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Kelly v. Allianz Life Ins. Co. of North America

Court of Appeals of Washington, Division 3

December 17, 2013

Colleen Kelly, Appellant,
v.
Allianz Life Insurance Company of North America, Respondent

Appeal from Spokane Superior Court. Docket No: 11-2-03456-3. Date filed: 07/27/2012. Judge signing: Honorable Gregory D Sypolt.

Whitney J. Baran and David J. Lenci (of K& L Gates LLP ), for appellant.

David R. Ebel, Claire L. Been, and Averil B. Rothrock (of Schwabe Williamson & Wyatt PC ), for respondent.

AUTHOR: Teresa C. Kulik, J. WE CONCUR: Laurel H. Siddoway, A.C.J., George B. Fearing, J.

OPINION

[178 Wn.App. 396] Kulik, J. --

¶ 1 Colleen Kelly appeals summary judgment dismissal of her lawsuit against Allianz Life Insurance Company. She contends the trial court erred in deciding her claims were time barred under the six-year statute of limitations applicable to contract based claims. Ms. Kelly additionally contends that she was entitled to 12 percent interest on the principal repayment rather than the 3 percent interest Allianz paid her when it returned her investment. We review a challenge to the statute of limitations de novo. Here, we agree that Ms. Kelly's action is time barred because she did not file within the six-year statute of limitations, which began

Page 756

to run on June 27, 2005, if not earlier when she purchased the annuities in 2004. Ms. Kelly filed her lawsuit on August 19, 2011.

¶ 2 We affirm the trial court's summary judgment dismissal.

FACTS

¶ 3 In 2004, Colleen Kelly purchased three annuity contracts from Curtis Horton, an Allianz Life Insurance Company insurance agent. On June 27, 2005, the Washington State Office of the Insurance Commissioner informed Ms. Kelly that the annuities were not authorized for sale in Washington State. On August 5, 2005, Ms. Kelly then requested that Allianz terminate the contracts " at their current value, without penalty." Clerk's Papers (CP) at 104. She did not mention interest.

¶ 4 On September 13, 2005, Allianz notified Ms. Kelly that it agreed to cancel the three policies and return the premiums with three percent interest. With the cancellation letter, it included three checks for the premium money, [178 Wn.App. 397] plus three percent interest, for a total of $141,221.69. Ms. Kelly deposited the checks in her bank account and the funds cleared.

¶ 5 On March 20, 2006, Ms. Kelly contacted Allianz, stating that an attorney had advised her that she should have received a refund based on a 12 percent rate of interest. Over the next several years, Ms. Kelly and her attorney sporadically discussed the added interest Ms. Kelly claimed she was owed.

¶ 6 Ms. Kelly filed a lawsuit against Allianz on August 19, 2011, asserting a cause of action for unpaid interest in the amount of $14,544 under RCW 19.52.010.[1] Allianz filed a CR 12(b)(6) motion to dismiss, arguing that Ms. Kelly failed to allege any cause of action. The trial court denied the motion but ordered Ms. Kelly to ...


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