On May 16, 2014, Judge Marsha Pechman of the U.S. District Court for the Western District of Washington dismissed an insured’s cause of action against his liability insurer under Washington State’s Insurance Fair Conduct Act (“IFCA”), declaring that an insured under a liability insurance policy does not have a right of action under IFCA. Cox v. Continental Cas. Co., 2014 WL 2011238 *5 (W.D. Wash. May 16, 2014). The Court reasoned that only a “first party claimant” has a right of action against IFCA, and observed that a liability insurance policy is a “third-party” insurance policy, and the Washington Supreme Court consistently has recognized that there are material differences between first-party insurance and third-party insurance. It thus declared that an insured under a third-party liability policy does not have a right of action under IFCA.
This decision is notable, as it is the first decision in which a Washington judge has dismissed a cause of action against a liability insurer under IFCA on that basis. In certain cases involving first-party insurance, Washington judges have opined that IFCA applies only to cases involving first-party insurance. However, in other cases involving third-party liability insurance, certain judges have summarily applied IFCA to those cases, without analysis and presumably without any briefing on the issue.
Although the decision is not binding precedent, it is well reasoned and should serve as highly persuasive precedent in future Washington suits. In turn, the decision should help to mitigate liability insurers’ exposure to an award of uncapped treble damages and reasonable attorneys’ fees under IFCA.
The decision also may noteworthy consequences in insurance-related discovery disputes. In 2013, the Washington Supreme Court declared that it will presume that an insurer “in [a] first party insurance claim” may not assert the attorney-client privilege or work product protection in a bad faith lawsuit. Cedell v. Farmers Ins. Co. of Washington, 176 Wn.2d 686, 700, 295 P.3d 239 (2013). Without analysis, and presumably without briefing on the issue, certain federal judges have applied the presumption in Cedell to bad-faith suits relating to third-party liability insurance. That said, the distinction between first-party insurance and third-party insurance which Judge Pechman recognized in Cox for purposes of IFCA would seem to apply equally to a discovery dispute under Cedell. Therefore, as a result of Judge Pechman’s decision, it is possible that Washington judges will be disinclined to apply Cedell in discovery disputes in bad-faith suits relating to third-party liability insurance.