Folweiler Chiropractic, P.s., App/cross-resp v. Fair Health, Inc., Resp/cross-app

COURT-OF APPEALS DIV 1
ST'ATE OF WASHINGTON

2010 JUN -14 Ml 10: 39

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

FOLWEILER CHIROPRACTIC, PS, )
a Washington professional services ) No. 75864-1-1
corporation, )
) DIVISION ONE
Appellant, )
)
v. ) UNPUBLISHED OPINION
)
FAIR HEALTH, INC., a New York )
corporation, )
)
Respondent. ) FILED: June 4, 2018
)

LEACH, J. — Folweiler Chiropractic PS sued FAIR Health Inc., alleging a

violation of Washington's Consumer Protection Actl (CPA). Folweiler appeals

the trial court's summary judgment dismissal of this claim and denial of its motion

to continue. FAIR Health, in turn, appeals the trial court's assertion of specific

personal jurisdiction over it and the denial of its request for attorney fees under

the long-arm statute.

Because FAIR Health does not have contacts with Washington sufficiently

connected to this lawsuit, Washington courts do not have personal jurisdiction

over it. If we had personal jurisdiction to decide this case on the merits, we

would affirm. Folweiler does not show an issue of fact about two elements of its

1 Ch. 19.86 RCW.
No. 75864-1-1 / 2

CPA claim: (1) that FAIR Health committed an unfair or deceptive act or practice

and (2) that act or practice caused Folweiler's alleged injury. Also, the long-arm

statute entitles FAIR Health to attorney fees incurred in this litigation, including

fees on appeal. We affirm the dismissal, but we remand so the trial court can

award these fees.

FACTS

FAIR Health is a New York nonprofit corporation. FAIR Health was

created as part of a settlement between UnitedHealth Group and the New York

State Attorney General after an investigation of lngenix Inc. This company

performed much the same function that FAIR Health now does. The New York

Attorney General determined that Ingenix, as a wholly owned subsidiary of

UnitedHealth Group Incorporated, had a conflict of interest. FAIR Health was

designed to operate independently of any insurer.

Fair Health provides an independent, impartial source of data about the

cost of health care procedures. It educates consumers and offers them free tools

to make it easier for them to estimate out-of-network expenses, disseminates its

data to all health care participants to promote fair billing and reimbursement

practices, and makes its data available for policy making and academic research.

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No. 75864-1-1/ 3

FAIR Health developed a national database with the help of academic

experts, statisticians, and health care economists. The database contains health

care charges for privately insured individuals. The database includes the actual,

nondiscounted fees charged by providers before network discounts or other

allowances are applied. FAIR Health maintains its database by collecting data

from health insurers and plan administrators, including Washington insurers, who

license the database for use in paying claims. FAIR Health organizes the data

based on "geo-zips," the first three digits of providers' zip codes, and a specific

procedure's current procedural terminology(CPT)code.2

Folweiler is a Washington professional services corporation that provides

chiropractic and massage therapy care in Washington. Folweiler provided care

to patients with personal injury protection (PIP) coverage under an automobile

insurance policy issued in Washington by Progressive Insurance. The PIP

statute requires insurers to pay all reasonable bills submitted.3 Insurers must

investigate if a bill is reasonable before refusing to pay it in full.4 Mitchell

Medical, a California company that does business in California, reviewed

2 The American Medical Association assigns a CPT code to every type of
medical procedure.
3 RCW 48.22.085, .005(7).
4 WAC 284-30-330.
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No. 75864-1-1 /4

Folweiler's bills for Progressive.5 Folweiler alleges that Mitchell used the FAIR

Health database to automatically reduce its bills to the 90th percentile of the

charges for the same procedure in the same geographical area. Progressive

then determined that Folweiler's charge of $95 for a certain procedure was

unreasonable and instead reimbursed it at the 90th percentile level, which was

$91.

Folweiler sued FAIR Health, alleging a CPA violation.6 The trial court

denied FAIR Health's motion to dismiss for lack of personal jurisdiction. The

court granted Folweiler's motion for class certification. Both parties moved for

partial summary judgment on the issue of liability. The motions were set to be

argued together. Folweiler asked the court to delay consideration of FAIR

Health's motion so Folweiler could do further discovery but to proceed to hear

Folweiler's own motion. The trial court denied the continuance request. It

considered both summary judgment motions at the same time. The trial court

granted FAIR Health's motion and denied Folweiler's.

Both Folweiler and FAIR Health appeal the trial court's various decisions.

5 The record does not establish that Mitchell is a California company, but
the parties apparently agree that this is the case.
6 Folweiler also sued Progressive insurance companies, alleging a
violation of the CPA. The parties settled the case. Folweiler Chiropractic, PS v.
Progressive Max Ins. Co., No. 15-2-17846-6 SEA (King County Super. Ct.,
Wash.)(docket nos. 44, 45).
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No. 75864-1-1 / 5

ANALYSIS

I. Jurisdiction

Due process limits a state court's authority to proceed against a

defendant.7 Thus, we first must consider FAIR Health's personal jurisdiction

challenge. We conclude that Washington state courts do not have personal

jurisdiction over FAIR Health in this matter.

We review the denial of a motion to dismiss for lack of personal jurisdiction

de novo.8 "When a motion to dismiss for lack of personal jurisdiction is resolved

without an evidentiary hearing, the plaintiffs burden is only that of a prima facie

showing of jurisdiction."9 Even when the trial court has considered matters

outside the pleadings, "[for purposes of determining jurisdiction, this court treats

the allegations in the complaint as established.'"19 For matters outside the

pleadings, this court draws reasonable inferences in the light most favorable to

the nonmoving party."

7 Noll v. Am. Biltrite Inc., 188 Wn.2d 402, 411, 395 P.3d 1021 (2017)
(quoting Goodyear Dunlop Tires Operations, SA v. Brown, 564 U.S. 915, 923,
131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011)).
8 State v. LG Elecs., Inc., 186 Wn.2d 169, 176, 375 P.3d 1035 (2016).
9 LG Elecs., 186 Wn.2d at 176.
19 State v. LG Elecs., Inc., 185 Wn. App. 394, 406, 341 P.3d 346 (2015)
(alteration in original)(quoting Freestone Capital Partners LP v. MKA Real Estate
Opportunity Fund I, LLC, 155 Wn. App. 643, 654, 230 P.3d 625 (2010)), aff'd,
186 Wn.2d 169, 375 P.3d 1035 (2016).
11 State v. AU Optronics Corp., 180 Wn. App. 903, 912, 328 P.3d 919
(2014).
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No. 75864-1-1 /6

"Under Washington's long arm jurisdiction statute, RCW 4.28.185,

personal jurisdiction exists in Washington over nonresident defendants and

foreign corporations as long as it complies with federal due process."12 Due

process allows Washington courts to exercise jurisdiction over a nonresident

defendant so long as: (1) purposeful minimum contacts exist between the

defendant and the forum state, (2)the plaintiffs injuries arise out of or relate to

those minimum contacts, and (3) the exercise of jurisdiction is consistent with

notions of fair play and substantial justice.13 If the plaintiff satisfies the first two

prongs, the burden shifts to the defendant to set forth a compelling case that the

exercise of jurisdiction would not be reasonable.14

Depending on the facts and the claims, Washington courts may have

either general or specific personal jurisdiction over a defendant corporation.15 A

state court has general jurisdiction to decide claims against a defendant

corporation when that corporation's contacts with the state are so significant that

it is essentially at home in the forum state.16 A corporate defendant is "at home"

in the place of the corporation's incorporation and its principal place of

12Noll, 188 Wn.2d at 411.
13LG Elecs., 186 Wn.2d at 176-77.
14 AU Optronics, 180 Wn. App. at 914-15.
15 FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 175
Wn. App. 840, 886, 309 P.3d 555 (2013), aff'd, 180 Wn.2d 954, 331 P.3d 29
(2014).
16 Goodyear, 564 U.S. at 919.
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No. 75864-1-1/ 7

business.17 Also, in an exceptional case, a corporation's operations in a state

may be so substantial and of such a nature to make it at home there.18 Folweiler

does not claim that Washington courts have general jurisdiction over FAIR

Health. So we consider whether Washington courts have specific jurisdiction

over FAIR Health in this case.

The court may exercise specific jurisdiction over a nonresident based on

the nonresident's more limited but claim-specific contacts with the state.18

Specific jurisdiction requires a connection between the forum and the

controversy.20 In addition, "the relationship must arise out of contacts that the

'defendant himself' creates with the forum State."21

The Supreme Court of the United States most recently explained the

requirements of specific personal jurisdiction in Bristol-Myers Squibb Co. v.

Superior Court of California.22 The Court noted that specific jurisdiction requires

an "affiliation between the forum and the underlying controversy, principally, [an]

17 BNSF Ry. v. Tyrrell, U.S. , 137 S. Ct. 1549, 1558, 198 L. Ed. 2d
36(2017).
18 Tyrrell, 137 S. Ct. at 1558.
18 FutureSelect, 175 Wn. App. at 886.
28 Bristol-Myers Squibb Co. v. Superior Court of Cal., U.S. , 137 S.
Ct. 1773, 1781, 198 L. Ed. 2d 395(2017).
21 Walden v. Fiore, 571 U.S. 277, 134 S. Ct. 1115, 1122, 188 L. Ed. 2d 12
(2014)(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct.
2174, 85 L. Ed. 2d 528 (1985)).
22 U.S. , 137 S. Ct. 1773, 1779-81, 18 L. Ed. 2d 395 (2017).
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No. 75864-1-1 / 8

activity or an occurrence that takes place in the forum State.'"23 The court

expressly rejected use of a "sliding scale approach" to decide specific jurisdiction

issues.24 This means that a corporation's continuous activity within a state

cannot make up for the lack of an adequate link between that activity and the

claims made in the case.25

The trial court found that FAIR Health's actions were sufficient to subject it

to specific jurisdiction:

I am persuaded that the defendant's collection, compilation and use
of data that is Zip Code specific constitutes a sufficiently purposeful
involvement in the state of Washington such that being held to
answer to claims concerning related conduct in the courts of this
state does not offend traditional notions of fair play and substantial
justice.

Relying on Bristol-Myers Squibb, we disagree.

FAIR Health has contacts in Washington. But they are not sufficiently

connected to the claims made in this lawsuit to make the exercise of specific

personal jurisdiction appropriate. As the trial court observed, FAIR Health's

product is organized geographically and it collects data from Washington to be

used in Washington. But FAIR Health had no direct contact with Progressive or

23 Bristol-Myers Squibb, 137 S. Ct. at 1780 (alteration in original) (quoting
Goodyear, 564 U.S. at 919).
24 Bristol-Myers Squibb, 137 S. Ct. at 1778, 1781 (quoting Bristol-Myers
Squibb Co. v. Superior Court of Cal., 1 Cal. 5th 783, 806, 377 P.3d 874, 206 Cal.
Rptr. 3d 636 (2016)).
25 Bristol-Myers Squibb, 137 S. Ct. at 1781.
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No. 75864-1-1/ 9

the health care providers included in the class of plaintiffs. FAIR Health collects

data in Washington from health insurers and third-party administrators. FAIR

Health does not collect data from auto insurers, like Progressive, or health care

providers, like the class members. FAIR Health has customers in Washington,

but the class's claims did not arise out of those contacts. The class bases its

claims on a contract that FAIR Health had with Mitchell, a company located in

California. Mitchell had a contract with Progressive that had a contract with

Folweiler's patient. Under these facts, FAIR Health's contacts with Washington

are not sufficiently connected to the claims made in this lawsuit to make the

exercise of personal jurisdiction proper.

Folweiler claims that Washington courts have personal jurisdiction under a

stream of commerce theory. In State v. LG Electronics, Inc.,26 the Washington

Supreme Court explained how the stream of commerce theory can be used to

establish the purposeful minimum contacts required by the first prong of a due

process analysis: "where a foreign manufacturer seeks to serve the forum

state's market, the act of placing goods into the stream of commerce with the

intent that they will be purchased by consumers in the forum state can indicate

purposeful availment." Folweiler argues, under LG Electronics, that FAIR Health

26 186 Wn.2d 169, 177, 375 P.3d 1035 (2016) (citing J. McIntyre Mach.,
Ltd. v. Nicastro, 564 U.S. 873, 888-89, 131 S. Ct. 2780, 180 L. Ed. 2d 765(2011)
(Breyer, J., concurring).
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No. 75864-1-1 / 10

is subject to personal jurisdiction in Washington because it placed its product in

the stream of commerce and knew it would be used in the forum.27 But, in LG

Electronics, the Washington Supreme Court expressly rejected the argument that

"mere foreseeability that a product may end up in a forum state" allows specific

jurisdiction.28 "Instead, the defendant's conduct and connection with the State

must be such that it should reasonably anticipate being haled into court there."29

Folweiler does not show that the class's claims made in this lawsuit are

sufficiently connected to FAIR Health's contacts with Washington to make the

exercise of personal jurisdiction proper.

II. Consumer Protection Act Claims

Even if Washington courts had personal jurisdiction over FAIR Health, we

would affirm dismissal because Folweiler fails to show a material issue of fact

that would entitle it to a trial.

Both Folweiler and FAIR Health moved for summary judgment on the CPA

claim. A party moving for summary judgment has the initial burden to show no

genuine issue of fact exists.39 The burden then shifts to the nonmoving party to

"set forth specific facts to rebut the moving party's contentions and show that a

27 See LG Elecs., 186 Wn.2d at 177.
29 LG Elecs., 186 Wn.2d at 177.
29 LG Elecs., 186 Wn.2d at 178.
39 Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182(1989).
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No. 75864-1-1/ 11

genuine issue as to a material fact exists."31 Summary judgment is proper if,

viewing the facts and reasonable inferences in the light most favorable to the

nonmoving party, no genuine issues of material fact exist and the moving party is

entitled to judgment as a matter of law.32 A genuine issue of material fact exists

if reasonable minds could differ about the facts controlling the outcome of the

litigation.33 We review summary judgment orders de novo, engaging in the same

inquiry as the trial court.34

The CPA prohibits "[u]nfair methods of competition and unfair or deceptive

acts or practices in the conduct of any trade or commerce."35 To prevail on a

CPA claim, the plaintiff must show (1) an unfair or deceptive act or practice,

(2) occurring in trade or commerce,(3) a public interest impact, (4) injury to the

plaintiffs business or property, and (5) a causal link between the unfair or

deceptive act and the injury.36 The parties dispute the first and fifth elements

31 Allard v. Bd. of Regents of Univ. of Wash., 25 Wn. App. 243, 247, 606
P.2d 280(1980).
32 CR 56(c); Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95,
64 P.3d 22(2003).
33 Hulbert v. Port of Everett, 159 Wn. App. 389, 398, 245 P.3d 779 (2011).
34 Michak, 148 Wn.2d at 794. Although Folweiler acknowledges the
standard of review is de novo, it nevertheless spends much of its argument
critiquing the trial court's analysis. These arguments do not matter to our
analysis.
35 RCW 19.86.020.
36 Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105
Wn.2d 778, 780, 719 P.2d 531 (1986).
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No. 75864-1-1 / 12

here. Because Folweiler does not create a factual issue about either element,

the trial court properly granted summary judgment to FAIR Health. This means

that the trial court correctly denied Folweiler's summary judgment motion.37

Admissibility of Evidence

Preliminarily, FAIR Health challenges admissibility of certain evidence and

contends that the trial court improperly relied on inadmissible evidence. Courts

may consider only admissible evidence when ruling on a motion for summary

judgment.38 "The trial court has wide discretion in ruling on the admissibility of

expert testimony."39

First, FAIR Health contends that the trial court should not have considered

the declarations of Brendan Burke and Paul ToreIli because Folweiler did not

disclose these witnesses until after it filed its motion for summary judgment.

FAIR Health provides no evidence to support this claim, so we disregard it.4°

Second, FAIR Health contends that Folweiler improperly supported its

motion with deposition transcripts from other cases. FAIR Health claims that the

depositions are inadmissible under CR 32 and ER 802 but offers no legal

37 Because we decide that the trial court properly dismissed the suit, we
do not reach FAIR Health's challenge to class certification.
38 Kinq County Fire Prot. Dist. No. 16 v. Hous. Auth., 123 Wn.2d 819, 826,
872 P.2d 516 (1994).
39 Moore v. Hagge, 158 Wn. App. 137, 155, 241 P.3d 787(2010).
49 RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d
801, 809, 828 P.2d 549 (1992).
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No. 75864-1-1 /13

argument in its appellate briefing. Further, it does not identify the depositions it

objects to. Thus, we also disregard this argument.'"

Third, FAIR Health contends that the Burke declaration is conclusory,

speculative, and lacks adequate foundation. "'It is well established that

conclusory or speculative expert opinions lacking an adequate foundation will not

be admitted.'"42 FAIR Health asserts that Burke has no stated experience with

health care charges or FAIR Health data products and thus lacks foundation for

his opinions. But Burke attests that he holds a PhD in mathematics and

specializes in the application of economics, statistics, and econometrics. The

court properly exercised its discretion in deciding to consider the Burke

declaration.

FAIR Health does not show that the trial court improperly relied on

inadmissible evidence.

Unfair or Deceptive Act or Practice

Next, we consider whether a question of fact exists about the unfair or

deceptive act or practice element of a CPA claim. Whether conduct is an unfair

41 Farmer v. Davis, 161 Wn. App. 420, 432, 250 P.3d 138 (2011)(stating
that if appellate brief lacks citations to legal authority and references to the
record, the court will not consider the argument).
42 Moore, 158 Wn. App. at 155 (quoting Safeco Ins. Co. v. McGrath, 63
Wn. App. 170, 177, 817 P.2d 861 (1991)).
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No. 75864-1-1/ 14

or deceptive act or practice prohibited by the CPA is a question of law.43 The

CPA does not define "unfair" or "deceptive," so the Supreme Court "has allowed

the definitions to evolve through a 'gradual process of judicial inclusion and

exclusion."44 To decide whether a practice is unfair or deceptive, Washington

courts can be guided by federal court decisions applying the Federal Trade

Commission Act (FICA).45 Under the FTCA, a practice is unfair if it'causes or

is likely to cause substantial injury to consumers which is not reasonably

avoidable by consumers themselves and not outweighed by countervailing

benefits."46 "Deception exists `if there is a representation, omission or practice

that is likely to mislead' a reasonable consumer."47 "A plaintiff need not show the

act in question was intended to deceive, only that it had the capacity to deceive a

substantial portion of the public.48

43 Panaq v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 47, 204 P.3d 885
(2009).
44 Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 785, 295 P.3d 1179 (2013)
(internal quotation marks omitted) (quoting Saunders v. Lloyd's of London, 113
Wn.2d 330, 344, 779 P.2d 249(1989)).
45 15 U.S.C. §§ 41-58; Panaq, 166 Wn.2d at 47; Testo v. Russ Dunmire
Oldsmobile, Inc., 16 Wn. App. 39, 50, 554 P.2d 349 (1976).
46 Rush v. Blackburn, 190 Wn. App. 945, 963, 361 P.3d 217 (2015)
(quoting Klem, 176 Wn.2d at 787 (quoting 15 U.S.C. § 45(n))).
47 Panag, 166 Wn.2d at 50 (quoting Sw. Sunsites, Inc. v. Fed. Trade
Comm'n, 785 F.2d 1431, 1435 (9th Cir. 1986)).
48 Panaq, 166 Wn.2d at 47.
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Folweiler contends that FAIR Health engaged in unfair practices by

licensing its database to companies that it knew would use it to violate the CPA.

Essentially, Folweiler claims that because the database is not suitable for the

purpose for which it claims that Mitchell and Progressive used it (i.e., determining

usual, customary, and reasonable rates for Washington providers), FAIR Health

acted unfairly by licensing the data to Mitchell. Folweiler makes a number of

arguments to show that the database is not suited for the purpose Mitchell and

Progressive used it." But FAIR Health's user guide also contains a disclaimer,

explaining the limitations on the use of the database:

The data provided in the FAIR Health product modules[] should be
used only for informational purposes consistent with the terms of
client's license to use such data. FAIR Health is not determining,
developing or establishing an appropriate fee or reimbursement
levels for client and its business. Rather, the data represents
charge benchmarks for various geographic areas based on the
claims data contributed to FAIR Health. The data, including each of
the FAIR Health product modules, is not a fee schedule and should
not be used as a substitute for client's own judgment in setting
reimbursement rates. Indeed, it is the client's responsibility to
ascertain the suitability of the data for the client's purposes. FAIR
Health disclaims any endorsement, approval, or recommendation of

49 Folweiler asserts that FAIR Health uses the same flawed system as
Ingenix, specifically claiming the data was flawed in the following ways: (1)the
geo-zip data does not correspond to a reasonable medical market because each
geo-zip encompasses an area with a variety of communities with access to a
range of resources, (2) the data does not include data from all health care
providers in the geo-zip or one charge for every amount charged for the same
treatment or procedure,(3) FAIR Health does not collect data from auto insurers,
and (4)the data does not include information about a provider's credentials,
certifications, or years of experience.
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No. 75864-1-1/ 16

data in the modules. Any reliance upon, interpretation of and/or
use of the data by client to establish a fee schedule or set a rate is
in client's sole discretion.

The parameters that FAIR Health set for the use of its product show that it did not

act unfairly when it licensed its product.

Folweiler contends that the user guide should not be used as evidence of

FAIR Health's intent. Folweiler correctly notes that intent is not required to show

an unfair or deceptive practice.5° But the user guide is still evidence of what the

product is, what it is not, and how it should be used. In light of the user guide,

Folweiler's argument that FAIR Health's product is flawed fails.

Folweiler compares this case to Federal Trade Commission v. Neovi,

Inc.,51 a Ninth Circuit decision interpreting federal trade statutes. We distinguish

Neovi. Neovi discusses causation but is useful in deciding whether the act in

question is unfair or deceptive. There, the defendant Qchex operated a website

that allowed users to create and deliver unverified checks drawn on unauthorized

accounts.52 The court found causation where the defendant "created and

controlled a system that facilitated fraud and that the company was on notice as

to the high fraud rate."53 The court emphasized that Qchex was not liable under

a theory of "aiding and abetting" but had itself "caused harm through its own

50 Panaq, 166 Wn.2d at 47.
51604 F.3d 1150 (9th Cir. 2010).
52 Neovi, 604 F.3d at 1154-55.
53 Neovi, 604 F.3d at 1155.
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No. 75864-1-1/ 17

deeds."54 The court explained that Qchex "engaged in behavior that was, itself,

injurious to consumers" by "creating and delivering unverified checks."55 Unlike

Neovi, this case does not involve an unfair act by FAIR Health itself.

CPA liability does not extend to a party that compiles data and clearly

explains the limitations of that data simply because a licensee ignores those

limitations and later uses it improperly. FAIR Health's conduct was not unfair or

deceptive under the CPA.

Proximate Cause

Next, Folweiler challenges the trial court's conclusion about proximate

cause. Proximate cause generally has two elements: "but for" or factual

causation and legal causation.56 Whether the defendant's acts were a "but for"

cause of injury is typically a question of fact for the jury.57 But when the facts are

undisputed and the inferences from them are not subject to any reasonable

difference of opinion, the question of "but for" cause becomes a question of law.59

Legal causation is a question of law for the court.59

54Neovi, 604 F.3d at 1157.
Neovi, 604 F.3d at 1157.
56 Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 610-11, 257 P.3d 532
(2011).
57 Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162
Wn.2d 59, 84, 170 P.3d 10(2007).
58 Tae Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 203, 15 P.3d
1283(2001); Ward v. Zeugner,64 Wn.2d 570, 574-75, 392 P.2d 811 (1964).
Tae Kim, 143 Wn.2d at 204.
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No. 75864-1-1 /18

In a footnote, FAIR Health claims that Folweiler cannot establish "but for"

causation. It asserts that Progressive could have relied on other databases to

reduce Folweiler's reimbursement. If FAIR Health is correct, it has identified a

question of fact to be determined by the jury. We cannot conclude as a matter of

law that FAIR Health was not the "but for" cause of the alleged injury.

But Folweiler has not shown legal causation. Folweiler claims that the

CPA does not require a plaintiff to show legal causation. We disagree. Folweiler

relies on our Supreme Court's comment in its discussion of the causation

element in a CPA claim in Indoor Billboard/Washington, Inc. v. Integra Telecom

of Washington, Inc.,6° where the court stated that the causation element of the

CPA requires a plaintiff to establish that "but for the defendant's unfair or

deceptive practice, the plaintiff would not have suffered an injury." Folweiler

asserts that this defines the causation test for the CPA and does not require legal

causation. But Indoor Billboard does not stand for the proposition that the CPA

requires only "but for" causation without the usual other legal causation prong.

Indoor Billboard considered a contention that to prove causation under the CPA,

the plaintiff had to show only that it paid invoices with allegedly improper

surcharges.61 The court decided that this- was not enough because it did not

60 162 Wn.2d 59, 84, 170 P.3d 10 (2007).
61 Indoor Billboard, 162 Wn.2d at 78.
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No. 75864-1-1/ 19

satisfy the "but for" cause standard.62 But the court did not address legal

causation.63 The CPA also requires legal causation.

To decide if legal causation exists, a court considers whether "as a matter

of policy, the connection between the ultimate result and the act of the defendant

is too remote or insubstantial to impose liability."64 The determination depends

upon "mixed considerations of logic, common sense, justice, policy, and

precedent.'"65 FAIR Health contends that the relationship was too remote

because it provided only data, which did not cause the alleged injury. Assuming

there was an injury, Mitchell's and Progressive's alleged misuse of the data

caused it. We agree that the alleged injury here is too remote to support liability

under the CPA. FAIR Health's user guide states that the data should not be

used in the way that Mitchell and Progressive allegedly used it. Folweiler cannot

establish FAIR Health's legal responsibility with evidence that Progressive and

Mitchell chose to use the data in a way contrary to FAIR Health's instructions.

Thus, Folweiler cannot establish legal causation.

62 Indoor Billboard, 162 Wn.2d at 83
63 See Indoor Billboard, 162 Wn.2d at 78-85.
64 Michaels, 171 Wn.2d at 611.
65 Michaels, 171 Wn.2d at 611 (internal quotation marks omitted)(quoting
Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468, 478-79, 951 P.2d 749
(1998)).
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No. 75864-1-1 /20

III. Request for CR 56(f) Continuance

Folweiler next contends that the trial court improperly denied its CR 56

motion for a continuance. This court reviews a trial court decision on a motion to

continue for manifest abuse of discretion.66 CR 56(f) permits a court to order a

continuance to allow a party opposing a motion to conduct discovery. Courts

may deny a continuance motion "when `(1) the requesting party does not offer a

good reason for the delay in obtaining the desired evidence; (2) the requesting

party does not state what evidence would be established through the additional

discovery; or (3) the desired evidence will not raise a genuine issue of material

fact.'"67 Folweiler sought the continuance after it had already moved for

summary judgment on liability. Yet, it argues that the trial court "refus[ed] to give

Folweiler a fair opportunity to prove its CPA claims." The fact that Folweiler had

previously moved for summary judgment on the exact issues on which it claims it

needed more discovery undermines its argument. Under these circumstances,

the trial court did not abuse its discretion when it denied Folweiler's continuance

motion.

66 COCICIle
v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554 (1990).
67Pitzer v. Union Bank of Cal., 141 Wn.2d 539, 556, 9 P.3d 805 (2000)
(internal quotation marks omitted) (quoting Tellevik v. 31641 W. Rutherford St.,
120 Wn.2d 68, 90, 838 P.2d 111,845 P.2d 1325 (1992)).
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No. 75864-1-1/ 21

IV. Attorney Fees

FAIR Health appeals the trial court's denial of its request for attorney fees

and costs under Washington's long-arm statute. When a defendant is personally

served outside the state and prevails in the action, RCW 4.28.185(5) permits the

court to award as attorney fees, reasonable costs of defending the action. One

purpose of this provision is to compensate defendants for the added expense

caused by plaintiff's assertion of long-arm jurisdiction.68 "Such an award is

discretionary and is limited to the amount necessary to compensate a foreign

defendant for the added costs of litigating in Washington."68

Here, the trial court denied FAIR Health's request for fees and explained,

"Given that this was a Washington CPA claim, that jurisdiction was found to be

proper in Washington and that fees and costs may very well have been higher in

[New York], the court declines to make any RCW 4.28.185 award." We agree

that the court abused its discretion because no evidence indicates that it would

have been more expensive for FAIR Health to litigate in New York. In fact, FAIR

Health introduced evidence that it spent more litigating in Seattle because its

Seattle-based counsel charged higher hourly rates than its New York-based

Fetzer Co. v. Weeks, 114 Wn.2d 109, 122, 786 P.2d 265(1990).
68 Scott
89 Payne v. Saberhacien Holdincis, Inc., 147 Wn. App. 17, 36, 190 P.3d
102(2008).
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No. 75864-1-1/ 22

counsel. Thus, FAIR Health is entitled to attorney fees incurred in this litigation

and also on appea1.7°

CONCLUSION

We affirm the dismissal of Folweiler's claims. We remand so the trial court

can reconsider its attorney fee decision and award reasonable fees to FAIR

Health.

WE CONCUR:

I

70 RAP 18.1(a).
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