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                                                                2DI3MDV -U Pi, (2: 33




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


FIROZ IBRAHIM,                                  DIVISION ONE


              Appellant,                        No. 69554-1-1


         v.



AlU INSURANCE COMPANY,                          PUBLISHED OPINION
a foreign insurer,

              Respondent.                       FILED: November 4, 2013



       Dwyer, J. — "Stigma damages" and "diminished value" damages are not

synonymous. SeeMoellerv. Farmers Ins. Co. of Wash., 173 Wn.2d 264, 271,

267 P.3d 998 (2011). In this underinsured motorist insurance coverage dispute,

Firoz Ibrahim produced evidence of stigma damages, asserted that it was

evidence of diminished value damages, contended that the loss was, therefore,

covered by his AlU Insurance Company policy, and filed suit when AlU declined

to pay. AlU defended against Ibrahim's claims, averring that it had paid all

covered losses. The superior court agreed with AlU and granted its motion for

summary judgment, thereby dismissing all of Ibrahim's claims. We affirm.

                                         I


       On April 25, 2007, Ibrahim was involved in an automobile collision in King

County. Prior to the collision, Ibrahim had entered into a contract for automobile
insurance (hereinafter Policy) with AlU that covered the vehicle involved in the
No. 69554-1-1/2



collision—a 2007 Lexus ES 350. Among the terms in the Policy is coverage for

property damage losses suffered in a collision with an underinsured driver. This

UIM coverage provides as follows:

      Subject to the Underinsured Motorists Property Damage limit of
      liability stated on your Declarations Page, if you pay the premium
      for Underinsured Motorists Property Damage Coverage, we will pay
      for property damage caused by an auto accident which an
       insured is legally entitled to recover from the owner or operator of
       an underinsured motor vehicle.

This coverage, however, is subject to the limitations stated both in the Policy's

UIM section and on the Policy's Declarations Page. The limits stated in the UIM

section are as follows:

       Our Limit of Liability under this Part C for Property Damage to a
       covered auto from any one accident is the lowest of:
       1.     The actual cash value of the covered auto at the time of the
              accident, reduced by the applicable deductible and by its
              salvage value if you or the owner retain the salvage;
       2.     The amount necessary to replace the covered auto, reduced
              by the applicable deductible, and by the salvage value, if
              you or the owner retain the salvage;
       3.     The amount needed to restore the covered auto to its pre-
              loss condition, reduced by the applicable deductible; or
       4.     Any Limit of Liability shown on the Declarations Page for
              property damage under Part C, reduced by the applicable
              deductible, and by its salvage value if you or the owner
              retain the salvage.

The Declarations Page contains a monetary limit of liability in an amount equal to

$25,000 per accident for underinsured motorist coverage resulting in property

damage.

       Ibrahim's damaged vehicle was subsequently repaired and restored to a

physical condition identical to its physical condition prior to the accident. The
cost of repair totaled $18,908.62. The repairs were completed on July 2, 2007,

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No. 69554-1-1/3



and AlU reimbursed Ibrahim for the cost of the repairs—minus Ibrahim's $500

deductible—on August 13, 2007.

       In February of the following year, Ibrahim submitted to AlU a claim for the

diminished value of the vehicle, basing his claim on the UIM section of the Policy.

Shortly thereafter, AlU's representative sent Ibrahim a letter acknowledging that

"diminished value" damages were covered under the Policy, but cautioning that

such damages were only available to the extent that they could be proved. AlU's

representative further stated that "diminished value" damages could only be

determined at the time that the vehicle was sold and that "[a]s the vehicle age

wears on, the amount ofthe perceived diminished value reduces."1
       On January 24, 2011, Ibrahim filed a lawsuit against AlU. Ibrahim alleged

that AlU had wrongly denied his claim for diminished value and, in doing so, had

violated certain provisions of the Washington Administrative Code, WAC 284-30-

330 (1), (6), (7), as well as the Washington Consumer Protection Act, chapter

19.86 RCW (CPA). Thereafter, AlU moved for summary judgment on all of

Ibrahim's claims. In support of his response to AlU's summary judgment motion,

Ibrahim submitted an expert witness's appraisal of the vehicle's preloss value

and its postrepair value, which differed by $16,961. The expert witness's opinion

was explained as follows:

       This collision required repair to a vehicle that has never been in a
       body shop for damage repair of any kind. Therefore it is my opinion
       the Diminished Value is to be Inherent Diminished Value. This
       means that following a high quality Lexus factory approved repair of
       the vehicle, there is an amount of money that would need to be

        The significance, if any, of these incorrect statements of the law is discussed infra.

                                              -3-
No. 69554-1-1/4



      taken off the retail market selling price (with full and complete
      disclosure to the vehicle buyer that it has been in a major collision).
      The stigma that it has been is [sic] a "severe wreck" with substantial
      structural damage would surely turn away a potential buyer when
      they could purchase a similarly priced Certified Clean History 2007
      Lexus ES350 from a dealer or private party, or for that matter
      spend a little more and get a brand new one without the hassle and
      mental concern that they are driving a car that has been in a
       serious wreck.


       Although Ibrahim and his expert witness contended that the vehicle's

value had dropped as a result of the collision, both acknowledged that the vehicle

had been restored to its preloss condition. Ibrahim, in response to a request for

admission, stated, "According to the plaintiffs expert, John Walker, Sr. the car

has been returned to pre-loss condition to the extent possible with current

technology and therefore admits that it has been returned to pre-loss condition."

Ibrahim went on to admit that "Plaintiff is unaware of any remaining physical

damage to the vehicle in question and therefore admits the same." Ibrahim's

expert witness, in his appraisal, stated, "I concluded this vehicle was fully

repaired back to its pre-loss condition and there is no remaining physical damage

after these repairs."

       Ibrahim also asserted that AlU, by misrepresenting the nature of the policy

and by forcing him to institute litigation, had acted in bad faith and had violated

WAC 284-30-330 (1), (6) (7). The cited WAC provisions provide in pertinent part:

       The following are hereby defined as unfair methods of competition
       and unfair or deceptive acts or practices of the insurer in the
       business of insurance, specifically applicable to the settlement of
       claims:
                 (1) Misrepresenting pertinent facts or insurance policy
       provisions.


                                          -4-
No. 69554-1-1/5



               (6) Not attempting in good faith to effectuate prompt, fair and
       equitable settlements of claims in which liability has become
       reasonably clear. In particular, this includes an obligation to
       promptly pay property damage claims to innocent third parties in
       clear liability situations. If two or more insurers share liability, they
       should arrange to make appropriate payment, leaving to
       themselves the burden of apportioning liability.
               (7) Compelling a first party claimant to initiate or submit to
       litigation, arbitration, or appraisal to recover amounts due under an
       insurance policy by offering substantially less than the amounts
       ultimately recovered in such actions or proceedings.

WAC 284-30-330. Ibrahim averred that AlU's violation of the WAC provisions

resulted in a per se violation of the CPA.

       Ultimately, the trial court rejected Ibrahim's argument that he was entitled

to the loss of value to his vehicle, concluding that the Policy only required AlU to

restore Ibrahim's vehicle to its preloss condition, not its preloss value. The trial

court also concluded that AlU had violated neither the WAC nor the CPA.

Accordingly, the trial court granted AlU's summary judgment motion with respect

to all of Ibrahim's claims. Ibrahim filed a motion for reconsideration, which the

trial court denied.

       Ibrahim appeals.

                                             II


       Ibrahim contends that he is entitled to recover $16,961 in "diminished

value" to his vehicle. This is so, he asserts, because his expert witness's

appraisal posits that the difference between the vehicle's preloss value and
postrepair value is in an amount equal to $16,961. We disagree. The damages
he is claiming are stigma damages, which are not recoverable herein.

       We review de novo a trial court's summary judgment order. Mercer Place

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No. 69554-1-1/6



Condo. Ass'n v. State Farm Fire & Cas. Co., 104 Wn. App. 597,601, 17P.3d

626 (2000). Therefore, we perform "the same inquiry as the trial court."

Snohomish County v. Rugg. 115 Wn. App. 218, 224, 61 P.3d 1184 (2002).

Furthermore, construction of an insurance policy is a question of law. Grange

Ins. Co. v. Brosseau. 113 Wn.2d 91, 95, 776 P.2d 123 (1989).

       "Diminished value" damages are available where a vehicle "'sustains

physical damage in an accident, but due to the nature of the damage, it cannot

be fully restored to its preloss condition.'" Moeller, 173 Wn.2d at 271 (quoting

Moeller v. Farmers Ins. Co. of Wash.. 155 Wn. App. 133, 142, 229 P.3d 857

(2010), affd. 173 Wn.2d 264, 267 P.3d 998 (2011)). One example of this is
where weakened metal cannot be repaired. Moeller, 173 Wn.2d at 271. Unlike

"diminished value" damages, stigma damages "'occur when the vehicle has been

fully restored to its preloss condition, but it carries an intangible taint due to its
having been involved in an accident.'" Moeller, 173 Wn.2d at 271 (quoting
Moeller, 155Wn. App. at 142). Put somewhat differently, "diminished value"
damages may be available when the vehicle cannot be fully restored to its
preloss condition, whereas stigma damages may be available when the vehicle
can be fully restored to its preloss physical condition, but is perceived as being
less valuable due to the accident.

        Ibrahim's claimed damages are properly characterized as stigma

damages. Indeed, his own expert witness characterizes the vehicle's damages
as such, explaining that the "stigma" attached to the accident "would surely turn
away a potential buyer," given that a potential buyer could purchase a Lexus ES
                                           -6-
No. 69554-1-1/7



350 with a clean accident history and avoid "the hassle and mental concern" of

driving a car that had been in a serious wreck. Moreover, both Ibrahim and his

expert witness admitted that Ibrahim's vehicle had already been restored to its

preloss condition. Ibrahim, in response to a request for admission, stated,

"According to the plaintiff's expert, John Walker, Sr. the car has been returned to

pre-loss condition to the extent possible with current technology and therefore

admits that it has been returned to pre-loss condition." Ibrahim went on to admit

that "Plaintiff is unaware of any remaining physical damage to the vehicle in

question and therefore admits the same." Ibrahim's expert witness, in his

appraisal, stated, "I concluded this vehicle was fully repaired back to its pre-loss

condition and there is no remaining physical damage after these repairs."

       Nevertheless, Ibrahim contends that he is entitled to "diminished value"

damages. In making this assertion, Ibrahim mistakenly conflates "loss of value"
and "diminished value." The two are not synonymous. "Diminished value" is a

term of art, apposite only when a vehicle cannot be restored to its preloss

physical condition. It is undisputed that Ibrahim's vehicle was restored to its
preloss physical condition. Accordingly, Ibrahim's claimed damages are stigma
damages. Thus, the question ofwhether his Policy covers "diminished value"

damages is immaterial.2


        2Accordingly, we need not reach the issue ofwhether AlU's letter sent to Ibrahim is
admissible as extrinsic evidence. This is because Ibrahim contends that the letter serves as an
admission by AlU that Ibrahim's policy covers "diminished value" damages. Because we
concludethat Ibrahim's claimed damages are stigma damages, and not "diminished value"
damages, the letter provides no support for Ibrahim's contention that AlU owes him $16,961 in
"diminished value" damages.

                                              -7-
No. 69554-1-1/8



       The material question is whether Ibrahim's claimed damages are

recoverable, despite not constituting "diminished value" damages. To determine

this, we must look to his Policy's UIM coverage. The phrase "legally entitled to

recover," set forth in Ibrahim's UIM coverage section, is a common phrase in

insurance contracts and has been interpreted to mean that the UIM insurer

"'stands in the shoes' of the uninsured motorist and has the same defenses to a

claim that the uninsured motorist would have against the person seeking a

recovery against the motorist." Romanick v. Aetna Cas. &Sur. Co., 59 Wn. App.

53, 56-57, 795 P.2d 728 (1990). Accordingly, Ibrahim must have a viable claim

against the underinsured motorist in order to recover from AlU. See Romanick.

59 Wn. App. at 57.

       Ibrahim does have a viable claim for stigma damages against the

underinsured motorist. When a plaintiff's personal property is harmed but not

destroyed, the measure ofdamages may be calculated as the loss in the market
value ofthe property following the harm. McCurdvv. Union Pac. R.R. Co., 68
Wn.2d 457, 467, 413 P.2d 617 (1966). Ibrahim's vehicle was harmed but not

destroyed, and the market value lost is coextensive with the stigma damages
incurred. Accordingly, Ibrahim is "legally entitled to recover" stigma damages

from the underinsured motorist as a matter of tort law.

        Nevertheless, Ibrahim is not contractually entitled to recover stigma

damages from AlU because AlU validly limited its contractual liability.3 Insurers

        3We do not hold that an insurance company may vary the liability of a third party
tortfeasor. Had the tortfeasor been fully insured, Ibrahim—in all likelihood—would have been

                                              -8-
No. 69554-1-1/9



may limit their contractual liability so long as such limitations are not contrary to

statute or to public policy. Holzv. N. Pac. Ins. Co.. 53 Wn. App. 62, 65, 765 P.2d

1306 (1988). The underinsured motorist statute, RCW 48.22.030, is intended to

allow "an injured party to recover those damages which the injured party would

have received had the responsible party been insured with liability limits as broad

as the injured party's statutorily mandated underinsured motorist coverage

limits." Britton v. Safeco Ins. Co. of Am.. 104Wn.2d518, 531.707P.2d 125

(1985). In other words, "the intent underlying the statute is to compensate an

injured person at least to the limits of his underinsured motorist coverage, if any."

Holz, 53 Wn. App. at 65-66. Additionally, "a contract which is not prohibited by

statute, condemned by judicial decision, or contrary to the public morals

contravenes no principle of public policy." Holz. 53 Wn. App. at 65.

       The underinsured motorist statute contains no express or implicit

prohibition on limiting liability to "[t]he amount needed to restore the covered auto
to its pre-loss condition, reduced by applicable deductible," as AlU's policy
provides. See RCW 48.22.030. Although the purpose of the statute is to allow
the insured to recover from the UIM insurer as if the insurer were the tortfeasor,

this purpose is not vitiated simply because parties contract to limit the insurer's
liability. See Holz, 53 Wn. App. at 65-66 ("[T]he intent underlying the statute is to
compensate an injured person at least to the limits ofhis underinsured motorist
coverage, ifany" (emphasis added)). Here, AlU established a limit on damages

able to recover stigma damages from the tortfeasor. Our holding's applicability is limited to
instances in which an insured seeks to recover damages from an insurer pursuant to a policy's
UIM coverage.

                                               -9-
No. 69554-1-1/10



that Ibrahim would otherwise be "legally entitled" to receive, a limit that did not

contravene the letter or the spirit of the underinsured motorist statute. Indeed,

this limit on damages is similar to any other number of limits included in

insurance contracts, including monetary limits on recoverable damages. For

instance, Ibrahim agreed that, should his car be damaged by an underinsured

motorist, the limit of AlU's liability for that single accident would be set at

$25,000. Presumably, if Ibrahim had wanted a higher monetary limit he would

have had to pay a correspondingly higher premium. Indeed, Ibrahim does not

contend that AlU violated the UIM statute by limiting its liability to $25,000,

despite the potential for Ibrahim to have a claim against a tortfeasor in excess of

$25,000. Similarly, AlU could contractually limit its liability to repairing Ibrahim's

vehicle to its preloss condition. Here, the two parties agreed to the terms of the

contract and where the UIM statute is silent, we decline to make it speak.

       Additionally, the limitation on liability did not violate public policy. In

general, "a contract which is not prohibited by statute, condemned byjudicial
decision, or contrary to the public morals contravenes no principle of public

policy." Holz, 53 Wn. App. at 65. As we explained, AlU's limits of liability did not
violate any provision ofthe UIM statute. Furthermore, no judicial decision has
condemned a UIM insurer limiting its liability to restoring a vehicle to its preloss

condition, as opposed to its preloss value. Finally, no evidence has been

presented that would suggest that these limits of liability are contrary to the public

morals.




                                          -10-
No. 69554-1-1/11



       Moreover, the Policy's structure and content demonstrates that AlU validly

limited its liability to restoring the vehicle to its preloss condition and further that

AlU did not intend preloss condition to be synonymous with preloss value. An

insurance contract must be viewed "in its entirety" and a court "cannot interpret a

phrase in isolation." Moeller. 173 Wn.2d at 271. Furthermore, "[w]hen

interpreting a document, the preferred interpretation gives meaning to all

provisions and does not render some superfluous or meaningless." Bogomolov

v. Lake Villas Condo. Ass'n of Apartment Owners. 131 Wn. App. 353, 361, 127

P.3d 762 (2006).

       We interpret the phrase "preloss condition" in light of the rest of the

contract. The structure and content of the limits of liability section demonstrate

why interpreting this phrase in isolation would be in error. Even if "condition"
were synonymous with "value" in the abstract—a dubious proposition—the first
limit under the limits of liability makes the actual cash value of the covered

vehicle at the time of the accident recoverable (so long as it is the lowest of the

enumerated limits). Thus, if this dubious proposition were accepted, in effect,

two of the four limits on liability would be identical in that both would allow the

insured to recover the cash value of the vehicle at the time of the accident.

       Accepting this proposition would render the third limit—"preloss

condition"—superfluous. The prefatory clause to the limits of liability is as follows:

"Our Limit of Liability under this Part C for Property Damage to a covered auto




                                          -11 -
No. 69554-1-1/12



from any one accident is the lowest of. . . ." It then lists four possible limits.4
However, Ibrahim asks us to find identical meaning from provisions with

divergent language. Two limits with one meaning would render one of them

superfluous, which is what would occur here insofar as the first limit on liability—

"actual cash value"—carries an identical meaning to Ibrahim's requested

interpretation of "preloss condition." Consistent with our preference for avoiding

redundancy, we conclude that AlU intentionally used the word "value" to mean

what the car was worth on the market before the accident and that AlU

intentionally used the word "condition" to mean the physical state that the car

was in before the accident.

                                               Ill


       Ibrahim contends that AlU violated the CPA by misrepresenting facts

about the Policy and by forcing Ibrahim to institute litigation to recover his
claimed damages. This is so, he asserts, because AlU argued in the trial court

that it had, in fact, excluded claims for diminished value, despite its own

admission through the letter sent to Ibrahim that diminished value was covered

under the policy. We disagree.



       4 1.    The actual cash value of the covered auto at the time of the accident
               reduced by the applicable deductible and by its salvage value if you or
               the owner retain the salvage;
        2.     The amount necessary to replace the covered auto, reduced by the
               applicable deductible, and by the salvage value, if you or the owner
               retain the salvage;
        3.     The amount needed to restore the covered auto to its pre-loss condition,
               reduced by the applicable deductible; or
        4.     Any Limit of Liability shown on the Declarations Page for property
               damage underthis Part C, reduced by the applicable deductible, and by
               its salvage value if you or the owner retain the salvage.

                                               -12-
No. 69554-1-1/13



      An essential requirement in proving a violation of the CPA is showing that

the defendant engaged in an unfair or deceptive act or practice. Indus. Indem.

Co.ofNw.. Inc. v. Kalleviq. 114 Wn.2d 907, 920, 792 P.2d 520 (1990).

Insurance companies are prohibited from "engaging in unfair or deceptive acts or

practices ... as such acts or practices are defined in regulations promulgated by

the insurance commissioner." Starczewski v. Unigard Ins. Grp.. 61 Wn. App.

267, 272, 810 P.2d 58 (1991). As Ibrahim correctly notes, "[e]ven a single

violation by an insurer of any WAC provision is a perse violation of the CPA."

Appellant's Opening Br. at 11-12 (citing Leingang v. Pierce Countv Med. Bureau.

Inc.. 131 Wn.2d 133, 151, 930 P.2d 288 (1997)). However, an insurer who had

"'reasonable justification'" for denying coverage—even if the denial of coverage

was incorrect—will not run afoul of these prohibitions on unfair trade practice.

Starczewski. 61 Wn. App. at 273 (quoting Kalleviq. 114 Wn.2d at 917).

       Even if AlU's actions would otherwise violate the CPA, AlU contractually

limited its liability to Ibrahim such that it was only liable to pay for repairs that
would restore the vehicle to its preloss condition, not its preloss value. Because

of this, AlU—pursuant to the contract—had a reasonable justification for denying
Ibrahim's claim: namely, that Ibrahim failed to demonstrate "diminished value" as
that term is defined. Therefore, the trial court did not err in granting summary

judgment with respect to Ibrahim's CPA claim.

       Ibrahim also contends that AlU misrepresented the nature of the Policy

and acted in bad faith by compelling Ibrahim to initiate or to submit to litigation to



                                          -13-
No. 69554-1-1/14



recover amounts due under the Policy, and that this violated WAC 284-30-

330(1), (7).5 Ibrahim's claim lacks merit.
          The error in Ibrahim's position is that he was not entitled to recover the

amount he claims under the Policy. He claims "diminished value" damages but,

as explained above, even if his policy did include coverage for "diminished

value," he failed to prove any such damages and effectively admitted that he has

no "diminished value" claims. Accordingly, AlU did not act in bad faith by

compelling Ibrahim to initiate litigation because no amount was due under the

Policy.

          Affirmed.




We concur:




                                                                             \




          5The cited provisions provide in pertinent part:
                   The following are hereby defined as unfair methods of competition and
          unfair or deceptive acts or practices of the insurer in the business of insurance,
          specifically applicable to the settlement of claims:
                  (1) Misrepresenting pertinent facts or insurance policy provisions.
                    (7) Compelling a first party claimant to initiate or submit to litigation,
          arbitration, or appraisal to recover amounts due under an insurance policy by
          offering substantially less than the amounts ultimately recovered in such actions
      or proceedings.
WAC 284-30-330(1), (7).

                                                 -14-
