Opinion
No. 60451-1-I.
December 15, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-11182-8, Glenna Hall, J., entered August 2, 2007.
Affirmed in part and reversed in part by unpublished opinion per Cox, J., concurred in by Grosse and Leach, JJ.
An insurer may be estopped from asserting a one year bar to suits against it by its insured due to the insurer's actions or omissions. But where the insured can show no prejudice, summary judgment in favor of the insurer may be proper. Here, Merrianne MacDONald, the insured, can show no prejudice from the actions and omissions of Mutual of Enumclaw, the insurer, on her breach of insurance contract claims. Accordingly, we decline to reverse the summary dismissal of those claims.
Dickson v. U.S. Fidelity Guaranty Co., 77 Wn.2d 785, 788, 466 P.2d 515 (1970) (concluding that equitable estoppel may apply to an insurer who seeks to assert a one year limitation in its policy as a defense to a claim under the policy).
The trial court properly exercised its discretion in refusing to admit hearsay evidence on the actual cash value of the damaged property. Thus, dismissal of the actual cash value claim was proper. But the court erroneously failed to apply the 15 percent earthquake deductible to all claims, including the additional living expenses claim. And the addition of this deductible to the judgment was improper. No prejudgment interest on any of the amounts recovered was awardable because none of the amounts was liquidated and all required the exercise of discretion by the jury. The court's attorney fees award is properly supported in the record before us. We affirm in part and reverse in part.
On February 28, 2001, the Nisqually earthquake struck Northwest Washington and caused considerable damage to MacDONald's home. Her homeowner's insurance policy, underwritten by Mutual of Enumclaw (MOE), covered earthquake damage under a special endorsement. Shortly after the damage occurred, MacDONald made a claim under her policy for losses caused by the earthquake. MOE inspected the damage to her home on March 13, 2001 and, by letter the same day, confirmed coverage. The letter recommended that MacDONald hire an engineer to inspect the damage and prepare a written report, including recommendations for repair. The letter also asked MacDONald to obtain "two itemized bids for the repair of this damage." By September 17, 2001, MacDONald had provided a report from an engineer and two estimates from contractors to MOE.
By letter dated August 7, 2001, MOE advised MacDONald that "We also want to remind you that you have one year from the date of the loss to finalize your claim." Over a year later, by letter dated September 17, 2002, MOE advised MacDONald that the one year bar to suit against it that is contained in her policy had passed. During the intervening time between the August 2001 and the September 2002 letters, MOE was in negotiations with MacDONald. At no time did MOE comply with its statutory duty under the Washington Administrative Code to give "[MacDONald] written notice that the time limit [for bringing an action] may be expiring and may affect the claimant's rights."
See WAC 284-30-380(5).
The parties dispute the reasons for the delay, but MOE did not settle MacDONald's claim until August 15, 2003. Generally, MOE attributes the "unfortunate delays" to MacDONald and her contractor, whose bids did not meet MOE's requirements. MacDONald contends she relied on MOE's instructions and complied with everything it asked of her. Because MacDONald lost her home to foreclosure before MOE settled the claim, MOE paid the settlement amount of her claim, $63,584.10 directly to her mortgagee.
MacDONald brought this action against MOE in April 2005. She alleged breach of her insurance contract, violations of the Consumer Protection Act (CPA), and bad faith. She sought damages, including her policy limit of $281,700 for losses to her home, lost equity in her home, additional living expense (ALE) payments, and mortgage payment benefits, which she claimed she was entitled to under her policy. She also sought treble damages under the CPA.
MOE moved for partial summary judgment on MacDONald's breach of contract claims, arguing they were barred by an insurance contract provision limiting actions against MOE to those initiated within one year of the date of loss. The trial court granted MOE's motion in part, dismissing MacDONald's contract claims. The court denied MacDONald's motion for reconsideration.
MOE also moved for partial summary judgment, arguing that the earthquake deductible applied to "actual cash value" (ACV) benefits under MacDONald's policy and that MacDONald could claim pre-judgment interest only for liquidated damages. The court granted MOE's motion on these issues.
MacDONald tried her CPA and bad faith claims to a jury. At the close of MacDONald's case, MOE moved for judgment as a matter of law on the issue of cost of repair damages. The insurer argued that MacDONald had put forth no admissible evidence of her damages for losses to her home. The court granted MOE's motion.
The jury returned a special verdict and found that MOE had acted in bad faith and violated the CPA. The jury awarded MacDONald $29,000 for additional living expenses and $31,596 for mortgage payments. It made no award for lost equity in the home.
The trial court entered judgment on the verdict, adding to the jury verdict the $10,000 maximum for treble damages under the CPA. The court also added $12,676.50 as an additional living expense deductible, presumably on the basis that MacDONald was entitled to this sum. The court awarded $46,268.75 for reasonable attorney fees and costs based on the CPA violation. The trial court denied MacDONald's post trial motions.
MacDONald appeals. MOE cross-appeals.
DISMISSAL OF CONTRACT CLAIMS
MacDONald argues that the trial court erred by granting MOE's motion for summary judgment and dismissing her contract claims. Because, on this record, MacDONald fails to show prejudice, we decline to reverse the summary judgment order.
A motion for summary judgment may be granted when there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. We review a summary judgment order de novo, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party.
CR 56(c).
Atherton Condo Apartment Owners Ass'n Bd. of Dir. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
"The doctrine of equitable estoppel rests on the principle that where a person, by his acts or representations, causes another to change his position or to refrain from performing a necessary act to such person's detriment or prejudice, the person who performs such acts or makes such representations is precluded from asserting the conduct or forbearance of the other party to his own advantage." Because equitable estoppel is not a favored doctrine, the party asserting estoppel must prove its elements by clear, cogent, and convincing evidence. No estoppel arises if the injured party had equal opportunity to determine the facts. Furthermore, an insured in possession of his or her policy is presumed to know its terms.
Dickson, 77 Wn.2d at 788 (citing Kessinger v. Anderson, 31 Wn.2d 157, 196 P.2d 289 (1948)).
Dombrosky v. Farmers Ins. Co. of Wash., 84 Wn. App. 245, 256, 928 P.2d 117 (1996).
Id.
Id. at 257.
Here, MacDONald contends that MOE is equitably estopped from relying on the one year action limitation based on its actions or omissions. The homeowner's policy in this case contains the following provision:
Suit Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.
Exhibit 135 at 12, #7.
The date of MacDONald's loss was February 28, 2001. Thus, any suit on the policy should have been commenced by February 28, 2002. MacDONald sued over three years after this date.
Nevertheless, MacDONald argues that MOE should be estopped from raising the one-year limitation provision as a defense for two reasons. First, MOE misrepresented the time by which she must have completed her claim. It is undisputed that MOE wrote her in August 2001 and stated that that "We also want to remind you that you have one year from the date of the loss to finalize your claim. " This misrepresents what was required under the policy. No reasonable person would understand "finalizing a claim" to be the same as suing on the policy.
Exhibit 35 (emphasis added).
Second, this misrepresentation is compounded by MOE's undisputed failure to comply with the express provisions of Washington law governing unfair or deceptive practices. RCW 48.30.010 requires insurance companies to refrain from unfair or deceptive acts or practices. A related provision of the Washington Administrative Code, WAC 284-30-380, sets forth standards for prompt, fair, and equitable settlements. It requires insurers to give unrepresented claimants 30 days notice that their rights to sue will expire:
Insurers shall not continue negotiations for settlement of a claim directly with a claimant who is neither an attorney nor represented by an attorney until the claimant's rights may be affected by a statute of limitations or a policy or contract time limit, without giving the claimant written notice that the time limit may be expiring and may affect the claimant's rights. Such notice shall be given to first party claimants thirty days and to third party claimants sixty days before the date on which such time limit may expire.
WAC 284-30-380(5) (emphasis added).
Here, it is undisputed that MOE was in negotiations with MacDONald to settle her claim during the period specified in WAC 284-30-380, that she was not represented by counsel at that time, and that MOE failed to give the required notice before the expiration of the one year period stated in its policy. In fact, MOE never gave the required written notice at anytime.
These facts establish that there were genuine issues of material fact regarding whether MOE was estopped from enforcing the one year bar in its policy. Specifically, there are material questions whether MOE, by its representation and omissions, caused MacDONald to refrain from timely suing. To this extent, summary judgment was improper.
Nevertheless, we note that MacDONald tried her case on the bad faith and CPA claims that remained after dismissal of the contract claim. In doing so, she relied on evidence that was the same as that she would submit in a breach of insurance contract claim. At oral argument of this case, MacDONald conceded that the same evidence that she already presented at trial would be submitted if we reversed this portion of the trial court's rulings. We agree with that assessment. We also note that it is difficult to envision that claims, if any, that were not already tried could result in any additional damages to MacDONald in addition to those she has already recovered. Having reviewed this record and the arguments of counsel, we conclude that reversal of the summary dismissal of the contract claims is not warranted, on this record.
The parties also argue whether MacDONald failed to sue MOE within a reasonable period of time after final rejection of her claims. Both sides rely on the same case, Dickson v. United States Fidelity and Guaranty Co., but reach different conclusions. Because of our disposition of the case on the basis discussed above, it is not necessary for us to reach that question.
77 Wn.2d 785, 466 P.2d 515 (1970).
DAMAGES
MacDONald next argues that the trial court erred in granting judgment as a matter of law on the issue of damages under her actual cash value (ACV) claim after it excluded her only proof of damages as hearsay. We disagree.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. A bid for the cost of repairs is offered to prove the truth of the matter asserted where it is offered to show that the amount of the bid is the same as the cost of necessary repairs. Hearsay evidence is inadmissible unless an exception applies. A trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion.
ER 801(c).
In re Estate of Jones, 152 Wn.2d 1, 13 n. 6, 93 P.3d 147 (2004).
ER 802.
State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002).
Here, MacDONald sought to admit copies of repair bids that she obtained from Elite Construction as evidence of the cost to repair her home. Because MacDONald offered the content of the bids to support her claim for damages, they were offered for the truth of the matter asserted. She did not establish that any hearsay exception applies. Accordingly, the trial court properly excluded the amounts on her bids offered for this purpose. The trial record also contained testimony from MOE's agent that Elite had submitted two bids, one for a total of $292,700 and a revised bid for $250,950. But this, alone, is insufficient evidence to prove that Elite's bids covered only earthquake damage repairs or that the bid amounts were reasonable. MacDONald did not present deposition testimony or live testimony from Mr. Barnett of Elite Construction to establish that the bids represented the reasonable and necessary cost of repair. Accordingly, MacDONald failed to present prima facie evidence of her damages.
See W.L. Reid Co. v. M-B Contracting Co., 46 Wn.2d 784, 792-93, 285 P.2d 121 (1955) ("An unaccepted offer to sell material and services does not prove the reasonable value of the material and services offered to be furnished.").
The only evidence of reasonable and necessary damages in the record came from MOE. Thomas Gibbons, of McBride Construction, testified that his bid was a reasonable and necessary bid to repair the earthquake damage. The record also contained the McBride Construction bid for $105,839.10, on which MOE based its settlement payment.
MacDONald offered no admissible evidence showing that the cost of repair or actual cash value of her loss was higher than what MOE paid. And she failed to establish that the bid totals in evidence included only necessary repairs caused by the earthquake and that the amounts were reasonable. Accordingly, the trial court properly entered judgment as a matter of law on the issue of damages in favor of MOE at the close of plaintiff's case.
Mason v. Mortgage America does not require a different result. Unlike in Mason, MacDONald failed to produce any admissible evidence of the amount of her loss. Thus, the jury had no basis on which to award her additional damages.
114 Wn.2d 842, 792 P.2d 142 (1990).
See Mason, 114 Wn.2d at 849-50 (fact of loss must be established with sufficient certainty to provide basis for estimating loss) (trier of fact has discretion to award damages within range of relevant evidence).
MacDONald argues that MOE's "wrongful acts" in violation of the CPA and acting in bad faith are the cause of her inability to establish the amount of her losses. She argues that MOE should not be allowed to benefit by its wrongful acts and should be required to pay her damages equal to the limit of her policy. This, she argues, would advance the purpose of the CPA and prevent CPA violations in the future. But MacDONald cites to no authority relieving her of the duty to prove her damages under a CPA claim. Moreover, estoppel is not an available remedy under the CPA.
Hayden v. Mut. of Enumclaw Ins. Co., 141 Wn.2d 55, 62-63, 1 P.3d 1167 (2000) (preclusion and estoppel are not remedies under the CPA).
MacDONald properly concedes in her reply brief that the third party cases she cites do not establish coverage by estoppel or a presumption of harm in first party cases. She argues, however, that the cases stand for the principle "that the insurer may not profit from its unfair deceptive or bad faith acts at the expense of the insured." Even so, these cases do not require a different result.
See Coventry Associates v. American States Ins. Co., 136 Wn.2d 269, 285, 961 P.2d 933 (1998) (the remedy for first party bad faith is not coverage by estoppel, but damages must be proved at trial).
Citing Buchanan v. Switzerland General Ins. Co., MacDONald next argues that MOE should be estopped from contesting her ACV claim and that MOE must bear the burden of her lack of proof of damages. But Buchanan does not address estoppel in the context of proving damages, and it does not support MacDONald's argument.
76 Wn.2d 100, 455 P.2d 344 (1969).
MacDONald appears to confuse the required "proof-of-loss statement" at issue in Buchanan with her failure to prove her own losses here.
She also argues that MOE's conduct was "the equivalent of spoliation." But MacDONald fails to explain, even if she was entitled to the burden shifting presumption of spoliation, how it would have changed the outcome here. The inference to be drawn from the presumption is not, by itself, substantive evidence. Without other evidence in the record to support her claim of damages, MacDONald could not have defeated the motion for judgment as a matter of law.
See Walker v. Herke, 20 Wn.2d 239, 251-52, 147 P.2d 255 (1944) ("[T]he presumption arising from the fact of spoliation of evidence does not relieve the other party from introducing evidence tending affirmatively to prove his case so far as he has the burden.") (quoting F.R. Patch Mfg. Co. v. Protection Lodge, 77 Vt. 294, 60 A. 74, 84 (1903)).
Finally, MacDONald argues that she is entitled to "benefit of the bargain" damages. She argues that she is entitled to her policy limit because she satisfied "necessary pre-conditions" of her policy and that MOE materially breached the contract by not paying and by failing to invoke the appraisal process to dispute her claim amount. But these arguments cannot serve as a basis for damages here because they are arguments for contract damages. We have declined to reverse the trial court's summary dismissal of her claims based on breach of contract.
ACV DEDUCTIBLE
MacDONald argues that the trial court erred in granting MOE's partial summary judgment on its claim that a 15 percent deductible applies to the actual cash value (ACV) settlement provision. The trial court correctly resolved this issue.
Interpretation of insurance policy language is a question of law. A policy should be given a "fair, reasonable, and sensible construction, as would be given to the contract by the average person purchasing insurance."
Allstate Ins. Co. v. Bowen, 121 Wn. App. 879, 884, 91 P.3d 897 (2004) (citing State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 480, 687 P.2d 1139 (1984)).
Allstate, 121 Wn. App. at 884 (citing E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 907, 726 P.2d 439 (1986)).
Here, MacDONald's base policy insurance coverage excludes coverage for earthquake damage. Thus, MacDONald's earthquake coverage is derived exclusively from the earthquake endorsement she purchased for an additional premium. The earthquake endorsement states that the endorsement's deductible "replaces any other deductible provision in this policy with respect to loss covered under this endorsement." The endorsement goes on to state:
Id. Exhibit 135 at earthquake endorsement.
We will pay only that part of the loss which exceeds %* of the amount of insurance that applies to the destroyed or damaged property. This deductible(s) will apply separately to loss under the various Section I Property Coverages.
. . . .
*Entries may be left blank if shown elsewhere in this policy for this coverage.
. . . .
All other provisions of this policy apply.
Id.
The declaration page for MacDONald's policy states that the earthquake deductible is 15 percent.
This policy makes clear that a 15 percent deductible applies to all losses covered under the earthquake endorsement. MacDONald's losses to her home due to damage caused by the earthquake are a "loss covered under this [earthquake] endorsement." Thus, regardless of how that property loss is calculated, whether as "replacement cost" or "actual cash value," the 15 percent deductible applies. Accordingly, the trial court properly granted MOE's motion for partial summary judgment.
MacDONald argues that the 15 percent earthquake deductible applies only if she elects to settle her losses under the "replacement cost" provision. She contends that the "replacement cost" settlement provision is the only provision that refers to an applicable deductible. She argues that this establishes that no deductible applies to "actual cash value" settlements. MacDONald's argument is unpersuasive.
Her argument would require this court to ignore the express language of the earthquake endorsement, which is the source of MacDONald's coverage.
Moreover, her strained interpretation also creates unnecessary conflict between the two settlement provisions and would lead to an absurd result.
Cf. Morgan v. Prudential Ins. Co. of America, 86 Wn.2d 432, 434-35, 545 P.2d 1193 (1976) ("The contract should be given a practical and reasonable rather than a literal interpretation; it should not be given a strained or forced construction which would lead to an extension or restriction of the policy beyond what is fairly within its terms, or which would lead to an absurd conclusion, or render the policy nonsensical or ineffective.").
PREJUDGMENT INTEREST ON LIQUIDATED DAMAGES
MacDONald argues that the trial court erred and/or abused its discretion in not awarding prejudgment interest on certain damage awards. We disagree.
Prejudgment interest is allowed in Washington when an amount claimed is "liquidated" or when the amount is due upon a contract and is determinable by computation with reference to a fixed standard contained in the contract. A liquidated claim is one "where the evidence furnishes data which, if believed, makes it possible to compute the amount with exactness, without reliance on opinion or discretion." If the factfinder must exercise discretion as to the measure of damages, the claim is unliquidated.
Prier v. Refrigeration Eng'g Co., 74 Wn.2d 25, 32, 442 P.2d 621 (1968).
King County v. Puget Sound Power Light Co., 70 Wn. App. 58, 61, 852 P.2d 313 (1993) (citing Prier, 74 Wn.2d at 32).
Car Wash Enter., Inc. v. Kampanos, 74 Wn. App. 537, 549, 874 P.2d 868 (1994).
We review summary judgment de novo. We review a trial court's award of prejudgment interest for an abuse of discretion.
Wilson, 98 Wn.2d at 437.
Scoccolo Constr., Inc. v. City of Renton, 158 Wn.2d 506, 519, 145 P.3d 371 (2006).
Here, the trial court granted MOE's motion for partial summary judgment, ordering that MacDONald could not claim interest for unliquidated damages. MacDONald assigns error to this order. The trial court did not err and correctly stated the law.
After trial, in its judgment, the court did not award pre-judgment interest on any of the jury's awards to MacDONald. The trial court did not abuse its discretion. MacDONald was not entitled to pre-judgment interest on any of the awards because the jury was required to exercise its discretion in determining the amounts.
Regarding the $29,000 additional living expense (ALE) award, MacDONald's insurance policy does not contain a fixed allowance for ALE, nor does it contain a formula by which such damages can be computed. MOE's obligation under the policy was to pay ALE only for "the shortest time required to repair or replace the damage or, if you permanently relocate, the shortest time required for your household to settle elsewhere." The record contains evidence that MOE had already paid some ALE expenses to MacDONald, including payments toward mobile home rental expenses associated with a lease, less a 15 percent deductible. Thus, the jury had discretion to determine the monthly amount of ALE to award as well as the start and stop date for the damages. The fact that the award appears to reflect 10 months of mobile home rent under a 12-month lease does not make this award liquidated.
In awarding $31,596 for mortgage benefits, the jury exercised discretion in determining the period of time the benefit was owed. MacDONald's policy provided mortgage benefit coverage beginning 60 days after "covered loss renders the residence premises uninhabitable" for a maximum of 12 months. The record contained conflicting evidence as to when MacDONald's home became uninhabitable. Furthermore, nothing in the policy required that the jury award the mortgage benefit for the full 12 months permitted by the policy. MacDONald's contention that the jury based the award on paying her monthly mortgage payment of $2,644 for 10 months does not prove that the jury did not use discretion in making the award.
ALE DEDUCTIBLE
MOE cross-appeals, arguing that the trial court erred by concluding that no deductible applied to the additional living expense (ALE) benefit. MOE also claims the court erred by awarding an additional $12,676.50, the amount of the applicable deductible, to MacDONald in the judgment. We agree.
Interpretation of insurance policy language is a question of law.
Allstate, 121 Wn. App. at 884 (citing State Farm, 102 Wn.2d at 480).
The earthquake endorsement in MacDONald's policy states:
The following deductible provision replaces any other deductible provision in this policy with respect to loss covered under this endorsement.
Exhibit 135 at earthquake endorsement (emphasis added).
By its plain terms, when the earthquake endorsement is the source of coverage, the language of the endorsement replaces the deductible provision in the underlying policy, entitled "SECTION I — DEDUCTIBLE."
ALE is subject to the Section I deductible. Thus, the 15 percent earthquake deductible applies to the ALE benefit. That percentage is applied to the $84,510 loss of use maximum, yielding a deductible of $12,676.50.
Here, the trial court expressly instructed the jury that no deductible applied to the ALE award. The jury is presumed to follow the court's instructions. The jury awarded MacDONald $29,000 as her ALE benefit, presumably without considering any deductible. Yet, the court added a deductible of $12,676.50 to the judgment. This additional $12,676.50 award cannot be sustained.
Jury Instruction 26 states: The Court has determined that the following deductibles apply . . . Loss of use/additional Living expense[:] none." Clerk's Papers at 1467.
State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).
See Clerk's Papers at 1468. (Jury Instruction 27 stated: "If your verdict is for the plaintiff . . . do not . . . include the insurance policy deductibles. . . ."); Johnson, 124 Wn.2d at 77 (noting that the jury is presumed to follow the court's instructions).
MacDONald argues that MOE failed to preserve this issue for appeal. We disagree. MOE preserved this issue by arguing its position during the motions in limine prior to trial. That was sufficient. In any event, MOE is not attacking the erroneous instruction. Rather, it argues the court improperly added the deductible amount into the judgment after the jury, on the basis of an erroneous instruction, did not consider it in its $29,000 award.
See, e.g., Butler v. Lamont School Dist. No. 246, 49 Wn. App. 709, 713, 745 P.2d 1308 (1987) (noting that the appellant's timely motion in limine preserved the issues on appeal) (citing Fenimore v. DONald M. Drake Constr. Co., 87 Wn.2d 85, 92, 549 P.2d 483 (1976); State v. Smith, 189 Wash. 422, 65 P.2d 1075 (1937)).
MacDONald next argues that MOE's agents testified that the deductible did not apply to ALE and that MOE cannot now claim otherwise. But this testimony and the related argument over whether the agents were "speaking agents" for MOE is not relevant here. Whether the deductible applies is a question of law for the court to determine.
Although MacDONald assigns error to the trial court's August 1, 2007 order denying her motion for JNOV, New Trial, Judgment as a Matter of Law, and for Attorney Fees, she does not make arguments or cite authority regarding the relief denied in that motion. Accordingly, we do not reach issues raised by that order.
See RAP 10.3(6); McKee v. American Home Products, Corp., 113 Wn.2d 701, 705, 782 P.2d 1045 (1989) (refusing to consider issues on appeal that are not supported by argument and citation to authority).
ATTORNEY FEES
MacDONald argues that the trial court failed to enter findings and conclusions sufficient to support its award of attorney fees, requiring remand. Because this record is sufficient for this court to determine the basis of the fee award, we decline to reverse.
Findings Conclusions
The determination that fees are reasonable and an award of those fees is reviewed for abuse of discretion. The trial court is required to establish a record supporting its attorney fee award that is adequate to allow a reviewing court to determine whether the award was reasonable. We will reverse an award of attorney fees only if we can determine that the trial court's exercise of its discretion was "manifestly unreasonable or based upon untenable grounds or reasons."
Mahler v. Szucs, 135 Wn.2d 398, 434, 957 P.2d 632 (1998).
Id. at 435.
Progressive Animal Welfare Soc'y v. Univ. of Wash., 114 Wn.2d 677, 689, 790 P.2d 604 (1990).
Here, the trial court did not enter findings and conclusions to support its attorney fee award of $46,268.75 to MacDONald. However, the record is adequate for this court to determine that the trial court did not abuse its discretion in calculating the award.
Based on the briefing in the trial record, it is clear that the court considered the reasonableness of the number of hours billed and the hourly rate of counsel. The court's award reflects, to the dollar, the computation of total attorney fees put forth by MOE. However, the trial court did not fully adopt the reasoning put forth by MOE and apparently rejected MOE's proposal to decrease the award further. The court adjusted the award using a multiplier of 1.25, as indicated in its order. This multiplier was presumably a compromise between MacDONald's suggested multiplier of 1.5 and MOE's suggestion of 1.0. On this record, remanding for findings and conclusions is unnecessary.
Attorney Fees on Appeal
MacDONald also requests an award of reasonable attorney fees on appeal. We decline to award fees.
MacDONald seeks attorney fees on appeal under RCW 19.86.090 and Olympic Steamship Co. v Centennial Insurance Co. RCW 19.86.090 does not support an award here. Moreover, because we decline to reverse the dismissal of the insurance contract claims, no fees under Olympic Steamship are awardable.
117 Wn.2d 37, 811 P.2d 673 (1991).
Cf. Lenzi v. Redland Ins. Co., 140 Wn.2d 267, 281-82, 996 P.2d 603 (2000) (awarding fees on appeal in coverage dispute); Olympic Steamship, 117 Wn.2d at 39, 53 (awarding fees on appeal on equitable grounds where insurer contested coverage).
We affirm the orders on review except the judgment, which we reverse to the extent it includes the additional sum of $12,676.50.
WE CONCUR: