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Aetna Casualty & Surety Co. v. Yang

September 16, 1996


Appeal from Superior Court of King County. Docket No: 94-2-09268-5. Date filed: 02/24/95. Judge signing: Hon. Larry Jordan.

PER CURIAM. James Yang filed this action against Aetna Casualty and Surety Company to compel arbitration of his UIM claim involving a "phantom" vehicle. The trial court entered summary judgment in favor of Aetna. We agree with Yang that there are factual issues as to when the statute of limitation began to run and whether there was sufficient corroboration of the phantom vehicle. But because it is undisputed that Yang made no effort to identify the phantom driver, he failed, as a matter of law, to establish that the phantom vehicle was underinsured. Accordingly, we affirm the summary judgment.

The materials before the trial court, viewed in the light most favorable to appellant Yang, establish the following sequence of events.

On July 9, 1985, at about 1:30 a.m., the vehicle that Yang was driving left the roadway, striking a fire hydrant and street sign. Yang and his passenger, Choong Park, were injured. Yang alleges that he drove off the road in order to avoid a head-on collision with an oncoming "phantom vehicle." The police report, which contains no reference to the phantom vehicle, indicates that Yang was cited for negligent driving.

On October 11, 1985, attorney Kathryn Koehler wrote to Aetna, Yang's insurer, stating that she was representing both Yang and Park, who had received payments from Aetna for medical bills. Koehler opined that additional UIM coverage was available to both Yang and Park under Yang's

UIM policy.

On March 13, 1986, Koehler wrote to Carol Peterson of Aetna to document a telephone call that occurred on March 10 between Peterson and Penny Campos-Graham, Koehler's assistant:

Penny also suggested that you were attempting to close the file with regard to Mr. Yang. Penny indicated that you wish to decline coverage of Mr. Yang's injuries based on the fact that the vehicle which hit him was a phantom vehicle, that there was no physical contact between the vehicles, and that there were no independent witnesses . . . . (Italics ours.) The record does not indicate that Aetna replied to this letter.

On April 14, 1994, Yang filed this action to compel arbitration. Aetna moved for summary judgment, arguing (1) the statute of limitation had expired on Yang's claim; (2) Yang failed to submit any corroborating evidence that the accident was caused by a phantom vehicle; and (3) Yang failed to make any effort to determine the identity of the alleged phantom vehicle. In response to Aetna's motion for summary judgment, Yang submitted a declaration from Choong Park describing the accident. On February 24, 1995, the trial court granted Aetna's motion and dismissed Yang's claims.

Yang first contends that there is a material factual issue as to whether the statute of limitation expired on his UIM claim. The parties agree that the 6-year statute of limitation governing Yang's claim for benefits began to run on the date that Aetna allegedly breached the contract, i.e., on the date that it denied Yang's claim and notified him of the denial. See Safeco Ins. Co. v. Barcom, 112 Wash. 2d 575, 583-84, 773 P.2d 56 (1989). Yang argues that the statute began to run no earlier than August 18, 1993, when Aetna expressly rejected his claim in writing.

Relying solely on the March 13, 1986, letter from Kathryn Koehler, Yang's attorney at the time, Aetna maintains that Yang's action accrued no later than March 10, 1986, when it orally denied Yang's claim for UIM benefits and that the statute of limitation therefore expired in 1992. We disagree.

Koehler's letter documents her Discussion with an assistant about the assistant's telephone conversation with an Aetna representative. Nothing in the letter attributes to the Aetna representative an outright denial of Yang's claim. Rather, the letter summarizes the assistant's tentative assessment that Aetna was "attempting" to "close" Yang's file and that Aetna "wished" to decline coverage because there were no independent witnesses to the phantom vehicle.

Unless the evidence is undisputed or reasonable minds cannot differ, what a person knew or should have known at a given time is a question of fact. See Gillespie v. Seattle-First Nat'l Bank, 70 Wash. App. 150, 170, 855 P.2d 680 (1993), review denied, 123 Wash. 2d 1012, 869 P.2d 1084 (1994). When Koehler's letter is viewed in the light most favorable to Yang, reasonable persons could differ as to whether it establishes Aetna's denial of Yang's claim or merely reflects settlement "posturing" by both sides. Accordingly, Aetna was not entitled to summary judgment on the basis that the statute of limitation had expired on Yang's claim. *fn1

Yang next contends that Park's declaration describing the accident constitutes sufficient independent corroboration of a phantom vehicle to preclude summary judgment. By statute, an insurer may condition UIM benefits on corroboration when the claimant alleges that a "phantom vehicle" caused his or her damages. See RCW 48.22.030(8). The insurer may require corroboration from someone other than the insured or a person having an underinsured motorist claim. RCW 48.22.030(8)(a). On November 25, 1987, Park executed a release, ...

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