CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN T-MOBILE USA INC, a Washington corporation, Plaintiff-Appellant,
SELECTIVE INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
Ninth Circuit has asked this court whether an insurance
company is bound by its agent's written
representation-made in a certificate of insurance-that a
particular corporation is an additional insured under a given
policy. The question arises in a case where: (1) the Ninth
Circuit has already ruled that the agent acted with apparent
authority, but (2) that agent's representation turned out
to be inconsistent with the policy and (3) the certificate
included additional text broadly disclaiming the
certificate's ability to "amend, extend or alter the
coverage afforded by" the policy.
this state's law, the answer is yes: an insurance company
is bound by the representation of its agent in those
circumstances. Otherwise, an insurance company's
representations would be meaningless and it could mislead
and Procedural History
heart of this case are two T-Mobiles: T-Mobile USA
and T-Mobile Northeast (T-Mobile NE). They are
distinct legal entities. T-Mobile USA, Inc. v. Selective
Ins. Co. of Am., 908 F.3d 581, 583 n.1 (9th Cir. 2018).
NE wanted to construct a cell phone tower on a rooftop in New
York City. Id. at 583-84. It engaged the services of
a contractor to help it do so. Id.; see
also 3 Excerpts of Record (ER) at 499-516 (agreement).
The contract between T-Mobile NE and the contractor required
the contractor to obtain a general liability insurance
policy, to annually provide T-Mobile NE "with
certificates of insurance evidencing [that policy's]
coverage," and to name T-Mobile NE as an additional
insured under the policy. 3 ER at 504-05. T-Mobile USA was
not a party to the contract, id. at 503, but was
nonetheless aware of it and approved the contract as to form,
id. at 516.
contractor obtained the required insurance policy from
Selective Insurance Company of America. T-Mobile
USA, 908 F.3d at 583; see also 3 ER at 518-639
(policy). The policy was-and remains-a claims-made policy. 3
ER at 532. It provided that a third party would automatically
become an additional insured under the policy if the
contractor and the third party entered into their own
contract and that contract required the contractor to add the
third party to its insurance policy as an additional insured.
T-Mobile USA, 908 F.3d at 583. T-Mobile NE therefore
became an additional insured under the policy by virtue of
its contract with the contractor. T-Mobile NE and the
contractor worked together to build the cell phone tower on
the New York City rooftop. Id. at 584.
T-Mobile USA did not have a contract with the contractor, it
did not automatically become an additional insured under the
policy. Nonetheless, over the course of approximately seven
years, Selective's agent issued a series of certificates
of insurance, including the one underlying this dispute, to
"T-Mobile USA Inc., its Subsidiaries and
Affiliates" that stated that those entities were
"included as an additional insured [under the policy]
with respect to" certain areas of coverage. 2 ER at 132
(certificate at issue); see also 3 ER at 642-52; 4
ER at 833 (other certificates). The agent signed those
certificates as Selective's '"Authorized
Representative."' 4 ER at 827.
agent explained that it "began issuing the T-Mobile
Additional Insured [certificates of insurance] because [the
contractor] informed us that its agreements with T-Mobile
required that T-Mobile be named as an additional insured
under [the contractor's] insurance policies and that
T-Mobile qualified as an additional insured per the standard
terms of Selective's policies for that reason."
Id. Selective never objected to the agent's
issuance of the certificates. Id. at 826
(declaration of agent's principal).
those facts, the Ninth Circuit held that the agent acted with
apparent authority in issuing the certificate at issue, which
"clearly lists T-Mobile USA as an additional insured
under the policy." T-Mobile USA, 908 F.3d at 586
certificate was issued on an industry-standard form and
included preprinted industry-standard disclaimers. 2 ER at
132; Br. of Amicus Curiae Am. Prop. & [Cas.] Ins.
Ass'n at 4 (explaining this). It stated in bold capital
letters that the certificate "is issued as a matter of
information only and confers no rights upon the certificate
holder," "does not affirmatively or negatively
amend, extend or alter the coverage afforded by the"
insurance policy, and "does not constitute a contract
between the issuing insurer(s), authorized representative or
producer, and the certificate holder." 2 ER at 132
(formatting omitted). It also stated in bold, "If the
certificate holder is an ADDITIONAL INSURED, the policy(ies)
must be endorsed. ... A statement on this certificate does
not confer rights to the certificate holder in lieu of such
endorsements)." Id. (boldface omitted).
the owner of the New York City rooftop on which T-Mobile NE
and the contractor had constructed the cell phone tower sued
the contractor and T-Mobile in federal district court in New
York for damages associated with the construction.
T-Mobile USA, 908 F.3d at 584 & n.4. But the
owner sued T-Mobile USA, not T-Mobile NE.
USA and the contractor each tendered the building owner's
claim to Selective. Id. at 584. Selective accepted
the contractor's tender but rejected T-Mobile USA's
tender. Id. at 584-85.
T-Mobile USA's motion for summary judgment in the New
York litigation, the building owner amended its complaint,
naming T-Mobile NE (and dropping T-Mobile USA) as the
defendant. 4 ER at 678. Because Selective had not accepted
T-Mobile USA's tender, though, T-Mobile USA incurred
expenses defending itself up to that point of the New York
USA, which is headquartered in Washington, sued Selective in
King County Superior Court. T-Mobile USA, 908 F.3d
at 585. It "assert[ed] claims for breach of contract,
declaratory judgment, common law insurance bad faith, common
law attorney's fees, and violation of consumer fraud
statutes." Id. All of those claims were based
on the fact that Selective failed to recognize T-Mobile USA
as an additional insured. Id.
which is headquartered in New Jersey, removed the case to
federal district court. Id.
discovery, Selective moved for summary judgment,
"requesting that T-Mobile USA's claims be dismissed
in their entirety because ... the 2012 [certificate of
insurance] could not confer coverage on T-Mobile USA."
Id. The district court granted the motion and
dismissed all of T-Mobile USA's claims. Id.
USA appealed on several grounds. The Ninth Circuit certified
only the following question to this court:
"Under Washington law, is an insurer bound by
representations made by its authorized agent in a
certificate of insurance with respect to a party's
status as an additional insured under a policy issued by
the insurer, when the certificate includes language
disclaiming its authority and ability to expand
Id. at 588. The Ninth Circuit noted that
"T-Mobile USA does not contend that the
[certificate of insurance] is relevant to
interpreting the Policy. Rather, T-Mobile USA
contends that Selective is bound by [the agent's]
representation in the [certificate of insurance] that
T-Mobile USA is an additional insured." Id. at
certified question presents a question of law. RCW 2.60.020;
RAP 16.16. This court "consider[s] the legal issues
presented based on the certified record provided by the
federal court." Wright v. Lyft, Inc., 189 Wn.2d
718, 722, 406 P.3d 1149 (2017) (citing Bradburn v. N.