FILED
FEB. 6, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
THELMA, KARL, LORI, and KARIN )
KLOSTER, ) No. 30546-5-III
)
Appellants, )
)
v. )
) UNPUBLISHED OPINION
SCHENECTADY ROBERTS, PACIFIC RIM )
BROKERS, INC., a corporation, AMERI- )
TITLE, INC., a corporation, and DOES ONE )
through FIFTY, inclusive, )
)
Respondents, )
)
FIRST AMERICAN TITLE INSURANCE )
COMPANY, a corporation, )
)
Respondent and )
Cross Appellant. )
)
MICHAEL MOORE, )
)
Defendant. )
FEARING, J. - Karl and Thelma Kloster, and Karl's parents, Lori and Karin
Kloster (Klosters) bought a vacant lot (Lot 1) in rural Klickitat County thinking they held
an access easement over property bordering to the south. The easement, however, was
not signed by the grantor, and the parties to this suit assume the easement does not bind
the neighboring property. When the neighboring property owner blocked use of the
easement, the Klosters, despite having an alternate access route, filed suit for
No. 30546-5-II1
Kloster v. Roberts
misrepresentation, against their seller of Lot I, the real estate broker, their title company,
and the title company's local agent. They sought additional damages from the title
company and its agent and underwriter for breach of the insurance contract, breach of the
duty to defend and indemnify, bad faith, and violation of the Consumer Protection Act
(CPA) chapter 19.86 RCW. The title company counterclaimed for a declaratory
judgment that its policy provided no coverage. After a series of summary judgment
dismissals of some defendants and a jury trial on the remaining claims, judgment was
entered for all defendants except the title company, which was ordered to pay the cost to
cure the lack of an easement and some of the Klosters' attorney fees related to the title
insurance coverage issue.
The Klosters appeal most of the trial court rulings. Among other assignments of
error, the Klosters contend the trial court erred (1) in dismissing their claim, on summary
judgment, against the seller of the property; (2) in denying their motion to include the
developer in his individual capacity as a necessary party; (3) in dismissing the broker as
successor in interest of the developer; (4) in concluding that the title company's agent
was not a coinsurer of their title; (5) in ruling that there was insufficient evidence that the
agent was negligent; (6) in concluding that the title company did not breach the title
policy, the unfair claims settlement practices regulations, or the CPA; (7) in dismissing
the Klosters' claims for noneconomic damages and all economic damages except "cost of
cure"; (8) in awarding the broker and the seller attorney fees; and (9) in denying the
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No. 30S46-S-III
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Klosters' full claim for attorney fees from the title company. The title company cross
appeals, contending the trial court erred (1) in ruling that the Klosters had coverage under
the title policy for a purported access easement, (2) in allocating $9,000 against the title
company as a cost of cure, and (3) in awarding attorney fees to the Klosters.
In a marathon opinion necessitated by the many issues raised on appeal, we affirm
the trial court's rulings in favor of the seller, real estate broker, and developer principally
on the ground that no representation was given to the Klosters concerning an access
easement. We reverse the judgment entered against the title company on the ground that
its policy did not cover the loss.
FACTS
Since the trial court dismissed some of the Klosters' claims on summary judgment
and the jury ruled on other claims of the Klosters, this outline of facts contains, where
respectively appropriate, testimony from summary judgment affidavits and from trial.
In 1978, Alvin (Fred) Heany created short plat WS-146 on a 23-acre parcel he
owned in Klickitat County.l The short plat consisted of four tracts, each subject to
easements and use reservations. Tract 1, north of Tract 2, was divided into Lots 1 and 2.
In addition to owning the land, Heany was a real estate broker, who operated under the
name of Pacific Rim Properties (Pacific Rim), a sole proprietorship.
1 A copy of the short plat is appended to the opinion.
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Kloster v. Roberts
In 1979, Fred Heany filed an application for a long plat subdivision called Pacific
Rim Estates, which included land found within short plat WS-146. The map attached to
the long plat application showed a 30-foot wide access easement along the northern
border of Tract 2 for the benefit of the owners of Lots 1 and 2, Tract 1, as well as a 30
foot wide easement along the southern border of Lots 1 and 2 for the benefit of Tract 2.
The 30-foot wide easement across the southern border of Lot 2 also benefited Lot 1. A
60-foot width is required by Klickitat County for a public right-of-way.
Klickitat County insisted, for a long plat, that all property owners affected by
rights-of-way sign the plat and join in the dedication oftheir property for roads. In 1981,
pending final approval of the long plat application, Heany sold, on contract, Tract 2 to
Michael Fester, subject to "[t]hose easements and reservations of record" on the short
plat. Ex. 52. Fester agreed with Heany to permit an access easement across the northern
30-feet of Tract 2.
In November 1981, owners of property within the Pacific Rim subdivision signed
the long plat application, which included a dedication of access easements. The owner of
Lot 2, Tract 1, signed the application acknowledging his dedication of an easement along
his southern border for the benefit of Lot 1 and other land. Robert Blades, a real estate
salesperson for Pacific Rim, notarized the signatures, including Fred Heany's signature.
The signature of Michael Fester, owner of Tract 2, however, was inadvertently omitted.
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No. 30546-5-111
Kloster v. Roberts
Klickitat County approved the long plat application and Heany recorded the plat in
December 1981 without Fester's signature.
In 1982, Fred Heany and Robert Blades incorporated Pacific Rim Properties as
Pacific Rim Brokers, Inc. (PRB). Heany transferred his ownership interest in PRB to
Blades one year later.
Fred Heany's fulfillment deed to Michael Fester, for Tract 2, was recorded in 1983
without mention of the long plat or the easement across the northern boundary of the
land. Fester sold Tract 2 to Larry and Rhonda Rickey in 2000. The map attached to the
Rickeys' title insurance policy did not show an easement encumbering the northern 30
feet of their land. The Rickeys constructed and used a road, along their northern
boundary, as a driveway.
Defendant Schenectady Roberts inherited Lots 1 and 2, Tract 1, from her father,
who purchased the lots from Fred Heany. In 2005, Roberts sold, for $38,000, Lot 1 to the
Klosters. Karl and Thelma Kloster had previously bought and sold multiple properties.
PRB served as listing agent for the sale of Lot 1. Adrian Palmer, an agent of PRB, acted
as buying agent of the Klosters.
At the time of the sale and during the events leading to the sale, Roberts resided in
California. She had no direct contact with the Klosters. Roberts had no knowledge of
any easements or the lack of easements, nor was she aware of any representations made
byPRB.
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No. 30546-5-III
Kloster v. Roberts
PRB agent Adrian Palmer showed the land to Thelma and Karl Kloster. During
the showing, according to deposition testimony of Palmer, he "shared his feelings with
both Karl and Thelma that there was an easement." Palmer provided to Karl Kloster a
copy of the plat map that showed a 30-foot access easement along the northern edge of
Tract 2, and Palmer represented to Karl Kloster that the plat map was accurate.
During the showing, the Klosters and Adrian Palmer noticed a barbed wire fence
along the boundary of Tract 2 and Lot I that blocked access to the easement on the north
end of Tract 2. Palmer still believed an easement existed across the northern part of Tract
2 and extended across the fence line, but he stated to the Klosters that the fence might be
a problem. The Klosters were then still contemplating whether to purchase the property.
The Klosters never thereafter asked Palmer about the fence.
Adrian Palmer shared his concern about the barbed wire fence with PRB' s Robert
Blades. Blades told Palmer that he would contact the Rickeys. Blades left the Rickeys a
telephone message, but never spoke with them. Palmer did not tell the Klosters of his
conversation with Blades.
As part of the sale, Schenectady Roberts and the Klosters signed, in January 2005,
a Vacant Land Purchase and Sale Agreement (VLPSA). The agreement provided for
attorney fees and costs to the prevailing party "[i]fthe Buyer, Seller, or any real estate
licensee or broker involved in this transaction is involved in any dispute relating to this
transaction." Clerk's Papers (CP) at 3744. The VLPSA also read that "[a]ll terms of this
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No.30546-5-II1
Kloster v. Roberts
Agreement, which are not satisfied or waived prior to closing, shall survive closing.
These terms shall include, but not be limited to, representations and warranties, attorneys
fees and costs, ... etc." CP at 3745.
Defendant Ameri-Title, Inc., serving as First American Title Insurance Company's
agent, conducted a title search for Lot 1 and issued a preliminary commitment for title
insurance. The preliminary title commitment included an appended partial plat map. The
map showed a 30-foot access easement along the northern border of Tract 2 and 30-foot
access easements along the southern borders of Lots 1 and 2. As may be surmised,
neither Michael Fester nor his successors in interest, the Rickeys, signed a document
agreeing to the easement across Tract 2, and the lack of written approval gives rise to this
suit. Also, if the Klosters deemed the 30-wide easement across the southern end of Lot 2,
Tract 1, to be sufficient, this suit may not have ensued, despite the lack of an easement
I
across the northern boundary of Tract 2.
Printed across the top of the map attached to the commitment was a disclaimer:
ANY SKETCH ATTACHED HERETO IS DONE SO AS A COURTESY
ONL Y AND IS NOT PART OF ANY TITLE COMMITMENT OR
POLICY. IT IS FURNISHED SOLELY FOR THE PURPOSE OF
ASSISTING IN LOCATING THE PREMISES AND FIRST AMERICAN
EXPRESSL Y DISCLAIMS ANY LIABILITY WHICH MAY RESULT
FROM RELIANCE MADE UPON IT.
Ex. 94, at 34. At trial, Karl Kloster testified, "I know the difference between a sketch and
a short plat map, and I know that is a sketch. That's provided as a courtesy to locate the
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No. 30546-5-111
Kloster v. Roberts
property, and that's it." Report of Proceedings (RP) at 1074. Mr. Kloster was asked ifhe
relied on the short plat sketch attached to his title policy as a representation of what was
covered in the policy. He explained that he did not rely on the sketch of the plat because
it had a disclaimer at the top.
The agency contract between Ameri-Title and First American Title provided that
Ameri-Title was responsible for the first $3,500 of any loss on any First American policy
issued by Ameri-Title. Ameri-Title was instructed by First American to verifY whether
access easements are properly created for any property on which title insurance was
requested, and if they were not, to so note in the preliminary commitment and in the title
policy by use of a special exception. Ameri-Title did not determine whether access
easements were properly created for Lot 1 and did not note in the preliminary
commitment or in the title policy issued to the Klosters that the purported access
easement across Tract 2 was defective.
The First American Title insurance policy provided coverage for loss due to a lack
of a right of access to Lot 1, but did not provide coverage for any specific easement. The
policy language read, in part:
FIRST AMERICAN TITLE INSURANCE COMPANY ... insures ...
against loss or damage, not exceeding the Amount of Insurance stated in
Schedule A, sustained or incurred by the insured by reason of:
4. Lack of a right of access to and from the land.
The Company will also pay the costs, attorneys' fees and expenses
incurred in defense of the title, as insured, but only to the extent provided
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No. 30546-5-II1
Kloster v. Roberts
in the Conditions and Stipulations.
Ex. 95. Schedule A identified only Lot 1. The amount of insurance was $38,000.
Schedule B of the title policy listed exclusions from coverage, including this
general exception: "Easements, claims of easement or encumbrances which are not
shown by the public records." Ex. 95, at 5. Specific exceptions related to the unrecorded
easement on the northern 30 feet of Tract 2 are:
5. Easements, Conditions, Restrictions and Reservations, including
the terms and provisions thereof, as contained in Short Subdivision
filed as Auditor's File No. 167997, Klickitat County Short Plat Records.
8. Conditions, Restrictions, Easements for roadways and Utilities and
disclosure regarding maintenance of roads, including the terms and
provisions thereof, as shown on the Plat recorded December 1, 1981 in
Book 5, Pages 31 and 32, Klickitat County Plat Records.
Ex. 95, at 6. The plat sketch attached to the title policy is a portion of the short plat map
in Auditor's File No. 167997. Exclusion 8 refers to easements for roadways as shown on
the plat in Book 5, pages 31 and 32, of the county records, which is the same plat referred
to in Schedule A's description of the property.
Under Section 4 in the title insurance policy, First American agreed to defend
against third party claims adverse to the title as follows:
Upon written request by the insured ... , the Company, at its
own cost and without unreasonable delay, shall provide for the defense
of an insured in litigation in which any third party asserts a claim adverse
to the title or interest as insured, but only as to those stated causes of
action alleging a defect, lien or encumbrance or other matter insured
against by this policy . . .. The Company will not pay any fees, costs
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No. 30546-5-III
Kloster v. Roberts
or expenses incurred by the insured in the defense of those causes of
action which allege matters not insured against by this policy.
Ex. 95.
When the Klosters began using the Rickeys' driveway to drive to Lot 1, the
Rickeys blocked access over Tract 2 and reported the Klosters for trespass. Karl Kloster
conceded that he could build an access road to his property across land not found in Tract
2. Nevertheless, he would not have bought the property ifhe knew he needed to build the
road in an alternate location, because the terrain would render the road costly. Karl
Kloster, who has experience in building roads, testified the costs could approach
$20,000.
The Klosters complained to Ameri-Title about the missing easement and Ameri-
Title recommended that the Klosters consult an attorney. On March 25,2005, the
Klosters submitted a claim to title insurer, First American Title. The Klosters made a
demand upon Ameri-Title and First American to defend their interest in the unrecorded
easement across Tract 2 from the adverse claims of the Rickeys, who were also insured
by First American.
First American began its iilVestigation immediately. On its initial claim report,
First American wrote that the Klosters allege an "irregularity/omission-agent." Ex. 107.
The description referenced an attached letter from the Rickeys' attorney describing the
conflicting maps shown on the Klosters' and the Rickeys' title policies. The employee
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No. 30S46-S-III
Kloster v. Roberts
who prepared the initial claim report testified that the appellation "irregularity/omission"
best fit the situation. She explained that the only choices she had for describing the claim
were "error omission by employee, error omission by agent, or company practice risk,"
and it appeared the Klosters were claiming that an agent was responsible. RP at 7S8.
On March 31, 2005, First American Title sent a letter to the Klosters' attorney,
announcing its decision to deny the claim. In the letter, First American explained that the
legal description of the insured property did not include appurtenant easements. The
company wrote that the policy covered loss by reason of a lack of a right of access, but
the Klosters had a right of access over the south 30 feet of Lot 2, and the policy did not
cover an easement over Tract 2.
The Klosters filed suit in April200S. The complaint caption included a listing of
defendants "DOES ONE through FIFTY." CP at 1. On September 10,2007, more than
two years after filing of the complaint, the Klosters served a summons and complaint on
Fred Heany as "Doe One." CP at IOS6, 1059. Heany moved to quash the summons,
asserting that he was known by name and capacity by the Klosters even before the suit
was filed, that it was therefore inappropriate to consider him a recently discovered party,
and that the Klosters had not properly moved to amend the complaint, citing CR 4(h), CR
lO(a)(2), and CR IS. The summons was quashed in April 2008. Thereafter the Klosters
moved pursuant to CR 10(a)(2), CR IS(c), and CR 21 to substitute Fred Heany as
Defendant Doe One. The trial court also denied this motion.
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No. 30546-5-III
Kloster v. Roberts
During the pendency of suit, the parties filed multiple motions, including motions
for summary judgment and for limitation of damages. The trial court dismissed Michael
Moore, the agent of Ameri-Title, with prejudice, dismissed the claims against seller
Schenectady Roberts on summary judgment, and dismissed the claims against Ameri-
Title as a matter oflaw under CR 50(a). Finding that the map appended to the
preliminary commitment and the final title insurance policy created an ambiguity
concerning coverage of the apparent easement over Tract 2, the trial court concluded as a
matter of law that the title insurance policy covered the unrecorded easement.
The jury trial began October 31, 2011. After conclusion of the Klosters' case, the
trial court dismissed the claims against PRB and First American for fraudulent
misrepresentation, fraudulent concealment, and bad faith. The court also concluded as a
matter of law that PRB did not have successor liability for Fred Heany' s actions as
developer of Pacific Rim Estates. First American and PRB rested without presenting
additional testimony.
The jury concluded that PRB was not liable for negligent misrepresentation, that
the Klosters failed to minimize their loss, and that the Klosters were 100 percent at fault.
The jury also found, however, that the cost to cure the defect was $9,000. The trial court
entered judgment against First American for the $9,000 "cost of cure." The trial court
entered an additional judgment against First American for the Klosters' presettlement
offer of attorney fees and costs related to their insurance coverage claims, offset by First
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No.30546-5-III
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American's costs incurred after the settlement offer expired, pursuant to CR 68, for a
totalof$33,715.35. The Klosters were ordered to pay Roberts and PRB $269,918.08 in
attorney fees and costs.
ROBERTS LIABILITY
In their complaint, the Klosters alleged that Schenectady Roberts affirmatively
represented, through her real estate agent PRB, that the acreage was suitable for
residential development and without impairment of access easements. In the alternative,
the Klosters allege that Roberts held an obligation to affirmatively disclose the existence
of the "defective" access easement. CP at 9. In support of the allegations and in
opposition to summary judgment motions, Thelma Kloster and Karl Kloster filed nearly
identical affidavits stating that real estate agents at PRB never warned her or him of any
defect in an access easement. The plat map that Adrian Palmer gave to Karl Kloster,
when walking the property, is attached to the Klosters' counsel's affidavit. The plat
showed an access easement across the north 30 feet of Tract 2.
The Klosters sued Schenectady Roberts for negligent and intentional
misrepresentation and fraudulent concealment, three species of misrepresentation. In
response to a summary judgment motion, the Klosters added a claim of innocent
misrepresentation, another species of misrepresentation. Claims of misrepresentation are
I
.1
1
no longer barred by the rejected economic loss rule, but permitted by the independent
duty doctrine. Austin v. Ettl, 171 Wn. App. 82, 87 n.6, 286 P.3d 85 (2012). Because the
I
1
l
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No. 30546·5·III
Kloster v. Roberts
duty to refrain from fraud is independent of the contract, the independent duty doctrine
permits a party to pursue a fraud claim even if a contract exists. Jackowski v. Borchelt,
174 Wn.2d 720, 738, 278 P.3d 1100 (2012). A party's misrepresentation renders a
contract defective, such that tort remedies are appropriate. Austin, 171 Wn. App. at 87
n.6.
The trial court dismissed all claims against Roberts on summary judgment,
because facts submitted by the Klosters could not sustain any claim of misrepresentation.
We review the trial court's grant of summary judgment de novo, viewing the facts and
inferences in the light most favorable to the nonmoving party. Jackowski, 174 Wn.2d at
729. Summary judgment is appropriate ifthere is no genuine issue regarding a material
fact and if the moving party is entitled to judgment as a matter oflaw. Id.; CR 56(c).
Innocent misrepresentation. The elements of innocent misrepresentation are
innocent misrepresentation of a material fact for the purpose of inducing the other to rely
on the misrepresentation, and pecuniary loss caused by justifiable response on the
misrepresentation. Hoffman v. Connall, 108 Wn.2d 69, 72·73, 736 P.2d 242 (1987)
(quoting RESTATEMENT (SECOND) OF TORTS § 552C(1) (1977)). The Klosters fail to
present a factual issue on this claim, because they forward no evidence that Roberts
supplied false information, a defect in most ofthe Klosters' misrepresentation claims.
Schenectady Roberts' assertion that she never communicated with the Klosters or knew
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No. 30546-5-III
Kloster v. Roberts
of any purported easement across Tract 2 is unrebutted and conforms to the Klosters'
version of the facts.
Negligent misrepresentation. To establish negligent misrepresentation, a plaintiff
must "prove by clear, cogent, and convincing evidence that (1) the defendant supplied
information for the guidance of others in their business transactions that was false, (2) the
defendant knew or should have known that the information was supplied to guide the
plaintiff in his business transactions, (3) the defendant was negligent in obtaining or
communicating the false information, (4) the plaintiff relied on the false information, (5)
the plaintiffs reliance was reasonable, and (6) the false information proximately caused
the plaintiff damages." Ross v. Kirner, 162 Wn.2d 493, 499,172 P.3d 701 (2007);
Austin, 171 Wn. App. at 88. Moreover, "[a]n omission alone cannot constitute negligent
misrepresentation, since the plaintiff must justifiably rely on a misrepresentation." Ross,
162 Wn.2d at 499. Since negligent misrepresentation carries a higher burden for the
plaintiff than a claim ofinnocent misrepresentation, it follows that, if the Klosters' claim
of innocent misrepresentation cannot survive a summary judgment motion, the claim of
negligent misrepresentation also loses.
Intentional (fraudulent) misrepresentation. Intentional misrepresentation or fraud
carries an even higher burden for the plaintiff. "A plaintiff claiming fraud must prove
each of the following nine elements: '(1) representation of an existing fact, (2)
materiality, (3) falsity, (4) the speaker's know ledge of its falsity, (5) intent of the speaker
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No. 30546-5-III
Kloster v. Roberts
that it should be acted upon by the plaintiff, (6) plaintiffs ignorance of its falsity, (7)
plaintiffs reliance on the truth of the representation, (8) plaintiffs right to rely upon it,
and (9) damages suffered by the plaintiff.'" Stieneke v. Russi, 145 Wn. App. 544, 563,
190 P.3d 60 (2008) (quoting Stiley v. Block, 130 Wn.2d 486,505,925 P.2d 194 (1996».
As with their claim of negligent misrepresentation, the Klosters fail to show that Roberts
made any representations at all or that she participated in or authorized any
misrepresentations of material fact to the Klosters.
Fraudulent concealment. Fraudulent concealment, another species of fraud, is
sometimes considered a form of negligent misrepresentation. See Van Dinter v. Orr, 157
Wn.2d 329,333, 138 P.3d 608 (2006). On a claim for fraudulent concealment, "the
seller's duty to speak arises[:] where (1) the residential dwelling has a concealed defect;
(2) the vendor has knowledge of the defect; (3) the defect presents a danger to the
property, health, or life of the purchaser; (4) the defect is unknown to the purchaser; and
(5) the defect would not be disclosed by a careful, reasonable inspection by the
purchaser." Stieneke, 145 Wn. App. at 560. Failure to disclose a material fact when
there is a duty to disclose is fraudulent Id. A duty to disclose in a business transaction
typically arises under a fiduciary relationship. Austin, 171 Wn. App. at 90. The duty
i
may also arise, however, "when the facts are peculiarly within the knowledge of one
I
I
person and could not be readily obtained by the other," or when the seller takes advantage
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1
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No. 30546-5-111
Kloster v. Roberts
of the buyer's lack of business experience by remaining silent. Van Dinter, 157 Wn.2d at
334.
The Klosters provide no evidence that Schenectady Roberts knew that the easement
depicted on the short plat map was invalid, that the unrecorded easement presented some
kind of danger, or that the Klosters could not have discovered that the easement was
unrecorded with an inspection of the county records. Roberts had no special relationship
of trust or confidence with the Klosters and had less experience with real estate
transactions than the Klosters. Summary dismissal of this claim was also appropriate.
Vicarious liability for real estate agent's representations. The Klosters contend
Adrian Palmer, a PRB agent, told them that the easement on Tract 2 served Lot 1, and
that Roberts, as principal, is vicariously liable for PRB' s false representation. A principal
is not liable, however, for any act, error, or omission by her real estate agent unless the
principal participated in or authorized the act, error, or omission. RCW 18.86.090. Thus,
PRB's statements may not be attributed to Roberts unless the Klosters could show that
Roberts participated in or authorized those representations. The Klosters made no such
showing. Their failure to raise a factual issue on this essential element supports dismissal
of this claim on summary judgment. White v. Kent Med. Ctr., Inc., 61 Wn. App. 163,
170, 810 P.2d 4 (1991). The nonmoving party's failure to provide evidence to support an
essential element of that party's case renders all other facts immaterial. Miller v. Likins,
109 Wn. App. 140, 145,34 P.3d 835 (2001).
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No.30546-5-II1
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Warranty ofclear title. Finally, the Klosters contend Roberts is liable under the
statutory warranty deed given to the Klosters. Statutory warranty deeds are governed by
RCW 64.04.030. Edmonson v. Popchoi, 172 Wn.2d 272,278,256 P.3d 1223 (2011). A
warranty deed covenants against both known and unknown title defects. Mastro v.
Kumakichi Corp., 90 Wn. App. 157, 162,951 P.2d 817 (1998); see Foleyv. Smith, 14
Wn. App. 285,292,539 P.2d 874 (1975). Under RCW 64.04.030, a grantor conveying
land by statutory warranty deed makes five covenants against title defects:
"(1) that the grantor was seised of an estate in fee simple (warranty of
seisin); (2) that he had a good right to convey that estate (warranty of right
to convey); (3) that title was free of encumbrances (warranty against
encumbrances); (4) that the grantee, his heirs and assigns, will have quiet
possession (warranty of quiet possession); and (5) that the grantor will
defend the grantee's title (warranty to defend)."
Mastro, 90 Wn. App. at 162 (quoting 17 WILLIAM B. STOEBUCK, WASHINGTON
PRACTICE: REAL ESTATE: PROPERTY LAW § 7.2, at 447 (1995)).
The Klosters contend the trial court found that the title was defective due to the
unrecorded access easement. On the contrary, the trial court ruled on more than one
occasion that, as a matter of law, the Klosters have legal and physical access to Lot 1.
The court refused to rule that the unrecorded easement was a defect on the title.
After trial, the court entered findings of fact and conclusions of law to support the
awards of attorney fees. The Klosters seize upon one of these findings, which states,
"The "'cost of cure'" is a covered loss under FIRST AMERICAN's title policy issued to
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No.30546-5-II1
Kloster v. Roberts
the KLOSTERS because the title policy is a contract of indemnity which insures against
actual loss from the existence of a title defect." CP at 4452. As will be discussed below,
this finding is erroneous. More importantly, the finding was not entered in the context of
any claim against Schenectady Roberts.
At any rate, the Klosters' title in Lot 1 is unencumbered. Generally, an easement is
an encumbrance on the servient property, and the failure to disclose an easement on the
servient property breaches the warranty of clear title. See Hebb v. Severson, 32 Wn.2d
159, 167,201 P.2d 156 (1948). But the Klosters claim the opposite-that their seller of
the dominant property failed to pass title to an easement on the adjoining servient land.
No case or statute demands that the warranty of clear title extend to an interest offthe
sold land.
No other party has a recorded ownership inte~est in Lot 1. Accordingly, no defects
or encumbrances affect the Klosters' legally recognized rights in their property. See
Dave Robbins Constr., LLC v. First Am. Title Co., 158 Wn. App. 895,902,249 PJd 625
(2010). The trial court did not err in concluding as a matter of law that Ms. Roberts is not
liable under the statutory warranty deed.
JOINDER OF DEVELOPER HEANY
More than two years after filing of the complaint, the Klosters served a summons
and complaint on Fred Heany as "Doe One." CP at 1059. The summons was quashed in
April 2008, since Heany had not been joined as a defendant. Thereafter the Klosters
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No.30546-5-III
Kloster v. Roberts
moved pursuant to CR 10(a)(2), CR 15(c), and CR 21 to substitute Fred Heany as
Defendant Doe One. The trial court also denied this motion. From these rulings, the
Klosters appeal.
Service on Heany. Under CR lO(a)(2), if a plaintiff does not know the name of a
defendant, the pleading must indicate that there is an unknown defendant, and when the
"true name" is discovered, the pleading may be amended accordingly. The Klosters
attempted to substitute Fred Heany as Doe One by merely serving him with a summons
and complaint. The Klosters, in tum, impliedly argue on appeal that the trial court
committed error by refusing to consider service of process as successfully joining Heany
as a defendant.
We agree with the trial court that the Klosters "placed the cart before the horse."
The "cart" was service of process and the "horse" to be placed in front was a formal
amendment to the complaint. CR lO(a)(2) directs the plaintiff to "amend" the complaint
upon discovering a Doe's true name. Substitution of a true name for a fictitious party
constitutes an amendment substituting or changing parties. Kiehn v. Nelsen's Tire Co.,
45 Wn. App. 291, 295, 724 P.2d 434 (1986). Thus, the rule is read in conjunction with
CR l5(a), which provides that a party seeking to amend a pleading after the responsive
pleading must do so only by leave of the court or by consent of the adverse party.
Amendment ofcomplaint. The Klosters next contend the trial court erred in
denying their CR 15 motion to amend their complaint to substitute Fred Heany as
20
No. 30546·5·111
Kloster v. Roberts
"Defendant Doe One." CP at 1099. We review the trial court's application of the rules
for abuse of discretion. See Burt v. Dep't o/Corr., 168 Wn.2d 828, 832,231 P.3d 191
(2010); Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483,493, 145 P.3d 1196 (2006).
The trial court did not abuse its discretion when later denying the Klosters' motion
to amend their complaint to join Fred Heany as a new defendant. The Klosters filed the
motion on May 1, 2008, after the running of the three· year statute of limitations for suits
alleging fraud and misrepresentation. RCW 4.16.080. The statute of limitations
commences to run when the plaintiff knows, or in the exercise of due diligence should
have known, all the essential elements of the cause of action. See In re Estates 0/
Hibbard, 118 Wn.2d 737, 752, 826 P.2d 690 (1992). If the statute of limitations bars the
claim against Heany, the amendment serves no purpose. In determining a motion to
amend, the trial court may consider the futility of the amendment. Watson v. Emard, 165
Wn. App. 691, 699, 267 P.3d 1048 (2011).
The Klosters bought Lot 1 in February 2005 and filed suit in April 2005. Before
filing the original complaint in April 2005, the Klosters could have researched the record
title of Lot 1 and Pacific Rim Estates to determine if they held an enforceable easement.
The public record shows Heany as the developer of Pacific Rim Estates and the creator of
the easements on Lots 1 and 2 and Tract 2. The Klosters should have then known of the
failure of Heany to obtain the signature of Michael Fester on the plat.
The Klosters admit that, shortly after the filing of suit, they approached Fred
21
No. 30546-5-111
Kloster v. Roberts
Heany, who claimed the easement was properly recorded. The Klosters either had or
should have had information then to know that Heany was wrong. The trial court could
reasonably conclude that the Klosters knew of any claim against Fred Heany by April
2005.
The Klosters argue that any amendment joining Fred Heany should survive the
statute of limitations since the lawsuit was commenced timely. Under CR 15(c), an
amendment adding a party may avoid the statute of limitations and relate back to the date
of filing the suit, when the plaintiffs show that they timely sought an amendment, once
they gained relevant knowledge. Teller v. APM Terminals Pac., Ltd., 134 Wn. App. 696,
I
705,142 P.3d 179 (2006). The moving party must also prove that any mistake in failing
to timely amend was excusable. Id. at 705-06. Conversely, when the amendment is to
I
add an additional defendant, inexcusable neglect alone is a sufficient ground to deny the
I
motion. Id. at 706 (quoting Haberman v. Wash Pub. Power Supply Sys., 109 Wn.2d 107,
I
j
174, 744 P.2d 1032 (1988)). "If the parties are apparent or are ascertainable upon
reasonable investigation, the failure to name them will be inexcusable." Id. "For
example, failure to name a party in an original complaint is inexcusable where the
omitted party's identity is a matter of public record." Id. at 707. The plaintiffs attorney
is presumed to have researched and identified all potential parties with verifying
l
J
information in the public record. Id.
22
No.30546-5-III
Kloster v. Roberts
Although the trial court did not indicate the basis for denial in the order denying the
motion to substitute, this court may affirm on any basis supported in the record. Deep
Water Brewing, LLC v. Fairway Res., Ltd., 170 Wn. App. 1, 11,282 P.3d 146 (2012).
The evidence is more than sufficient to support the trial court's decision on the basis that
the failure to name Heany in the original complaint was inexcusable. Teller, 134 Wn.
App. at 706.
Necessary party. For the first time on appeal, the Klosters contend Fred Heany
should have been joined under CR 19 as a necessary party because he was responsible for
failing to record the access easement. "Necessary party" may be raised for the first time
on appeal because a trial court lacks jurisdiction if all necessary parties are not joined.
DeLong v. Parmelee, 157 Wn. App. 119, 165,236 P.3d 936 (2010). A person must be
joined as a necessary party if(l) a complete determination of the controversy cannot be
made without that party and (2) the party claims an interest in the subject of the case that
would be impeded by a judgment. CR 19(a); DeLong, 157 Wn. App. at 165. In
determining whether a party is necessary, the court asks to what extent a judgment
rendered in the party's absence might be prejudicial to him or to those already parties,
and whether a judgment rendered in his absence will be adequate. Gildon, 158 Wn.2d at
495.
Fred Heany was not a necessary party. His participation in this suit was
unnecessary for a complete determination of the controversy, which involves claims of
23
No.30S46-S-III
Kloster v. Roberts
fraud, concealment, and misrepresentation. Heany transferred his interest in PRB to
Blades in 1983 and made no representations at all to the Klosters. He testified at trial that
he intended to create an easement over Tract 2 when he sold that tract to the previous
owner. The trial court instructed the jury to consider Heany's intent in determining
whether an easement was created. Although the Klosters claim Fred Heany admitted to
fault for failing to obtain Michael Fester's signature on the plat, the Klosters do not
explain their basis for recovery against Heany personally or how they were prejudiced by
his absence as a party.
PRB SUCCESSOR LIABILITY
The Klosters seek to impose liability upon Pacific Rim Brokers, Inc., as the
successor to Fred Heany and Heany's sole proprietorship, Pacific Rim Properties. The
Klosters argue that the issue ofPRB's successor liability should have gone to the jury and
the trial court should have adopted their proposed special jury instruction 16 on
constructive or imputed knowledge. The Klosters wish to employ the jury instruction to
argue that PRB, when acting as the broker during the sale from Roberts to the Klosters,
knew of the defect in the easement, because knowledge held by Fred Heany is imputed to
PRB.
Before trial, Judge Reynolds entered an order indicating that PRB was the
successor in interest to Pacific Rim as the continuation and incorporation ofFred Heany
and his associate, Robert Blades, doing business as Pacific Rim. During trial, Judge
24
No. 30546-5-111
Kloster v. Roberts
Altman set aside Judge Reynolds' decision and entered an order dismissing PRB as a
matter of law. In granting PRB's motion, Judge Altman addressed the effect of the
previous ruling:
Rulings were made previously based on a certain status of the file, which,
as I indicated earlier, has changed in subtle ways now that we finally have
the evidence of live under-oath witnesses.
I'm not going to allow Mr. Heany's error to be attributed to the
defendant [PRB] in this case, so to the extent that that's a previous ruling
based on the facts as I knew them at the time, or Judge Reynolds did, that
has changed.
RP at 1141.
A trial court's order or ruling may be revised at any time before final judgment.
Owens v. Kuro, 56 Wn.2d 564, 566,354 P.2d 696 (1960). Anyway, Judge Altman did
not alter Judge Reynolds' finding that PRB was the successor in interest of He any's
brokerage business. Judge Altman ruled that PRB is not liable for mistakes Heany made
in his separate business as a developer of Pacific Rim Estates. The Klosters contend the
court erred in finding a distinction between Heany's brokerage business, known as
Pacific Rim Properties, and his separate business as developer of Pacific Rim Estates.
They argue that PRB is liable as a continuation of Heany's sole proprietorship, including
his activities as developer and as broker.
The Klosters cite Cambridge Townhomes, LLC v. Pac. Star Roofing, Inc., 166
Wn.2d 475,209 P.3d 863 (2009). Cambridge noted the general rule that a corporation
purchasing the assets of another corporation does not take on the liabilities ofthe selling
25
No. 30546-5-111
Kloster v. Roberts
corporation. Id. at 481-82. One exception to this rule, however, is when the purchaser is
a "mere continuation" of the seller. Id. at 482. Factors used by the court to determine
whether a successor business is really just a continuation of the former business include
whether there is a common identity between the officers, directors, and stockholders of
the selling and buying companies, and the sufficiency of the consideration for the sale.
Id. In the case of a sole proprietorship, which has no officers, directors, or shareholders,
the court considers "the continuity of individuals in control of the business." Id. at 483.
The objective of the test is to discern whether the purchasing company is merely a '''new
hat'" for the selling company. Id. at 482 (quoting Cashar v. Redford, 28 Wn. App. 394,
397,624 P.2d 194 (1981)).
The Klosters assert that while Fred Heany developed Pacific Rim Estates, he
represented to the world that he acted for Pacific Rim Properties. They emphasize that
Heany's letters to Klickitat County Commissioners, regarding the requirements for the
long plat, were written on Pacific Rim Properties letterhead. Additionally, they note that
the articles of incorporation for PRB state its purpose is "[t]o engage in the general
business of brokering and development of real estate." Ex. 137, at 1 (emphasis added).
These facts are not conclusive, however.
Mere use of a company's letterhead generally is insufficient to show that the letter
writer is acting on behalf of the company. See Griffin v. Union Sav. & Trust Co., 86
Wash. 605, 610-11, 150 P. 1128 (1915). The intent of the parties controls whether the
26
No. 30546-5-111
Kloster v. Roberts
letter in effect "binds" the company. Bailie Commc'ns Ltd, v. Trend Bus. Sys., 53 Wn.
App. 77, 80, 765 P.2d 339 (1988); see Griffin, 86 Wash. at 610.
In this case, Fred Reany signed his name to these letters without any reference to
representation of Pacific Rim Properties, and the letters themselves do not mention
Pacific Rim Properties. Other letters written by Reany regarding development of the
long plat were not sent on Pacific Rim Properties letterhead. At trial, he testified that he
conducted his development activities independent of his brokerage activities for Pacific
Rim Properties. Reany further testified that, despite language in the articles of
incorporation, PRB never developed real estate. After he formed PRB with Robert
Blades, his development activities prevented him from carrying out his brokerage duties
for PRB, and that is why he sold his interest in PRB a year later to Blades. According to
Robert Blades, the articles of incorporation were drawn up by an attorney who
recommended including "development of real estate" in the purpose section "in case
anybody wanted to do anything down the road," not because he and Reany intended to
develop property for PRB. RP at 858.
The "continuity of individuals" test supports a conclusion that PRB is a
continuation of the former brokerage sole proprietorship. Cambridge, 166 Wn.2d at 483.
But the evidence also conclusively supports the trial court's conclusion that Reany's
development activities were not performed for Pacific Rim Properties and were not
intended to be incorporated in PRB. Consequently, the trial court did not err in rejecting
27
No. 30546-5-III
Kloster v. Roberts
the Klosters' argument that PRB had successor liability for Reany's development
activities for Pacific Rim Estates.
Any error in dismissing PRB was harmless. The jury ruled that the Klosters
suffered no damages from any defect in the easement.
AMERI-TITLE LIABILITY
Coinsurer. Evidence showed that Ameri-Title was a local agent for First
American and sold the First American title insurance policy to the Klosters. In the
agency agreement with First American, Ameri-Title retained 90 percent of the premiums
paid for a First American title policy and agreed to bear the first $3,500 of risk of loss on
some policies written for First American. Ameri-Title prepared the preliminary
commitment for title insurance that was supplied to the Klosters.
The Klosters contend Ameri-Title qualifies as an insurer under RCW 48.01.040,
.050, and .070 and WAC 284-30-320. In 2009, Judge Reynolds granted a motion in
limine preventing argument that Ameri-Title did not act as a title insurer. After
presentation of the Klosters' evidence, however, the trial court granted First American's
and Ameri-Title's motion to revise this interlocutory issue on summary judgment or
under CR 56(d) (partial summary judgment). The trial court ruled that the Klosters could
not assert a claim against Ameri-Title as an insurer, and therefore all claims on that basis
were dismissed, including claims for breach of contract, breach of the duty to defend and
indemnity, bad faith, and violations of the CPA.
28
No.30546-5-III
Kloster v. Roberts
Review of an order of summary judgment is de novo. Campbell v. Ticor Title Ins.
Co., 166 Wn.2d 466, 470, 209 P.3d 859 (2009). Summary judgment is appropriate if
there are no genuine issues of fact and the moving party is entitled to judgment as a
matter oflaw. Id.; CR 56(c). We also review a trial court's ruling on a CR 50(a) motion
for judgment as a matter of law de novo, using the same standard applied by the trial
court. Davis v. Microsoft Corp., 149 Wn.2d 521, 530-31, 70 P.3d 126 (2003); Hawkins v.
Diel, 166 Wn. App. 1, 13,269 P.3d 1049 (2011).
Real estate title insurers in Washington are regulated under Title 48 RCW. See ch.
48.29 RCW. An "insurer" is defined generally in the statute as "every person engaged in
the business of making contracts of insurance." RCW 48.01.050. A more detailed
definition of "insurer" is supplied by former WAC 284-30-320(5) (1978): any individual
or legal entity "engaged in the business of insurance, authorized or licensed to issue or
who issues any insurance policy or insurance contract in this state." "Insurance" is
defined as "a contract whereby one undertakes to indemnifY another or pay a specified
amount upon determinable contingencies." RCW 48.01.040. A title insurance agent is
"a business entity licensed under the laws of this state and appointed by an authorized
title insurance company to sell, solicit, or negotiate insurance on behalf of the title
insurance company." RCW 48.17.010(16).
The difference between a title insurer and its agent, therefore, is that the title
insurer enters into the contract with the insured to indemnifY for certain losses, while the
I 29
I
,
1
No.30546-5-III
Kloster v. Roberts
agent enters into a separate contract with the insurer to sell, solicit, or negotiate insurance
on behalf of the insurer. An agent, such as Ameri-Title, is not licensed to issue an
insurance policy on its own behalf. Id. Ameri-Title's agreement to be compensated with
a percentage of the premiums and to indemnity a portion of the loss paid by First
American was negotiated with First American, not with the Klosters. See Title Ins. Co. 0/
Minn. v. State Bd. o/Equalization, 4 Cal. 4th 715,842 P.2d 121, 126-27, 14 Cal. Rptr. 2d
822 (1993). First American remained solely liable to the Klosters for any covered loss.
Id., at 127. Consequently, the trial court did not err in concluding as a matter of law that
Ameri-Title was not a coinsurer with First American on the Klosters' title insurance
policy.
Negligent misrepresentation. At the conclusion of the Klosters' evidence, the trial
court found "no evidence whatsoever" to support the claims against Ameri-Title, and
dismissed them all. The Klosters contend Ameri-Title had a duty to investigate and
disclose to them that the access easement shown on the short plat had not been recorded,
and that the breach of this duty constituted negligence.
To support a prima facie case of negligent misrepresentation, the Klosters had to
produce evidence that Ameri-Title negligently supplied them false information to induce
a business transaction and that the Klosters justifiably relied on that false information.
Douglas v. Visser, 173 Wn. App. 823, 833-34, 295 P 3d 800 (2013). The Klosters
contend the "false information" here was the failure to inform them that the easement on
30
No.30546-5-II1
Kloster v. Roberts
Tract 2 shown in the preliminary commitment document was unrecorded. Ameri-Title
had no duty, however, to infonn the Klosters ofthis fact.
A preliminary commitment does not represent the condition of the title, but is
merely a statement of the terms and conditions by which the insurer is willing to issue its
title policy. Barstad v. Stewart Title Guar. Co., 145 Wn.2d 528, 536,39 P.3d 984
(2002); Courchaine v. Commonwealth Land Title Ins., Co., 174 Wn. App. 27, 36, 296
P.3d 913 (2012). Neither a preliminary commitment nor a title policy serves the purpose
of an '" abstract of title'" which is a written representation, intended to be relied upon by
the party who requested it, that gives constructive notice of all recorded conveyances or
documents in the chain of title. Courchaine, 174 Wn. App. at 36 (quoting RCW
48.29.010(3)(b)). Because the preliminary commitment here was not an abstract of title,
Ameri-Title had no duty to infonn the Klosters that one of the easements on the attached
short plat map had not been recorded. Furthermore, the preliminary commitment
specifically excluded from coverage any easements shown on the short plat map.
The Klosters rely on Sheridan v. Aetna Casualty & Surety Company, 3 Wn.2d
423, 440, 100 P .2d 1024 (1940), when arguing that Ameri-Title voluntarily assumed the
obligation to warn the Klosters of the inability to use an easement across the Rickeys'
land. Sheridan was a personal injury accident against a liability insurer, who agreed with
the owner of a building to inspect the premises and report the condition of the premises to
the government authority. Any relevance to duties of a title insurer is distant. Whereas
31
No.30546-5-III
Kloster v. Roberts
First American Title may have wanted its agent to be more careful in researching
easements, this want created no duty to the Klosters, particularly when the commitment
excluded coverage for easements shown on the plat map.
FIRST AMERICAN TITLE INSURANCE COMPANY
EXTRACONTRACTUAL LIABILITY
The Klosters seek recovery against the title insurance policy issuer, First American
Title, for breach of a duty to defend, bad faith, violations of the unfair claims settlement
practices regulations, violations of the CPA, and breach of the title insurance contract. In
this context, the claims of bad faith, violations of the regulations, and violations of the
CPA are coextensive.
After the Klosters rested their case, the trial court granted First American's CR
j
50(a) motion for judgment as a matter of law and dismissed the claims. Our review of a
CR 50(a) judgment is de novo, viewing the evidence in the light most favorable to the
nonmoving party. Hawkins, 166 Wn. App. at 13. Judgment as a matter oflaw is
appropriate if we can say that there is neither substantial evidence nor reasonable
inference to sustain a verdict for the nonmoving party. Id. (quoting Sing v. John 1. Scott,
Inc., 134 Wn.2d 24,29,948 P.2d 816 (1997)). We address each claim in the order above.
Breach ofduty to defend. Under Section 4 in the title insurance policy, First
I
~i
I
I
American agreed to defend, at its own costs, against third party claims "adverse to the
title" to the Klosters. Ex. 95, at 3. The Klosters contend First American had a duty to
i
j
I
1
32
No. 30546-5-111
Kloster v. Roberts
defend their claim that they had an access easement across Tract 2 and that First
American held a conflict of interest since it also insured the purchase of Tract 2 by the
Rickeys. First American responds that no duty to defend arose because the Rickeys
never filed suit against the Klosters, and because the Klosters had no coverage for the
purported easement.
The duty to defend is triggered whenever an insurance policy conceivably covers
the allegations of a complaint filed against the insured. Campbell, 166 Wn.2d at 471.
"The duty to defend arises whenever a lawsuit is filed against the insured alleging facts
and circumstances arguably covered by the policy." Kirk v. Mount Airy Ins. Co., 134
Wn.2d 558,561,951 P.2d 1124 (1998). "The triggering event is the filing ofa complaint
alleging covered claims." Griffin v. Allstate Ins. Co., 108 Wn. App. 133, 138,29 P.3d
777 (2001).
The Rickeys have not filed a lawsuit against the Klosters and have not sued to
quiet title. The Klosters contend the duty to defend extends, however, to any legal action
necessary to establish title. Although unclear in their brief, they may contend First
American had a duty under Section 4 to file an action to quiet title in the unrecorded
easement. The Klosters cite no case that supports their assertion and we find no case.
We will not rewrite the insurance contract to impose a duty on the title insurer to "clear
title" when the title policy imposes no such obligation but merely obliges the insurer to
33
No.30546-5-II1
Kloster v. Roberts
indemnify for losses not exceeding the policy limits. Sec. Serv., Inc. v. Transamerica
Title Ins. Co., 20 Wn. App. 664, 669-70, 583 P.2d 1217 (1978).
Moreover, the duty to defend does not arise if the alleged claim clearly is not
covered by the policy. Kirk, 134 Wn.2d at 561. As we discuss below, the title policy
here excludes coverage of any road easement on Tract 2.
Badfaithlviolations ofthe unfair claims settlement practices regulations. An
insurer has a duty of good faith to its insured, and violations of that duty may give rise to
tort actions for bad faith. Smith v. Safeco Ins. Co., 150 Wn.2d 478,484, 78 P.3d 1274
(2003); Rizzutiv. Basin Travel Servo ofOthello, Inc., 125 Wn. App. 602, 615,105 P.3d
1012 (2005). Under RCW 48.30.010(1), an insurer "shall not engage in unfair methods
of competition or in unfair or deceptive acts or practices" as defined by the statute and its
regulations, found in WAC 284-30-300 through -800. Violations of these standards
constitute a breach of the insurer's duty of good faith. Rizzuti, 125 Wn. App. at 616.
WAC 284-30-330 identifies specific unfair claims settlement practices. The
Klosters allege the following violations: misrepresentation of pertinent facts or policy
provisions (WAC 284-30-330(1)) and denial of coverage without a reasonable and
prompt investigation (WAC 284-30-330(3), (4), (6)). According to the Klosters, First
American misrepresented facts when it failed to reveal until a year after it filed its claim
report that its first investigation of the Klosters' claim indicated agent
"irregularity/omission" caused the dispute between the Klosters and the Rickeys.
34
I
No. 30546-5-111
Kloster v. Roberts
Ex. 154. Nevertheless, the claim report drew no such conclusion, but only characterized
the claim of the Klosters.
The Klosters also argue that First American's initial claim report did not deny
coverage, and thus First American's eventual denial of coverage is evidence of bad faith.
Nevertheless, whether the initial internal report failed to document a denial of coverage is
immaterial. First American, from the inception of the dispute, consistently informed the
Klosters that it denied coverage, in part because the Klosters had access over other land.
An insured does not establish bad faith when the insurer denies coverage based on a
reasonable interpretation of the policy. Am. Best Food, Inc., v. Alea London, Ltd., 168
Wn.2d 398, 412, 229 P.3d 693 (2010).
"To prevail on a claim of bad faith denial of coverage, the insured must come
forward with evidence that the insurer acted unreasonably." Rizzuti, 125 Wn. App. at
616. Once the insurer shows a reasonable basis for its action, the insured can raise an
issue of fact by presenting evidence that the insurer's alleged basis was not the real
reason for its decision to deny coverage. Id. at 616-17; see also Smith, 150 Wn.2d at
486. First American provided a reasonable basis for denial, and the Klosters failed to
show that First American's stated reasons for denial were not the actual reasons.
The Klosters established at trial that First American employees did not receive
training on specific regulations of the unfair claims settlement practices regulations. Nor
did First American maintain internal rules regarding the handling of claims. These facts
35
No.30546-5-III
Kloster v. Roberts
could support a claim that First American did not adopt and implement reasonable
standards for the prompt investigation of claims arising under insurance policies in
violation of WAC 248-30-330(3). Ultimately they did not show, however, that this lack
of training led to any delay in a prompt investigation, nor that any delay harmed the
Klosters.
Violations ofthe Consumer Protection Act. The Klosters contend that violations
of the unfair claims settlement practices regulations also violate the CPA, chapter 19.86
RCW. To prevail on a CPA claim, the plaintiff must show (1) an unfair or deceptive act,
(2) in trade or commerce, (3) impacting the public interest, and that (4) the plaintiff
suffered a business or property injury (5) caused by the unfair or deceptive act.
Courchaine, 174 Wn. App. at 44-45. A violation of the unfair claims settlement practices
regulations can constitute a violation of the CPA. Shields v. Enter. Leasing Co., 139 Wn.
App. 664, 675, 161 PJd 1068 (2007). Since the Klosters failed to show violations of the
unfair claims settlement practices regulations and otherwise failed to present evidence of
First American's breach of the duty of good faith, the trial court did not err in dismissing
their claims of violations of the CPA as a matter oflaw.
TITLE INSURANCE POLICY COVERAGE
In its cross appeal, First American Title Insurance Company contends the trial
court erred when ruling, as a matter of law, that the Klosters had coverage under the title
policy for an incomplete access easement. We agree and reverse.
36
No.30546-5-1I1
Kloster v. Roberts
The trial court agreed with First American that (l) its title policy insured against
loss resulting from the right to access or legal access from a public road; (2) the title
policy did not insure any specific easement; (3) the Klosters have legal access to their
land across the southern 30 feet of Lot 2 and the eastern 30 feet of Lots 5, 6, and 7 of
Pacific Rim Estates; (4) Schedule A to the policy, which includes the description of the
land insured by the policy, does not include any property beyond its bounds; (5) the
unrecorded purported easement over the northern 30 feet of short plat Tract 2 is outside
the Pacific Rim Estates plat; and (6) Schedule B excludes all specific easements in the
Pacific Rim Estates and short plat Tract 2. The trial court, nonetheless, ruled that the
partial plat map attached to the policy created an ambiguity. The court reasoned that the
average person purchasing insurance would not reasonably glean that the additional
access easement was not within the definition of access contained elsewhere in the
policy. Therefore, the trial court ruled as a matter oflaw that the policy insured against
the unavailability of the easement across the Rickey property, since it had to read any
ambiguity in favor of the insured.
Waiver ofcross appeal. Before we reach the merits of First American's cross
appeal, we must address the Klosters' contention that First American waived its appeal
since it did not assign error to the trial court's finding that the Klosters' title to Lot 1 was
defective or to Judge Reynolds' order that the title policy access coverage was
ambiguous. According to the Klosters, First American has appealed only the trial court's
37
No. 30546-5-111
Kloster v. Roberts
denial of its motion to set aside Judge Reynolds' pretrial order that the title policy access
coverage was ambiguous, and First American is appealing only from the second of the
trial court's orders refusing to set aside Judge Reynolds' pretrial order, not the third and
final ruling.
We read First American's brief as assigning error to the findings of fact, in addition
to the legal ruling that the policy covered the missing easement because of the attached
map. We know of no rule that requires an appellant to challenge each time a trial court
repeats the same ruling. We may also excuse a party's failure to assign error to specific
findings if the briefing makes the challenge clear. Noble v. Lubrin, 114 Wn. App. 812,
817,60 P.3d 1224 (2003). We know what First American is appealing and, thus, we
reach the merits of the cross appeal.
Title policy coverage. Interpretation of an insurance policy is a matter of law and
is reviewed de novo. Butzberger v. Foster, 151 Wn.2d 396,401,89 P.3d 689 (2004);
Courchaine, 174 Wn. App. at 43. The policy is construed as a whole, giving effect to
each clause. Id. Policy language must be interpreted so that it is consistent with the way
an average person would understand it. Greer v. Nw. Nat 'I Ins., Co., 109 Wn.2d 191,
198, 743 P.2d 1244 (1987); Courchaine, 174 Wn. App. at 43. Ifa clause in the policy is
ambiguous, the clause will be interpreted in the insured's favor. Capitol Specialty Ins.
I
1
Corp. v. JBC Entm't Holdings, Inc., 172 Wn. App. 328, 335, 289 P.3d 735 (2012). "That
I is especially so in the context of exclusionary clauses." Id. A clause is ambiguous if it is
i 38
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No. 30546-5-III
Kloster v. Roberts
fairly susceptible of two reasonable interpretations. Greer, 109 Wn.2d at 198. When the
language is clear and unambiguous, however, the court may not create an ambiguity.
Courchaine, 174 Wn. App. at 43.
The First American title policy insured against loss or damage sustained or
incurred by the insured by reason of a "[l]ack of a right of access to and from the land."
Ex. 95, at 1. Schedule A describes the "land" covered as "Lot 1, PACIFIC RIM
ESTATES." Ex. 95, at 4. Since the Klosters gained, upon their purchase, legal and
actual access to their land, regardless of the absence of an easement across the Rickeys'
land, their claim does not fulfill the policy inclusory language.
The First American policy also excluded coverage three times over. Schedule B
excluded from coverage, "Easements, claims of easement or encumbrances which are not
shown by the public records." Ex. 95, at 5. Specific exceptions related to the unrecorded
easement on the northern 30 feet of Tract 2:
5. Easements, Conditions, Restrictions and Reservations, including
the terms and provisions thereof, as contained in Short Subdivision
filed as Auditor's File No. 167997, Klickitat County Short Plat Records.
8. Conditions, Restrictions, Easements for roadways and Utilities and
disclosure regarding maintenance of roads, including the terms and
provisions thereof, as shown on the Plat recorded December 1, 1981 in
Book 5, Pages 31 and 32, Klickitat County Plat Records.
39
No.30546-5-II1
Kloster v. Roberts
Ex. 95, at 6. The map sketch attached to the title policy is a portion of the short
plat map in Auditor's File No. 167997 and shows various easements, over the
short subdivision known as WS-146, including the unrecorded easement on
Tract 2. Also, exclusion 8 referred to easements for roadways as shown on the plat in
Book 5, pages 31 and 32, of the county records, which is the same plat referred to in
Schedule A's description of the property.
The trial court concluded that the "unfortunate plat map appended to the policy"
created an ambiguity of coverage because an "average person could reasonably conclude
that the title policy for Lot 1, Pacific Rim Estates, covers access outside the plat across
the northern 30~feet of the Rickey parcel, Tract 2," and the policy "both references the
mistaken easement by attachment and guarantees coverage to 'access.'" CP at 4613. The
Klosters' own testimony contradicts this conclusion. Karl Kloster was asked at trial if the
title policy exceptions included the property containing Tract 2 and he replied, "I guess."
RP at 1072. He was also asked if he relied on the short plat sketch attached to his title
policy as a representation of what was covered in the policy. He replied that he would
never rely on a sketch because he knew the difference between a sketch and a recorded
short plat. Karl Kloster further explained that he did not rely on the sketch of the plat
because it had a disclaimer at the top. This disclaimer noted the map was provided as a
courtesy and does not constitute a part of the title policy. We wonder how the title
company could have more clearly communicated to the reader that any easements
40
No. 30546-5-III
Kloster v. Roberts
depicted on the sketch are not guaranteed. We assume that Karl Kloster agrees he is a
reasonable person capable of reading and understanding the language of the policy.
With the inclusory language, the exclusionary clause, and the disclaimer on the
map, the average person would not assume that easements shown on the plat sketch were
covered in the Klosters' title policy. With the disclaimer, the map is not sufficient to
rebut what the trial court recognized is the unambiguous language of the policy.
A decision of limited relevance is Havstad v. Fidelity National Title Insurance
Company, 58 Cal. App. 4th 654, 68 Cal. Rptr. 2d 487 (1997). The Havstads, upon
purchasing the insured property, began use of a strip of neighboring land for access. The
strip was delineated on a subdivision map as "not a public street." One of the neighbors
sued the Havstads for trespass and the Havstads tendered the defense of the suit to the
title company. The California Court of Appeals affirmed a summary judgment ruling in
favor of the title company on the ground that the title company has no duty to defend
when a claim is not covered.
Fidelity National Title Insurance Company's policy read similarly to the First
American Title Insurance Company's policy. The policy insured against loss by reason
of "lack of a right of access to and from the land." Id. The insured property was the
property purchased by the insured and did not extend to land outside its boundaries.
Nevertheless, the policy referenced the subdivision map that contained the "not a public
street" notation across a portion of the neighboring lands. Id. The Havstads argued that
41
No. 30S46-S-III
Kloster v. Roberts
coverage extended to an easement for the street because of the reference. The court
disagreed, stating that the insured's position contradicted the plain language of the policy
that described the covered property as only that within the legal description of the
insured's land.
Our trial court erred in concluding that the title policy was ambiguous and
therefore covered a "defect" in the title caused by the Klosters' inability to use the
unrecorded easement on Tract 2. The judgment against First American is therefore
reversed.
First American Title also cross appeals the jury award of the cost of cure as
damages, contending the measure of damages should be the decrease in the Klosters'
property value resulting from the missing easement. In tum, the Klosters appeal the trial
court's decision limiting their damages to the cost to cure. Finally, First American Title
also cross appeals the trial court's award of reasonable attorney fees and costs to the
Klosters, and the Klosters appeal the limited amount of fees awarded them. Because we
hold judgment should have been entered in favor of First American Title, not the
Klosters, we reverse the jury award and need not address the correct measure of damages
or the elements of damages available. We also reverse the award of reasonable attorney
fees and costs in favor of the Klosters against First American Title and do not address
whether the trial court's award should have been higher.
42
No. 30546-5-111
Kloster v. Roberts
ATTORNEY FEES
The sale agreement between Schenectady Roberts and the Klosters stated, "If the
Buyer, Seller, or any real estate licensee or broker involved in this transaction is involved
in any dispute relating to this transaction, any prevailing party shall recover reasonable
attorneys' fees and costs." CP at 3744 (emphasis added). The Klosters contend the trial
court erred when awarding PRB and Roberts fees because their claim was not for a
breach of contract but for misrepresentation and concealment. They rely on Boguch v.
Landover Corp., 153 Wn. App. 595,609-10,618-19,224 P.3d 795 (2009), for the
proposition that there is no right to recover attorney fees based on contract when the
claim is based on negligence. The Klosters do not object to the high amount of the fees
and costs.
When determining whether to award fees under a contract clause, the court must
focus on the language of the clause. See Belfor USA Grp., Inc., v. Thiel, 160 Wn.2d 669,
671, 160 P.3d 39 (2007); Hindquarter Corp. v. Prop. Dev. Corp., 95 Wn.2d 809,815,
631 P .2d 923 (1981). The fee provision in Boguch was narrow and limited to actions "to
enforce any of the terms of this Agreement." Boguch, 153 Wn. App. at 607. The
Klosters' contract clause was broader.
An analogous case is Brown v. Johnson, 109 Wn. App. 56,58-59,34 P.2d 1233
(2001). In Brown, the court held that a property buyer's tort misrepresentation claim was
properly a basis for an attorney fees claim under a real estate purchase and sale
43
No.30546-5-II1
Kloster v. Roberts
agreement. Id. at 59. The fee provision in the agreement applied to any "suit concerning·
this Agreement." Id. The court held that the buyer's misrepresentation claim was "on
[the] contract" because it arose "out of the parties' agreement to transfer ownership of
[the property]" and the sale agreement was central to the buyer's claims. Id. at 59. The
Klosters' misrepresentation and concealment claims also arose out of the agreement by
which Roberts sold property to them. The Klosters' own complaint prayed for an award
of attorney fees under the sale agreement.
The Klosters also contend the trial court could not award Roberts and PRB fees
because the statutory warranty deed that Roberts gave the Klosters superseded the sale
agreement. Therefore, they argue that the sale agreement merged into the statutory
warranty deed and the attorney fees clause was extinguished. The sale agreement
specifically read, however, that "[a]ll terms of this Agreement, which are not satisfied or
waived prior to closing, shall survive closing. These terms shall include, but not be
limited to, representations and warranties, attorneys fees and costs, ... etc." CP at 3745.
Thus, the trial court properly awarded reasonable attorney fees and costs to Roberts and
PRB as provided in the sale agreement.
We also award reasonable attorney fees and costs, on appeal, to Roberts and PRB.
RAP 18.1 permits the prevailing party to recover reasonable attorney fees incurred on
appeal if the party was entitled to attorney fees at trial. Landberg v. Carlson, 108 Wn.
App. 749, 758, 33 P.3d 406 (2001).
44
No. 30S46-S-III
Kloster v. Roberts
CONCLUSION
We reverse the judgment entered against First American and affirm the remaining
decisions of the trial court. We award Schenectady Roberts and PRB reasonable attorney
fees and costs incurred on appeal.
Reverse and affirm.
A majority of the panel has determined 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.
WE CONCUR:
Korsmo, C,J. Kulik, J.P.T.
45
A
(509) 4~3"r.196S
Fox: (S09) 493·1905
PO Box 73s - 165 NE Estes
AmenTtfie 'White Salmon, WA 98672
ANY SKETCH ATTACHED HERETO IS pONE SO AS A COURTESY ONLY AND
IS NOT PART OF J.\NYTITLE COMMITMENT OR POLICY. IT IS
':.: FURNLSHED SOLE~Y FOR THE PURPOSE OF ASSISTING IN LOCATING
THE P.REMISES AND FIRST AMERICAN EXPRESSLY DISCLAIMS ANY
LIABILITY WHICH MAY RESULT FROM RELIANCE MADE UPON IT.
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