University of Washington obtained a jury verdict against
Government Employees Insurance Company (GEICO) for violation
of the Consumer Protection Act (CPA), chapter 19.86 RCW.
GEICO appeals, arguing that the trial court abused its
discretion when it granted the University's motion to
amend its complaint to add a CPA claim and erred as a matter
of law when it allowed the University to even bring a CPA
claim. GEICO also maintains that the trial court abused its
discretion when it denied GEICO's motions for judgment as
a matter of law, for a new trial, and remittitur; that the
jury award was so excessive as to be the result of passion or
prejudice; and that the University was not legally entitled
to recover attorney fees incurred for pursuing its CPA claim.
Finding no error, we affirm.
March 2011, Kyle Murphy, a GEICO insured driver, and Officer
Ruslan Sattarov, a University of Washington Police Department
(UWPD) officer, were in a two-car accident in the University
District of Seattle, Washington. Murphy drove his vehicle
into an intersection with a green light as Officer Sattarov,
responding to a call in his patrol car, entered on a red
light. The cars collided. Officer Sattarov's car crashed
into the storefront of American Apparel, causing property
Lennier was riding in Murphy's car, and UWPD Officer
Stefan Pentcholov was Officer Sattarov's passenger.
Officer Sattarov's vehicle injured two pedestrians, James
Howard and Megatron Lawrence. Murphy's insurance policy
had limits of $50, 000 for property damage and $100, 000 for
bodily injury per person, up to $300, 000 per occurrence.
assigned Andrea Kravitz to be its primary claims adjuster for
the incident. The University assigned Wendy Winslow-Nason
from its risk management department to handle the claims.
Murphy, Lennier, Howard, Lawrence, and American Apparel all
became claimants of GEICO.
April 2011, Kravitz notified the claimants that GEICO had
determined that Murphy bore 60 percent of the fault and the
University bore 40 percent of the fault. But Kravitz sent
UWPD a letter that stated that Murphy bore 40 percent of the
fault and the University bore 60 percent of the fault.
Kravitz did not immediately inform the University of this
on GEICO's representation that the University bore 60
percent of the fault, Winslow-Nason negotiated with Kravitz
to split liability equally between GEICO and the University
(the Agreement). The Agreement would apply to all personal
injury and property damage claims. Both sides believed they
were improving their position from 60 percent liability to 50
sent a confirming e-mail to Kravitz, stating, "This
confirms that we have agreed to apportion liability 50/50 in
regard to this loss." Kravitz acknowledged the e-mail and the
Agreement in her claim file.
2011, Zachary Kozma, a new GEICO claims adjuster assigned to
the incident, faxed Winslow-Nason a document disclaiming all
liability on behalf of GEICO until he had completed his
investigation. The University received the Seattle Police
Department's Case Investigation Report (CIR) on July 15,
2011. The CIR concluded that Officer Sattarov's actions
were the proximate cause of the collision and attributed
liability to the University.
20, 2011, Winslow-Nason e-mailed Kozma in response to his
disclaimer of liability with attached witness statement
summaries from the CIR and a redacted copy of the CIR. Kozma
confirmed the Agreement after receiving the requested
information. It was not until October 2015 that GEICO
discovered that Winslow-Nason had access to the complete CIR
by July 15, 2011.
parties settled three of the outstanding claims under the
Agreement. Winslow-Nason continued to evaluate the remaining
claims under the assumption that the Agreement between the
University and GEICO would apply. In March 2013,
Winslow-Nason told Nathan Broderick, GEICO's new claims
adjuster, that she valued Lennier's claims as up to $20,
000, and that GEICO would be responsible for half of that
Winslow-Nason agreed to release Murphy from liability in
exchange for GEICO reimbursing the University for the Lennier
settlement under the Agreement, and Broderick stated that the
Lennier settlement amount was acceptable. GEICO's next
claims adjuster, Joshua Kipp, confirmed with Winslow-Nason
that the University would handle the outstanding settlements
and seek 50 percent reimbursement from GEICO.
February 2014, Howard filed a lawsuit against GEICO and the
University, and Kipp and Winslow-Nason discussed the
possibility of jointly defending the suit. Kipp later told
Winslow-Nason that GEICO wished to defend the suit with its
in-house counsel, but that the parties would cooperate on
September 2014, Winslow-Nason settled Lawrence's personal
injury claim for $19, 500 and the University paid the
settlement in full. GEICO refused to reimburse the
University. GEICO then refused to honor the Agreement for the
Howard and Lennier claims. In October 2014, Winslow-Nason
learned from Murphy's lawyer that GEICO was taking the
position that it was not liable at all for the incident.
University sued GEICO in April 2015. The University alleged
that the Agreement was a contract, that GEICO had breached
the Agreement, and that the University was entitled to
equitable relief. On October 14, 2015, the trial court
granted the University's motion for leave to amend its
complaint. On October 20, shortly before the trial date, the
University filed its amended complaint, which added a claim
for violation of the CPA. The University alleged that
GEICO's repudiation of the Agreement was an unfair or
deceptive act in trade or commerce that affected the public
interest. GEICO filed an amended answer on October 28, 2015,
which generally denied the University's new claim.
trial began on November 4, 2015. Several of the
University's claims, including its breach of contract and
CPA claims, proceeded to a jury trial. The court reserved
decision on the University's equitable claims until after
trial. GEICO stipulated that its repudiation of the Agreement
occurred in trade or commerce and affected the public
Jury returned a verdict finding in part that the Agreement
was a binding contract between the parties, that GEICO had
breached the Agreement and caused the University $9, 750 in
damages, and that GEICO had violated the CPA and caused $300,
000 in damages to the University. Relying on the evidence
before the jury, the trial court ruled in favor of the
University on its equitable claims.
trial court denied GEICO's posttrial motion for new trial
or remittur for the CPA claim, and awarded the University
$495, 033.75 in attorney fees incurred in pursuing its
for Leave to Amend Complaint
contends that the trial court abused its discretion when it
granted the University's motion to amend its complaint to
add a claim for violation of the CPA.Because GEICO possessed most
of the evidence underlying the University's CPA claim and
the CPA claim relied on nearly identical evidence as the
University's breach of contract claim, we disagree.
responsive pleading is served, a party may amend its pleading
only by leave of the court or by written consent of the
adverse party, and such "leave shall be freely given
when justice so requires." CR 15(a). A party's
response to the amended pleading is due within the shorter of
"the time remaining for response to the original
pleading or within 10 days after service of the amended
pleading." CR 15(a). CR 15 is "'designed to
facilitate the amendment of pleadings except where prejudice
to the opposing party would result.'" Caruso v.
Local Union No. 690,100 Wn.2d 343, 349, 670 P.2d 240
(1983) (quoting United States v. Houqham, 364 U.S.
310, 316, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960)).
court should deny a motion to amend a complaint only when the
amendment would prejudice the nonmoving party. Wilson v.
Horsley, 137 Wn.2d 500, 505, 974 P.2d 316 (1999).
Factors relevant to analyzing whether allowing an amendment
would prejudice the nonmoving party include undue delay,
unfair surprise, and jury confusion. Wilson, 137
Wn.2d at 505-06. A trial court's decision to grant or
deny a motion for leave to amend is reviewed for an abuse of
discretion. Wilson, 137 Wn.2d at 505.
fact that an amendment may introduce a new issue is
insufficient, by itself, to require denial of a motion to
amend. Bowers v. Good, 52 Wash. 384, 386, 100 P. 848
(1909). Instead, the court examines whether a party would be
"prepared to meet the new issue." Bowers,
52 Wash, at 386. If a new claim or issue is added through the
amendment, similarities between the elements or evidence
relied upon for the existing and new claims weigh against a
finding of prejudice. See, e.g., Kirkham v.
Smith, 106 Wn.App. 177, 181, 23 P.3d 10 (2001).
opposing the University's motion to add a claim for
violation of the CPA, GEICO argued that the new claim was
unsupported by facts or law. GEICO did not provide specific
arguments that it would be prejudiced by the amendment; GEICO
focused on the University's alleged lack of justification
for the amendment and GEICO's cooperation during
trial court did not abuse its discretion when it granted the
University's motion to amend. GEICO was not prejudiced by
undue delay because GEICO itself withheld the evidence
underlying the University's CPA claim until late in the
discovery process. This included internal GEICO documents and
correspondence, depositions of GEICO employees and witnesses,
and the reneging adjuster's prior history of similar
conduct. For a similar reason, GEICO cannot argue undue
surprise, as it was aware of the evidence it held and it
cannot rationally be surprised by the addition of a new claim
relying on that evidence following its disclosure.
the University's breach of contract and CPA claims relied
on nearly identical testimony and evidence. In a breach of
contract action, the plaintiff must prove that a valid
agreement existed between the parties, the agreement was
breached, and the plaintiff was damaged. Lehrer v. State.
Dep't of Social & Health Servs., 101 Wn.App.
509, 516, 5 P.3d 722 (2000). To prevail on a private CPA
claim, a plaintiff must establish that the defendant engaged
in "(1) [an] unfair or deceptive act or practice; (2)
occurring in trade or commerce; (3) public interest impact;
(4) injury to plaintiff in his or her business or property;
(5) causation." Hangman Ridge Training Stables. Inc.
v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d
531 (1986). Breach of a private contract may affect the
public interest and, thus, be actionable under the CPA.
Hangman Ridge, 105 Wn.2d at 790.
University's breach of contract and CPA claims both
required a showing of damages and causation. GEICO stipulated
that its act of repudiating the Agreement occurred in trade
or commerce and affected the public interest. Thus, the only
difference between the University's breach of contract
and CPA claims was whether the breach of the Agreement was an
unfair or deceptive act or practice within the meaning of the
CPA. Because the unfair or deceptive practice element of the
University's CPA claim was based on the breach of the
Agreement and GEICO stipulated that its act occurred in trade
or commerce and affected the public interest, we conclude
that the difference between the elements of the claims is
insufficient to show that GEICO would not be prepared to meet
the new issue at trial.
argues that the trial court manifestly abused its discretion
because the University filed its motion to amend after the
discovery cutoff, the trial court refused to reopen
discovery, the amended complaint expanded the damages
available to the University, and the amendment was contrary
to existing law. GEICO analogizes to In re Estate of
Lowe, 191 Wn.App. 216, 361 P.3d 789 (2015), review
denied, 185 Wn.2d 1019 (2016). In Lowe, a party
filed a motion seeking court permission to file a second
amended and supplemental petition less than a month before
the start of trial. 191 Wn.App. at 223. The Court of Appeals
noted that the party's motion was actually a motion to
amend, as it did not seek to include claims arising from
transactions arising after the latest pleading.
Lowe, 191 Wn.App. at 227. The Court of Appeals held
that the trial court did not abuse its discretion in denying
the party's motion, as the parties engaged in prolonged
discovery and the motion was filed less than one month before
trial. Lowe, 191 Wn.App. at 227-28.
argument is not persuasive. Although both here and in
Lowe a party moved to file an amended complaint
close to the trial date after prolonged discovery, the
present case is distinguishable. For example, Lowe
did not involve an added claim that relied on
nearly-identical evidence and was delayed due to the
nonmoving party's own actions. Thus, we reject this
argues that it was prejudiced by the addition of the CPA
claim because it allowed the University to recover attorney
fees and treble damages that would not have been available
under its breach of contract claim. It does not offer legal
authority in support of this argument. The fact that the
University could recover attorney fees and damages if it
prevailed on its new claim does not show that GEICO suffered
from undue delay or unfair surprise, or that it would be
unprepared to address the new claim at trial. Rather, these
arguments pertain to the damages that would be available to
the University if it prevailed on the merits of the claim.
GEICO's unsupported arguments are insufficient to show
that it was prejudiced by the new claims making treble
damages and attorney fees available to the University.
also argues that it was prejudiced by the trial court's
refusal to continue discovery on the newly-added claim or
allow GEICO to bring motions addressing the claim. GEICO does
not cite ...