        Fl LE
        IN CLERKS OFFICE


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 11J11aE COURT, STATE OF WAsHINGtON

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                                                         =Carp nter - -
                                                         ~upreme Court Clerk



   IN THE SUPREME COURT OF THE STATE OF WASHINGTON



STEWART TITLE GUARANTY
COMPANY, a Texas corporation,

                          Appellant,

                 v.
                                                  NO. 87087-0
STERLING SAVINGS BANK, a
Washington corporation; STERLING
FINANCIAL CORPORATION, a
Washington corporation,
                                                  ENBANC
                          Defendants,

WITHERSPOON, KELLEY, DAVENPORT
& TOOLE, PS, a Washington corporation;
DUANE M. SWINTON and JANE DOE                     Filed - -OCT -3 2013 -
                                                            -
                                                               0
                                                                 --
SWINTON, and the marital community
composed thereof,

                          Respondents.



        GORDON McCLOUD, J.-A title insurer,           Stewart Title Guaranty

Company, hired the law firm Witherspoon, Kelley, Davenport & Toole PS

(collectively Witherspoon) to defend its insured, Sterling Savings Bank, from a
Stewart Title Guar. Co. v. Sterling Savings Bank, et al., No. 87087-0



claim of lien priority on real property by a construction company (Mountain West).

The claim was resolved in favor of Mountain West, and Stewart Title then sued

Witherspoon for malpractice. Stewart Title claimed the law firm had improperly

failed to raise the viable defense of equitable subrogation. Witherspoon defended

by arguing that there was no duty and no breach, specifically, (1) that

Witherspoon's client was Sterling, not Stewart Title, and hence Witherspoon owed

no duty to Stewart Title that would support that non client third party payor's claim

of malpractice; and (2) that equitable subrogation would not have been a viable

argument anyway.

       Witherspoon moved for summary judgment on both grounds: (1) that it

owed a duty only to the client, Sterling, rather than to the payor, Stewart Title; and

(2) that an equitable subrogation argument would have failed. The trial court ruled

against Witherspoon on the first, no-duty, ground but agreed with it on the second,

no-breach, ground. The court therefore granted summary judgment in favor of

Witherspoon.      We accepted review of both the duty issue and the equitable

subrogation issue.      We affirm the trial court's grant of summary judgment

dismissing Stewart Title's malpractice case against Witherspoon on the basis that

Witherspoon owed no duty to Stewart Title.             We do not reach the equitable

subrogation issue.



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Stewart Title Guar. Co. v. Sterling Savings Bank, et al., No. 87087-0



                                         FACTS

       Because we resolve this case on the basis that Witherspoon owed no duty to

Stewart Title. that would permit Stewart Title to maintain a malpractice action

against Witherspoon, we do not reach the parties' equitable subrogation arguments.

Consequently, we recite the facts relevant to the issue of Witherspoon's duty to

Stewart Title.

       A lender-Sterling-agreed to lend money to a borrower to purchase

property to develop. As a condition of the loan, Sterling required a first priority

security interest in the property. The lender's title insurance company-Stewart

Title-negligently failed to inspect the property before the loan went through; as a

result, Stewart Title failed to discover that the builder-Mountain West-had

already started construction on the property. By statute, Mountain West gained an

interest in the form of a mechanics' lien as of the date construction began.

       After a payment dispute arose, Mountain West discovered that its

mechanics' lien held first position. The lender, Sterling, asked its title insurance

company, Stewart Title, to defend it in the ensuing foreclosure action, because the

insurer's policy covered mechanics' liens.         Stewart Title admitted its duty to

defend Sterling and hired Sterling's long time law firm-Witherspoon-to do so.




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Stewart Title Guar. Co. v. Sterling Savings Bank, eta!., No. 87087-0



       In that underlying lawsuit, Witherspoon stipulated that Mountain West had

first priority and sought a swift settlement with the construction company. At

some point after the stipulation, Stewart Title fired Witherspoon over

disagreements related to whether equitable subrogation was a viable defense for

Sterling. Stewart Title hired new counsel, who tried to argue that Sterling was

equitably subrogated to the prior interests it paid off and therefore had priority after

all. The trial court held the parties were bound by the earlier stipulation and

disallowed the equitable subrogation defense.

       Stewart Title then sued the law firm, Witherspoon, for malpractice based on

Witherspoon's failure to raise the equitable subrogation defense for the lender,

Sterling, before stipulating the construction company had priority. As discussed

above, Witherspoon argued that (1) its client was the insured lender, not the title

insurer, and it therefore owed no duty to the title insurer that would permit the

insurer to sue the firm for malpractice; and, alternatively, that (2) an equitable

subrogation argument would have failed under the facts of the case.            As also

discussed above, the trial court rejected Witherspoon's argument that it had no

duty and denied Witherspoon's motion for summary judgment based on lack of a

duty to Stewart Title. But the trial court agreed with Witherspoon that equitable

subrogation would not have been a viable argument at the time of the underlying



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Stewart Title Guar. Co. v. Sterling Savings Bank, et al., No. 87087-0



trial and granted summary judgment to Witherspoon on that basis. We accepted

review and now affirm the grant of summary judgment in favor of Witherspoon,

albeit on a different basis than that adopted by the trial court.

                                      ANALYSIS

       I.     STANDARD OF REVIEW


       We review a trial court's order granting summary judgment de novo. Mohr

v. Grantham, 172 Wn.2d 844, 859, 262 P.3d 490 (2011) (citing Rivas v. Overtake

Hasp. Med. Ctr., 164 Wn.2d 261, 266, 189 P.3d 753 (2008)). We view all the

evidence in the light most favorable to the nonmoving party.            !d.   Summary

judgment is appropriate if "there is no genuine issue as to any material fact and ...

the moving party is entitled to a judgment as a matter oflaw." CR 56( c).

       II.    ATTORNEYS' DUTIES TO NONCLIENTS

       Witherspoon's only client was Sterling. Stewart Title was a nonclient third

party payor. In Trask v. Butler, 123 Wn.2d 835, 872 P.2d 1080 (1994), this court

expressly adopted a multifactor test to determine whether an attorney may be liable

for malpractice to such a nonclient third party. The relevant factors are:

              1.     The extent to which the transaction was intended to
                     benefit the plaintiff [that is, the third party suing the
                     attorney];

              2.     The foreseeability of harm to the plaintiff;



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Stewart Title Guar. Co. v. Sterling Savings Bank, et al., No. 87087-0



              3.     The degree of certainty that the plaintiff suffered injury;

              4.     The closeness of the connection between the defendant's
                     [that is, the attorney's] conduct and the injury;

              5.     The policy of preventing future harm; and

              6.     The extent to which the profession would be unduly
                     burdened by a finding of liability.

Trask, 123 Wn.2d at 843.         We explained that the first factor is the "primary

inquiry" in determining an attorney's liability to third parties. !d. at 842. We

further explained that "under the modified multi-factor balancing test, the threshold

question is whether the plaintiff is an intended beneficiary of the transaction to

which the advice pertained" and that "no further inquiry need be made unless such

an intent exists." !d. at 843.

       We have addressed the Trask factors only once, holding under very different

facts that an insurance claim adjuster had a duty to the unrepresented claimants she

had helped. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 307-08, 45 P.3d 1068

(2002). The issue presented here, in contrast, is whether an attorney hired by a title

insurer to represent its insured owed a duty to the nonclient insurer and, hence,

whether that insurer can sue the lawyer for negligently representing the insured

during the defense. This is an issue of first impression in Washington.

       Here, the trial court found that Witherspoon owed a duty to Stewart Title



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Stewart Title Guar. Co. v. Sterling Savings Bank, et al., No. 87087-0



under Trask.         It held that under the first Trask factor, 1 Stewart Title was an

intended beneficiary of Witherspoon's representation of Stewart Title's insured.

We disagree.

          The trial court based its determination that Stewart Title was an intended

beneficiary under Trask on two legal conclusions. First, it found that the interests

of Stewart Title and Witherspoon were aligned during the representation. Second,

it found a contractual basis for a duty running from Witherspoon to Stewart Title.

We disagree with both conclusions.

                z.      Alignment of Interests Is Insufficient To Establish that
                        Witherspoon Owed a Duty to Stewart Title

          The alignment of interests is insufficient to find a duty runnmg from

Witherspoon to Stewart Title for purposes of a malpractice claim. Stewart Title

argues, in support of the trial court's decision, that as long as there is no actual

conflict of interest between an insurer and its insured, a nonclient insurer is

presumed to be an intended beneficiary and "can bring a claim for malpractice"

against its insured's attorney. Suppl. Br. of Appellant at 3; see also id. at 20.

Under Stewart Title's analysis, unless there is an actual and demonstrable conflict




          1
      . The first and most important factor is "the extent to which the transaction was
intended to benefit [the nonclient suing the attorney]." Trask, 123 Wn.2d at 843.

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Stewart Title Guar. Co. v. Sterling Savings Bank, et al., No. 87087-0



of interest, an insurer may always sue its insured's attorney for malpractice under

Trask.

         We reject that analysis.   The Trask standard requires a showing that the

"transaction was intended to benefit" a third party to some extent before we will

permit that third party to sue for malpractice. Trask, 123 Wn.2d at 843 (emphasis

added). The fact that an insurer's and insured's interests happen to align in some

respects-though perhaps not in all respects,               as   shown by contrasting

Witherspoon's strategy of seeking a speedy, yet just, settlement with Stewart

Title's different strategy-does not by itself show that the attorney or client

intended the insurer to benefit from the attorney's representation of the insured. 2

         Indeed, a contrary conclusion would conflict with Trask. It could also make

any third party payor an intended beneficiary of a legal services contract to whom



         2
         We recognize that other jurisdictions have come to a different conclusion. See
Paradigm Ins. Co. v. Langerman Law Offices, P.A., 200 Ariz. 146, 155, 24 P.3d 593
(Ariz. 2001) (holding that a "lawyer's services are ordinarily intended to benefit both
insurer and insured when their interests coincide"); Atlanta Int'l Ins. Co. v. Bell, 438
Mich. 512, 523, 475 N.W.2d 294 (1991) (permitting insurer to bring malpractice action
where "the interests of the insurer and the insured generally merge"); Unigard Ins. Group
v. O'Flaherty & Belgum, 38 Cal. App. 4th 1229, 1236-37, 45 Cal. Rptr. 2d 565 (1995)
(permitting malpractice action "where there is otherwise no actual or apparent conflict of
interest between the insurer and the insured" (emphasis omitted)); see also
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS§ 51 cmt. g (2000) (stating,
regarding a test with an intended beneficiary factor similar to Washington's, that "a
lawyer designated by an insurer to defend an insured owes a duty of care to the insurer
with respect to matters as to which the interests of the insurer and insured are not in
conflict").

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Stewart Title Guar. Co. v. Sterling Savings Bank, eta!., No. 87087-0



a duty of care runs, in violation of RPC 5.4(c). 3 We cannot endorse an analysis

that would violate both of these settled rules of law.

              ii.   Witherspoon's Duty To Inform Stewart Title Is Insufficient To
                    Establish that Witherspoon Also Owes a Duty of Care to
                    Stewart Title that Supports a Malpractice Claim by Stewart
                    Title

       The trial court also held that Stewart Title was an intended beneficiary of

Witherspoon's representation of Sterling because of Stewart Title's retention letter.

It found that the retention letter created a contractual duty on the part of

Witherspoon to keep Stewart Title informed about the progress of the lien priority

litigation.   We conclude that Witherspoon's duty to inform Stewart Title is

insufficient to establish a further duty of care permitting Stewart Title to bring a

malpractice claim based on an alleged breach of a different duty to a different

entity-that is, Witherspoon's duty of care to its client, Sterling.

       Based on the agreement of the parties and the terms of the retention letter

sent to Witherspoon by Stewart Title, the trial court found a duty on the part of

Witherspoon to inform Stewart Title.         Moreover, it found that the "duty that

Witherspoon could have to Stewart Title, a nonclient, comes from the duty to

inform." Clerk's Papers (CP) at 523-24.


       3
         RPC 5 .4( c) states, "A lawyer shall not permit a person who recommends,
employs, or pays the lawyer to render legal services for another to direct or regulate the
lawyer's professional judgment in rendering such legal services."

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Stewart Title Guar. Co. v. Sterling Savings Bank, et al., No. 87087-0



       The trial court erred in finding in this case that a duty to inform could lead to

a duty of care to an entity other than the client for malpractice purposes. An

attorney hired to represent a client by a third party payor may generally, as part of

the terms of the retention, have a duty to keep the payor informed (within the

bounds of the attorney-client privilege and the duty of confidentiality). But such a

limited duty to inform the nonclient third party payor does not give rise to a broad

duty of care that would support a malpractice claim by the third party payor. It

does not create that separate duty of care for the same reasons that the client's and

nonclient payor's alignment of interests does not create such a separate duty: first,

because acceptance of a duty to inform a nonclient third party payor does not show

that the attorney's representation was intended to benefit the third party payor, as

Trask requires; and second, because an attorney cannot contract away his or her

professional duty to "not permit a person who ... pays the lawyer to render legal

services for another to direct or regulate the lawyer's professional judgment in

rendering such legal services." RPC 5 .4(c).

       The trial court concluded that Stewart Title was an intended beneficiary of

Witherspoon's representation of Sterling and thus that Witherspoon owed a duty of

careful representation to Stewart Title, based in part on finding a contractual duty

on the part of Witherspoon to inform Stewart Title and in part on the alignment of



                                           -10-
Stewart Title Guar. Co. v. Sterling Savings Bank, et al., No. 87087-0



interests between Witherspoon and Stewart Title. We hold that an alignment of

interests is insufficient to support a duty of care to a nonclient. We further hold

that a contractual duty to inform is insufficient to support a duty of care to a

nonclient.    Putting both of them together does not cure the insufficiency.

Therefore, the trial court erred in finding that the first Trask factor was satisfied

and should have granted Witherspoon's motion for summary judgment based on

lack of a duty to Stewart Title.

       The trial court did, however, grant summary judgment to Witherspoon on

the basis that equitable subrogation could not have succeeded as a defense in the

lien priority lawsuit upon which Stewart Title's malpractice action was based. We

therefore affirm the trial court's grant of summary judgment to Witherspoon, albeit

on different grounds. 4

                                     CONCLUSION




       4
         We take no position on whether the trial court's analysis of the parties' equitable
subrogation claims was correct. We note, however, that the equitable subrogation issue
in this case is very limited and fact-specific. The malpractice claim is based on
professional decisions made in 2008, not today, and the viability of the malpractice claim
therefore depended on not just whether the lawyers' decisions were incorrect but whether
those decisions demonstrated a failure, at the time they were made, to "exercise the
degree of care, skill, diligence, and knowledge commonly possessed and exercised by a
reasonable, careful, and prudent lawyer in the practice of law in this jurisdiction." Hizey
v. Carpenter, 119 Wn.2d 251, 261, 830 P.2d 646 (1992) (citing Hansen v. Wightman, 14
Wn. App. 78, 90, 538 P.2d 1238 (1975)).

                                            -11-
Stewart Title Guar. Co. v. Sterling Savings Bank, et al., No. 87087-0



       The trial court erred when it found a duty running from Witherspoon to

Stewart Title for purposes of a malpractice claim by Stewart Title. Our case law

establishes that a nonclient may not pursue a claim of malpractice against another's

attorney unless the nonclient shows, as a threshold matter, that the attorney's

representation was to some extent intended to benefit the nonclient. Stewart Title

has not shown that it was an intended beneficiary of Witherspoon's services to

Sterling.    Thus Stewart Title cannot pursue a malpractice claim against

Witherspoon based on Witherspoon's services to Sterling. The trial court granted

summary judgment in favor of Witherspoon on a different basis. We therefore

affirm that order, but on different grounds.




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Stewart Title Guar. Co. v. Sterling Savings Bank, et al., No. 87087-0




       WE CONCUR:




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