the third time this case is before us on appeal. This appeal
addresses whether defense counsel for Heather
Hofferbert had authority to appear and act on her
behalf regarding a vehicle damage claim filed against her by
Tori Kruger-Willis. Kruger-Willis appeals the trial
court's decision denying her RCW 2.44.030 motion and
ruling that defense counsel had the authority to represent
Hofferbert, entering judgment against Kruger-Willis, and
denying her motion to reconsider. In the published portion of
this opinion, we hold that the trial court did not err in
holding that defense counsel had authority to represent
Hofferbert, and we affirm the trial court's decision. In
the unpublished portion, we hold that the trial court did not
err in its entry of judgment and affirming its order. We also
hold that Kruger-Willis was not denied the right to a fair
hearing and that Hofferbert is entitled to attorney fees as
the prevailing party in this appeal.
action arose out of a motor vehicle collision that occurred
in 2008. Hofferbert drove a truck that struck and damaged
Kruger-Willis's parked vehicle. GEICO, Hofferbert's
insurance company, paid to repair Kruger-Willis's
vehicle. Kruger-Willis then sued Hofferbert to recover the
diminished value of her repaired vehicle. GEICO hired defense
counsel and paid the costs of Hofferbert's defense
pursuant to its contractual duty to defend her.
insurance contract required that GEICO "will defend any
suit for damages payable under the terms of this
policy." Clerk's Papers (CP) at 694. The contract
further specified that GEICO will pay "damages which an
insured becomes legally obligated to pay because of
. . . [d]amage to or destruction of property, " so long
as the damage arose from the ownership, maintenance, or use
of a covered vehicle. CP at 693-94. The contract defined an
"insured" to include "[a]ny other person using
the auto with your permission." CP at 695.
a three-day trial, the jury rendered a verdict in
Hofferbert's favor. The trial court awarded Hofferbert $11,
490 in costs and attorney fees. Kruger-Willis appealed the trial
court's award of attorney fees and costs. In an
unpublished opinion, we held that Hofferbert had standing to
recover fees and costs as the aggrieved party in the
underlying action and was the prevailing party entitled to
fees and costs, regardless of the fact that GEICO was
defending her. Kruger-Willis v. Hoffenburg, noted at
173 Wn.App. 1024, slip op. at *5 (2013)
our decision, Kruger-Willis's counsel executed a check
for $11, 490 payable to Hofferbert despite defense
counsel's request that the check be made payable to
Hofferbert's insurer, GEICO. Defense counsel asked
Kruger-Willis's counsel to reissue the check payable to
GEICO, but Kruger-Willis's counsel refused because GEICO
was not a party to the suit. Defense counsel filed a motion
to enforce the trial court's award of costs and attorney
fees. In support of his motion, defense counsel stated that
Hofferbert had never been involved in the defense of the case
against her and that he (defense counsel) worked for GEICO.
The trial court granted this motion, but named Hofferbert and
not GEICO as the judgment creditor.
then filed a motion for defense counsel to produce or prove
the authority under which he appeared and to stay all
proceedings until such authority was produced or provided.
See RCW 2.44.030. During argument on this motion,
defense counsel admitted that he had "not had contact
with the named defendant in this lawsuit." CP at 640.
However, defense counsel asserted that he had authority to
appear for Hofferbert under the terms of the insurance
contract. The trial court denied Kruger-Willis's motion.
appeal, we held that where civil defense counsel admitted
that he never had any contact with his client, the trial
court abused its discretion by denying opposing counsel's
motion to require counsel to prove the authority under which
he appears. Kruger-Willis v. Hoffenburg, noted at
187 Wn.App. 1010, slip op. at *4 (2015)
(Kruger-Willis II). We reversed and remanded to the
trial court to determine whether defense counsel had the
authority to appear for Hofferbert in this case.
Kruger-Willis II, slip op. at *5.
remand, Kruger-Willis renewed her motion under RCW 2.44.030.
After a hearing, the trial court ruled that defense counsel
had authority to represent Hofferbert under the omnibus
clause in the insurance policy; an omnibus clause was
required to be present in the policy under RCW
46.29.490(2)(b); defense counsel did not surrender any of
Hofferbert's substantial rights; and Hofferbert ratified
defense counsel's actions after the fact. Kruger-Willis
moved to reconsider, and the trial court denied the motion.
Kruger-Willis appeals the trial court's ruling.
the second appeal was pending, Hofferbert made a motion in
the trial court for a judgment on sum certain based on the
trial court's 2011 order. After a hearing, the trial
court found that the 2011 order contained a scrivener's
error by stating that payment shall be made to
Hofferbert's attorney, Mary E. Owen & Associates,
rather than to Hofferbert. The trial court also found that
Kruger-Willis's tender of the check in 2013, payable to
Heather Hofferbert and delivered to Mary E. Owen &
Associates, did not constitute an accord and satisfaction.
Finally, the trial court held that judgment would be entered
in favor of Hofferbert against Kruger-Willis in the amount of
$11, 490 with interest accruing from the date of the 2011
order. The next day, Kruger-Willis filed a bond supersedeas
with the county clerk to cover the judgment and costs on
appeal, including interest. Kruger-Willis amended her pending
appeal and now also appeals the judgment.
Standards of Review
a mandate for further proceedings, a trial court must comply
with that mandate, and we review the trial court's
compliance for an abuse of discretion. See Bank of Am.,
N.A. v. Owens, 177 Wn.App. 181, 189, 311 P.3d 594
(2013). A trial court abuses its discretion when its decision
is manifestly unreasonable or based on untenable grounds or
reasons. Yousoufian v. Office of Ron Sims, 168 Wn.2d
444, 458, 229 P.3d 735 (2010). A court's decision is
manifestly unreasonable if it is outside the range of
acceptable choices, given the facts and the applicable legal
standard; it is based on untenable grounds if the factual
findings are unsupported by the record; it is based on
untenable reasons if it is based on an incorrect standard or
the facts do not meet the requirements of the correct
standard. Mayer v. Sto Indus., Inc., 156 Wn.2d 677,
684, 132 P.3d 115 (2006).
uphold a trial court's findings of fact if those findings
are supported by substantial evidence. Hegwine v.
Longview Fibre Co., 132 Wn.App. 546, 555, 132 P.3d 789
(2006). Substantial evidence is that which is sufficient to
persuade a fair-minded individual of the truth of the matter
asserted. Hegwine, 132 Wn.App. at 555-56.
Authority To Appear
argues that the trial court erred in finding that GEICO's
retained defense counsel had the authority to represent
Hofferbert. Kruger-Willis claims that defense counsel lacked
the authority to represent Hofferbert because counsel had no
contact with her throughout the course of the litigation, and
therefore, Hofferbert could not have provided such
authority. We hold that when an insurer has a
contractual obligation to defend its insured, that insurer