IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

WATER'S EDGE ASSOCIATES, a

Washington general partnership; KEY

PROPERTY SERVICES, INC., a

Washington corporation, WATER'S

EDGE HOMEOWNERS' ASSOCATION,

a Washington non-profit corporation,

Appellants,

FARMERS INSURANCE EXCHANGE,

a foreign corporation; MID-CENTURY

INSURANCE COMPANY, a foreign

corporation; and TRUCK INSURANCE

EXCHANGE, a foreign corporation,

Respondents.

No. 71066-4-

DIVISION ONE

UNPUBLISHED OPINION

FILED: March 3, 2014

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Becker, J. — A homeowners' association appeals from the dismissal on

summary judgment of an assigned bad faith claim against Farmers Insurance.

We affirm.

The background facts are set forth in the opinion in the previous case.

Water's Edge Homeowners Ass'n v. Water's Edge Assocs., 152 Wn. App. 572,

216P.3d 1110(2009), review denied, 168 Wn.2d 1019 (2010). We will not

repeat them here.
No. 71066-4-1/2

This court reviews an order granting summary judgment de novo,

performing the same inquiry as the trial court. Wilson Court Ltd. P'ship v. Tony

Maroni's, Inc., 134 Wn.2d 692, 698, 952 P.2d 590 (1998). Summary judgment is

properly granted when the pleadings, affidavits, depositions, and admissions on

file demonstrate that there is no genuine issue of material fact. CR 56(c). The

party opposing summary judgment may not rely on speculation or argumentative

assertions that unresolved factual issues remain—the nonmoving party must set

forth specific facts that show a genuine issue as to a material fact exists.

Herman v. Safeco Ins. Co. of Am.. 104 Wn. App. 783, 787-88, 17 P.3d 631

(2001).

Bad faith is a tort—plaintiffs must prove duty, breach, causation, and

damages. Mut. of Enumclaw Ins. Co. v. Dan Paulson Constr., Inc., 161 Wn.2d

903, 916, 169 P.3d 1 (2007). A liability insurer has two principal duties to its

insured: the duty to defend and the duty to indemnify. Mut. of Enumclaw, 161

Wn.2d at 914. In order to establish liability for bad faith, an insured or the

insured's assignee is required to show that the insurer breached one of these

duties and that the breach was unreasonable, frivolous, or unfounded. Kirk v. Mt.

Airy Ins. Co., 134 Wn.2d 558, 560, 951 P.2d 1124 (1998). Where an insurer's

conduct is reasonable, the insurer does not act in bad faith. Transcon. Ins. Co. v.

Wash. Pub. Utils. Dists.' Util. Svs., 111 Wn.2d 452, 470, 760 P.2d 337 (1988).

Here, the plaintiff is the Water's Edge Homeowners' Association, as

assignee of bad faith claims by the former owner of the condominium complex,

Water's Edge Associates, and the company they hired to perform maintenance
No. 71066-4-1/3

and repairs, Key Property Services. The Association claims that Farmers

breached its duty in four ways:

Issue 1: Did Farmers' failure to reserve rights for 10 to 12

months after appointment of counsel to represent its insured

constitute bad faith as a matter of law?

Issue 2: Did Farmers' failure to disclose several-liability

defenses under RCW 4.22.070, and 9-month delay in appointing

separate legal counsel for WEA and KPS constitute bad faith in

breach of its duty to defend?

Issue 3: Did Farmers' failure to provide coverage updates,

and failure to disclose the amount of indemnity available to settle,

constitute bad faith in breach of its duty to defend?

Issue 4: Did Farmers elevate its own financial interests

above potential risks to its insured, in breach of its duty to defend?

Brief of Appellant at 2.

Farmers responds that the bad faith claim must fail because, regardless of

the four allegations, (1) it is undisputed that Farmers fully defended and

indemnified both insureds in the underlying suit and (2) the insureds cannot

prove damages.

Farmers assigned counsel to defend its insureds. First Tom Heinrich,

then Bruce White represented them up through December 2006. At that point,

the Association had begun to collude with the insureds to set Farmers up for a

bad faith claim. As a result of the collusion, the two insureds insisted that White

had a conflict because he was representing both of them. White withdrew, and

Farmers appointed separate defense counsel for each insured. The collusive

parties excluded Farmers and White from the negotiation of the stipulated

settlement agreement. By the terms of this agreement, the insureds were

released in exchange for their contribution of $215,000. Farmers paid the

$215,000.
No. 71066-4-1/4

This case is simple. Farmers provided defense counsel to its insureds. At

the first mention of a possible conflict created by joint representation, Farmers

appointed separate counsel for each insured. When presented with a settlement

contract that would unconditionally release the insureds from all liability in

exchange for a cash payment of $215,000, Farmers paid $215,000. The record

is insufficient to establish breach of duty by Farmers.

The Association claims $90,000 in attorney fees incurred to hire outside

counsel as the only damages caused by the alleged bad faith of Farmers. Even

assuming that Farmers breached a duty to defend in one of the ways alleged by

the Association, the record is insufficient to prove that the conduct by Farmers

caused the insureds to hire outside counsel. Rather, the hiring of outside

counsel was a choice the insureds made as part of deliberate strategy developed

in collusion with the Association.

Because the plaintiffs do not establish breach or damages, summary

dismissal was appropriate.

Affirmed.

WE CONCUR:

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