(concurring) — While I concur in the majority’s resolution of the issue pertaining to the Gos-setts’ insurable interest in the property, I disagree with its application of a constitutional analysis to a common-law rule, particularly one adopted pursuant to our equitable power. In Olympic S.S. Co., Inc. v. Centennial Ins. Co., 117 Wn.2d 37, 811 P.2d 673 (1991), and McGreevy v. Oregon Mut. Ins. Co., 128 Wn.2d 26, 904 P.2d 731 (1995), we adopted an additional equitable exception to the American rule on attorney fees where an insurance carrier breached its duty to indemnify an insured. Olympic S.S. and McGreevy control in this case.
Neither the majority nor Farmers cites authority for the view we must engage in a constitutional review of a previously announced common-law equitable decision of the Washington Supreme Court, whether on due process *984or equal protection grounds. Such a contention borders on the frivolous, and merely opens each common-law ruling a Washington court may make to an additional round of unneeded litigation.
While it goes without saying we are not free to act in disregard of either the federal or state constitutions, it also should go without saying our announcement of common-law rules ordinarily subsumes any constitutional considerations that may exist. It is difficult to see how Farmers can believe it was deprived of due process, procedural or substantive, when we announced our decisions in Olympic S.S. and McGreevy.
Similarly, it is difficult to discern how Farmers was deprived of equal protection of the law. We decided in the Olympic S.S./McGreevy line of cases to award attorney fees as an equitable matter to policyholders who have to sue to obtain the benefits of their policy coverage. I cannot conceive of what useful task the majority would set for us in a constitutional analysis of the Olympic S.S./ McGreevy holdings or any other common-law rule. Must we now, years later, emptily recite we had a "rational basis” for our decision simply because a new opponent of the Olympic S.S./McGreevy rule raises an equal protection challenge?8 Our quintessential function is to make decisions on a rational basis, although, of course, there may always be those who claim in every case we have not done so. Mere disagreement with an outcome does not give rise to a constitutional challenge, however.
*985In its classic formulation, equity is an exception to a principle of law and is designed to do justice in an appropriate case. Farmers’ attempt to apply a constitutional analysis to an equitable principle is a significant attack on the inherent power of the Court to do equity, and is fraught with potential for mischief.
The majority’s approach to this issue is unprecedented and unwarranted. We should not open the door to this kind of collateral attack on our common-law rulings.9 I would reject Farmers’ claim without reaching the merits because we adhere to the Olympic S.S.I McGreevy rule.
Guy, J., concurs with Talmadge, J.
Reconsideration denied February 6, 1998.
Strict scrutiny applies when the allegedly discriminatory classification affects a suspect class or threatens a fundamental right. Intermediate scrutiny applies in the limited circumstances where the law affects important rights or semi-suspect classifications. The rational basis test applies where the statutory classification does not involve a suspect or semi-suspect class and does not threaten a fundamental right. State v. Heiskell, 129 Wn.2d 113, 123-24, 916 P.2d 366 (1996). Farmers suggests intermediate scrutiny is the appropriate standard of review for its equal protection claim because the “right to be indemnified for personal injuries is a substantial property right.” Br. of Appellant at 35. But Farmers’ right to be indemnified for personal injuries is not at stake in this case. Farmers does not claim membership in a semi-suspect or suspect class, or that it has any fundamental rights at stake. Thus, the rational basis test would be appropriate in this case were there is a need for an equal protection analysis.
A party is, of course, always free in our common-law system to ask us to revisit a common-law rule and to repeal or reshape such a rule. Constitutional grounds may be advanced for such a request. See Lundgren v. Whitney’s Inc., 94 Wn.2d 91, 96, 614 P.2d 1272 (1980) (Court abandoned common-law rule that wife had no cause of action for loss of consortium when husband was injured, noting that such a rule could violate equal protection or Washington’s Equal Rights Amendment principles because a husband had such a cause of action for injuries to his wife).