d 869, 874,854 P.2d 622 (1993). The language of an insurance 

policy is to be interpreted in accordance with the way it would be understood by the 

average person, rather than in a technical sense. Id. (citing Boeing 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. 

15 

No. 30020-0-III; 30021-8-111 


Courchaine v. Commonwealth Land 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 if we were to find an 

ambiguity, well-settled principles of insurance policy construction would require us to 

give the commitment and policy a meaning and construction favorable to the insured. 

Bordeaux, Inc. v. Am. Safety Ins. Co., 145 Wn. App. 687, 694,186 PJd 1188 (2008). 

Coverage exclusions "are contrary to the fundamental protective purpose of insurance," 

"will not be extended beyond their clear and unequivocal meaning," and "should also be 

strictly construed against the insurer." Stuart v. Am. States Ins. Co., 134 Wn.2d 814, 818­

19,953 P.2d 462 (1998). 

Because Commonwealth's policy did not exclude or except the 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 of her breach of contract claim. 

D. Liability of Fidelity for the Policy 

The trial court also imposed liability on Fidelity to indemnify Courchaine against 

loss under the policy. Fidelity assigns error to that part of Courchaine's judgment, 

pointing out that Courchaine presented no evidence or argument 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 her response. 

16 
No. 30020-0-III; 30021-8-III 

Courchaine v. Commonwealth Land Title Ins. Co. 

To the extent that the judgment imposes liability against Fidelity under the 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 breached the contract with the Plaintiffs. The Plaintiffs' damages based 

upon breach of contract are $23,500.00." CP at 167. There being no evidence ofa basis 

for Fidelity's liability for Commonwealth's policy, that portion of the judgment against it 

must be reversed. 

II 

Commonwealth and Fidelity also challenge the trial court's conclusions that they 

violated the CPA. The CPA provides that "[ u ]nfair methods of competition and unfair or 

deceptive acts or practices in the conduct of any trade or commerce are hereby declared 

unlawful" and provides for a private right of action. RCW 19.86.020, .090. To prevail 

on a CPA claim alleging an unfair or deceptive act or practice, the plaintiff must establish 

that (1) the defendant has engaged in an unfair or deceptive act or practice, (2) in trade or 

commerce, (3) that impacts the public interest, (4) the plaintiff has suffered injury in his 

or her business or property, and (5) a causal link exists between the 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 of the evidence to support an unfair or deceptive act or practice that 

impacts the public interest. 

17 
No. 30020-0-III; 30021-8-III 


Courchaine v. Commonwealth Land Title Ins. Co. 


The public interest impact element may be satisfied per se, by showing that a 

statute has been violated that contains a specific legislative declaration of public interest 

impact. Id. at 791. In RCW 48.01.030 the legislature has provided that "[tJhe business of 

insurance is one affected by 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/Omaha Ins. Co., 90 Wn.2d 355,359 & n.1, 581 P.2d 1349 

(1978). The public 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 or practice that the legislature has declared to constitute 

an unfair or deceptive act in trade or commerce. Hangman Ridge, 105 Wn.2d at 786. In 

addition, and because the CPA expressly applies to "actions and transactions prohibited 

or regulated under the laws administered by the insurance commissioner," an unfair trade 

practice may be established per se by showing that it has been declared an unfair practice 

in regulations adopted by the insurance commissioner. RCW 19.86.170 (emphasis 

added); Indus. Indem. Co. a/the Nw., Inc. v. Kallevig, 114 Wn.2d 907,920,792 P.2d 520 

(1990). The insurance commissioner has declared a number of claims settlement 

practices unfair or deceptive in WAC 284-30-330. The trial court's findings do not 

include a finding of a per se unfair trade practice. 

Where a plaintiff cannot point to a statute or regulation declaring an act or practice 

unfair or deceptive, she may still independently demonstrate that the practice is unfair or 

18 

No. 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 'the understanding that the 

actor misrepresented something of material importance.'" Stephens v. Omni Ins. 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'd in part on other grounds, 138 

Wn.2d 248, 264,978 P.2d 505 (1999», aff'd sub nom. Pangv. Farmers Ins. Co., 166 

Wn.2d 27, 204 P.3d 885 (2009). 

The trial court's second and third conclusions of law identified the following acts 

or practices that it concluded violated the CPA: 

2. Defendant Commonwealth violated the [CPA] by unfair or 

deceptive acts or practices, namely failing to include and except in the title 

insurance policy the easement filed of record 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 dated to October 17, 2008. 

3. Defendant Fidelity failed to pay the Plaintiffs' claim when said 

failure to except the BPA easement was brought to Fidelity'S attention. 

Further, both Defendants misled the Plaintiffs into believing that they were 

two separate legal entities acting independent of one another. 

CP at 167-68. 

A. Commonwealth's Liability Under the CPA 

We first address Commonwealth's liability under the CPA. In concluding that 

Commonwealth was liable for trebled damages, attorney fees, and costs under the CPA, 

19 

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


Courchaine v. Commonwealth Land Title Ins. Co. 


the trial court relied upon (1) Commonwealth's failure to identify the BP A easement as 

an exception to coverage in its commitment and policy; (2) its failure to issue the final, 

back-dated title policy for six months; and (3) along with Fidelity, its misleading 

Courchaine into believing that the two companies were separate legal entities acting 

independent of one another. 

As already addressed, Commonwealth had no duty to identify the BP A easement 

as an exception to coverage in its commitment and policy. Given the clear language of 

RCW 48.29.01 0(3)(c) that a preliminary commitment "is not a representation as to the 

condition of the title," Commonwealth's nondisclosure of the 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 or why 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 receipt of the policy might have been to create obstacles or inconvenience for 

the insured.3 Review of the record reveals that the only testimony addressing the delay 

noted the fact of the delay, but without indicating that it presented 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 ofa sudden "I'm the 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 a total mystery. Was that meant to deceive or infer to the 

plaintiff that Fidelity was not affiliated with Commonwealth because they 

20 

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


Courchaine v. Commonwealth Land Title Ins. Co. 


Finally, the trial court's conclusion that Commonwealth violated the CPA on 

account of confusion created as to the relationship between Commonwealth and Fidelity 

relies on findings that upon assuming responsibility for the claim, Lisa Leick, acting for 

Fidelity, corresponded with Courchaine and first asked Courchaine to provide materials 

from Commonwealth, later stating that the claim submitted to Commonwealth '''is now 

handled by Fidelity.'" CP at 166 (Findings of Fact 27,30). The trial court also found 

that 

28. Janice Courchaine and [her mother] believed they were working 

with a separate entity regarding the claim. 

29. Although Commonwealth is a subsidiary ofFidelity, they acted 

in such a manner that 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 Courchaine to 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. 

The record reveals that Commonwealth is a subsidiary of Chicago Title Insurance 

Company, which is a subsidiary ofChicago Title and Trust Company, which is a 

subsidiary of Fidelity. They are reportedly separate companies, with separate operations, 

couldn't get records from Commonwealth, the client had to? Or was it to 

create a hoop and a delay for the plaintiff. It's just really unclear to me. 

RP (Mar. 10,2011) at 236. 

21 
No. 30020-0-III; 30021-8-III 

Courchaine v. Commonwealth Land Title Ins. Co. 

and generally do act independently of each other. Evidently they use a common claims 

processing center for handling insurance claims. 

The trial court did not find that the representations about the two companies' 

independent operations were false, and apparently they were not. The findings do not 

support a violation of the CPA. 

The findings are insufficient to support the conclusion that Commonwealth is 

liable for a violation of the CPA. 

B. Fidelity's Liability 

In concluding that Fidelity was separately liable for violating the CPA, the trial 

court relied on (1) its failure to accept the claim and pay the loss once it assumed the 

claim adjustment responsibility, and (2) along with Commonwealth, misleading 

Courchaine into believing the companies were separate legal entities acting 

independently. We have already addressed the insufficiency of the findings to sustain the 

second basis for CPA liability. 

As a threshold matter, Fidelity argues that any CPA liability on its part must rely 

on a theory of vicarious liability or corporate disregard, because it had no direct 

involvement in the handling of the claim. Yet most of the claim handling evidence 

admitted at trial supports direct involvement by Fidelity. Two pieces of electronic mail 

admitted at trial were from Leick, who identified herself in those communications as 

"Claims Administrator, Fidelity National Title Group." Ex. 16. In corresponding with 

22 

No. 30020-0-III; 30021-8-II1 


Courchaine v. Commonwealth Land Title Ins. Co. 


Courchaine, Leick stated that the claim Courchaine submitted to Commonwealth is "now 

being handled by Fidelity National Title." Id. Leick also indicated that she did not have 

access to the Commonwealth paperwork and requested that Courchaine mail ittoher.ld. 

Ample evidence supported a finding by the trial court that denial of the claim, if an unfair 

trade practice, was the responsibility of Fidelity. 

The criteria for deciding whether an insurer is liable for bad faith failure to pay a 

claim are well settled. An insurer's denial of coverage without reasonable justification 

constitutes an unfair act under the CPA. Kallevig, 114 Wn.2d at 917. "[R]efusal must be 

based upon reasonable grounds." Safeco Ins. Co. ofAm. v. JMG Restaurants, Inc., 37 

Wn. App. 1, 15, 680 P.2d 409 (1984). However, if a denial of coverage is incorrect but 

based on reasonable conduct of the 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 of existing law do not constitute 

unfair conduct that violates the consumer protection law. Perry v. Island Savs. & Loan 

Ass'n, 101 Wn.2d 795,810,684 P.2d 1281 (1984). The question of whether a particular 

action gives rise to a CPA violation is a question of law. Seattle Pump Co. v. Traders & 

Gen. Ins. Co., 93 Wn. App. 743,752,970 P.2d 361 (1999). 

The trial court found that Fidelity acted in bad faith when it failed to abide by 

Kennard Goodman's initial assessment and cover the claim. The court credited 

Goodman's testimony, as Courchaine's witness, that Leick's explanation of Fidelity's 

23 

No. 30020-0-III; 30021-8-II1 


Courchaine v. Commonwealth Land Title Ins. Co. 


basis for denial was "horriblel " and that ifhe ",vas teaching a class and [her letter] was 

the final exam, [he] would give her a D or F." RP (Mar. 7,2011) at 24,40. 

The trial court found that "Fidelity knew that the Plaintiffs had a valid claim." CP 

at 167 (Finding of Fact 33). It found that the actions by Fidelity were "frivolous and 

unfounded" and there was "no reasonable justification 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 insurer reexamines 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 of the bases for denying the claim identified by Leick's 

letter denying coverage. And the two arguments that it offers in support of denying 

coverage fail in light of existing law and the plain terms of its policy, as discussed in 

section I.B and C, supra. Substantial evidence supports the trial court's finding of a bad 

faith denial of the 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 that the award of attorney 

fees based on RCW 19.86.090 was erroneous and must be reversed because there was no 

violation of the CPA. 

The findings do not support Commonwealth's violation of the CPA, so the trial 

court's award of attorney fees and costs against it is reversed. 

24 
No. 30020-0-III; 30021-S-III 

Courchaine v. Commonwealth Land Title Ins. Co. 

Where a statute or contract allows an award of attorney fees at trial, an appellate 

court has authority to award fees on appeal. Standing Rock Homeowners Ass In 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 of the appeal related to the CPA claim against Fidelity. 

Because the trial court will need to revisit the amount of attorney fees and costs awarded 

Courchaine for proceedings in the trial court, we direct that the amount of fees and costs 

on appeal be determined by the trial court at the same time. RAP IS.I(i). 

We reverse judgment against Commonwealth on the CPA claim, reverse judgment 

against Fidelity on the contract claim, and otherwise affirm. We award attorney fees and 

costs of appeal against Fidelity, and remand for proceedings consistent with this opinion. 

A majority of the 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 RCW 

2.06.040. 

Sid~/?t- WE CONCUR: 

Ko smo, C.J. 

25