      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



CHRISTOPHER NELSON, a person;                        No. 72632-3-1
REBECCA WIRTEL, a person; and ALLI
 NELSON, a minor,                                    DIVISION ONE


                            Appellants,



GEICO GENERAL INSURANCE                               UNPUBLISHED
                                                                                 cr>
COMPANY, an insurance company,
                                                      FILED: January 11, 2016
                            Respondent.




      Cox, J. — Christopher Nelson, Rebecca Wirtel, and Alii Nelson, their

minor child (collectively "the insureds"), appeal summary judgment and related

orders that dismiss this action against Geico General Insurance Company.

Because there are genuine issues of material fact for trial, we reverse and

remand for further proceedings.

      In May 2011, Alii1 suffered a severe foot injury. She was walking on the

sidewalk in Seattle with her mother when an SUV driven by someone fleeing




      1 We adopt the insureds' naming conventions.
No. 72632-3-1/2



from police struck her. Alli's injuries cost more than $200,000 in medical

treatment.


       Alli's parents, Rebecca and Chris, each had an insurance policy issued by

Geico. Each policy contained both personal injury protection (PIP) and

underinsured motorist (UIM) benefits. Alii is also an insured under each policy.

       It appears the parents were initially unaware that these two policies might

provide PIP and UIM benefits for their daughter's injuries. Upon learning of this

possibility from the Washington State Crime Victim Compensation Program,

Chris notified Geico of the injury in August 2011. This was four months after the

accident.


       Chris and Rebecca agreed that he would manage Alli's insurance claims

under both policies. For example, when Rebecca received calls from Geico, she

referred the caller to Chris.

       Shortly after Chris reported the accident, Geico began making a series of

payments under the PIP provisions of both policies, eventually exhausting the

PIP coverages. It is undisputed that Geico made no UIM payments before the

insureds commenced this litigation.

       Geico claims that in September 2012, it discussed settlement of the UIM

coverages with Chris. Chris testified in his declaration opposing summary

judgment that Geico never notified him of such settlement offer. He also testified

that Geico never explained that Alii was eligible for the UIM coverages under the

policies:

              At no time was I ever notified of any settlement offer or given
       any opportunity to accept a payment amount from Geico for our
No. 72632-3-1/3



      uninsured motorist coverage. It was my understanding that Alii was
      covered under the Personal Injury Protection (PIP), which paid
      medical expenses, and Geico never told me that there were
      additional funds available under the policy. Only after hiring [our
      attorney] did we learn that there was additional money available
      under another part of the policy. I did not learn of any settlement
      offer until after we had retained [our attorney].[2]

      In May 2013, the insureds hired counsel for this action. Between June

and August 2013, their counsel learned details concerning the UIM coverages

under the policies through correspondence with Geico.

      In October 2013, counsel gave written notice to Geico of an Insurance Fair

Conduct Act (IFCA) violation. This notice alleged that Geico had failed to timely

pay the full benefits owed under the policies and violated insurance regulations.

      The parties differed on the amount of the full UIM benefits payable under

both policies. The insureds believed Alii should recover $25,000 under each

policy for a total of $50,000. Geico disagreed, maintaining that the terms of the

UIM policies prevented "stacking" of UIM benefits. Accordingly, the company

took the position that the total UIM amount payable to Alii was $25,000, not

$50,000. Geico did not make any payment of UIM benefits before this action's

commencement.


       In November 2013, the insureds commenced this action. Their claims

included breach of contract, bad faith, violations of the Insurance Fair Conduct

Act (IFCA), and violations of the Consumer Protection Act (CPA). After the




      2 Clerk's Papers at 206.
No. 72632-3-1/4



insureds commenced this action, Geico paid the undisputed $25,000 in UIM

benefits.


       Geico moved for partial summary judgment on the breach of contract

claim. It argued this as a coverage issue. Specifically, Geico argued that the

"anti-stacking" provision of the two policies prevented Alii from receiving the sum

of both $25,000 maximums. The court granted partial summary judgment to

Geico on this basis. The insureds do not appeal this order.

       Geico then moved for partial summary judgment on the insureds' bad

faith, IFCA, and CPA claims. The court partially granted this motion, dismissing

their bad faith and IFCA claims. In its denial of the insureds' reconsideration

motion, the court explained the basis of its decision. The court determined that

the insureds had failed to present evidence that Geico failed to promptly

investigate their claim. The court also ruled that even assuming Geico had

violated other insurance regulations, the insureds had failed to produce evidence

showing that they had suffered damages.

       Subsequently, the court denied Geico's motion for partial summary

judgment on the CPA claim. The court ruled that the insureds were entitled to

argue to the jury that Geico had failed to make a prompt settlement offer, causing

them emotional distress. Thereafter, on Geico's motion for clarification of this

decision, the court changed its initial ruling. Specifically, it dismissed the

insureds' CPA claim, determining that they had not produced evidence of

damages.

       The insureds appeal.
No. 72632-3-1/5


                          BAD FAITH, CPA & IFCA CLAIMS

       The insureds argue that Geico acted in bad faith and violated the CPA and

IFCA by violating certain insurance regulations. We hold that there are genuine

issues of material fact for trial.


       In a summary judgment motion, the moving party bears the initial burden

of showing the absence of a genuine issue of material fact.3 Ifthe moving party

is a defendant and meets this initial showing, then the inquiry shifts to the

nonmoving party.4 If the nonmoving party fails to make a showing sufficient to

establish the existence of a genuine issue of material fact, then the trial court

should grant the motion.5 In making this responsive showing, the nonmoving

party cannot rely on allegations in its pleadings.6 CR 56(e) requires that the

response, "'by affidavits or as otherwise provided in [CR 56], must set forth

specific facts showing that there is a genuine issue for trial.'"7

       At this point, the court considers the evidence and all reasonable

inferences therefrom in the light most favorable to the nonmoving party.8




       3 Young v. Key Pharm.. Inc.. 112 Wn.2d 216, 225, 770 P.2d 182(1989).

       4ld

       5 id^

       6id

       7 id, at 225-26 (quoting CR 56(e)).

       8 Id. at 226.
No. 72632-3-1/6


       This court reviews de novo summary judgment decisions, applying the

same standards as the trial court.9

       An insurer commits bad faith and engages in unfair practices as a matter

of law "when it fails to disclose the existence of UIM coverage to an injured

insured whose damages are substantial and whose account of the accident

plausibly indicates another driver is at fault."10

       Bad faith is a tort "defined as a breach of the obligation to deal fairly with

an insured [and to] giv[e] equal consideration to the insured's interests."11

       A CPA claim requires "(1) an unfair or deceptive practice, (2) in trade or

commerce, (3) that impacts the public interest, (4) which causes injury to the

party in his business or property, and (5) which injury is causally linked to the

unfair or deceptive act."12

       Under RCW 48.01.030, insurance affects the public interest. RCW

48.30.010 authorizes the insurance commissioner to promulgate regulations

defining certain practices as unfair or deceptive.13




       9 Wash. Fed, v. Harvey, 182 Wn.2d 335, 339, 340 P.3d 846 (2015).

      10 Anderson v. State Farm Mut. Ins. Co., 101 Wn. App. 323, 326, 2 P.3d
1029(2000).

       11 id, at 329.

       12 id, at 330.

       13 RCW 48.30.010(2).
No. 72632-3-1/7


                           Violations of Insurance Regulations

       The insureds argue that Geico violated one or more insurance regulations.

We hold that there are genuine issues of material fact whether Geico violated

insurance regulations.

       WAC 284-30-350 is one of several insurance regulations on unfair

practices. It provides "No insurer shall fail to fully disclose to first party claimants

all pertinent benefits, coverages or other provisions of an insurance policy or

insurance contract under which a claim is presented."14 Violating this regulation

is a per se deceptive act under the CPA.15

       Anderson v. State Farm Mutual Insurance Co. is our starting point to

address whether Geico is liable for bad faith and violation of the CPA.16 In that

case, Sharon Anderson brought CPA and bad faith claims against State Farm.17

Anderson argued that State Farm had failed to advise her of the UIM coverage

available under her policy.18

       Anderson suffered an injury in a car accident.19 The accident's cause was

unclear.20 Anderson and her husband gave statements indicating that the



       14 WAC 284-30-350(1).

       15 Anderson, 101 Wn. App. at 332.

       16 101 Wn. App. 323, 2 P.3d 1029 (2000).

       17 id, at 326.

       18id,

       19 id,

       20 Id. at 326-27.
No. 72632-3-1/8



accident was the fault of another driver.21 But other witnesses' statements

indicated that Anderson "was the sole cause of the accident."22

       State Farm obtained a police report and the statements previously

described.23 State Farm informed Anderson "that her benefits under the policy

included coverage for medical expenses and lost wages, each limited to

$10,000."24 But State Farm "did not mention that Anderson's policy also included

UIM coverage, potentially available if the accident was caused by another

driver."25

       "[E]ight months after the accident, Anderson learned about the possibility

of UIM coverage from an attorney she happened to meet."26 After UIM

arbitration, State Farm paid Anderson the UIM policy limits.27 Afterwards,

Anderson sued State Farm, alleging violations of several insurance regulations.28

        On appeal, this court "h[e]ld, as a matter of law, that an insurer commits

bad faith and engages in an unfair claims settlement practice when it fails to




        21
             id.

        22
             id. at 328.

        23
             id. at 327.

        24
             id.

        25
             id.

        26
             id. at 327-28.

        27
             id. at 328.

        28
             Id.


                                              8
No. 72632-3-1/9


disclose the existence of UIM coverage to an injured insured whose damages

are substantial and whose account of the accident plausibly indicates another

driver is at fault."29

        This court held that it was unreasonable for State Farm to determine that

UIM coverage did not apply under Anderson's version of the accident.30 And her

injuries were severe, "potentially far exceeding any other available coverage."31

Thus, State Farm violated WAC 284-30-350 by failing to inform Anderson of the

UIM coverage potentially available under her policy.32 Accordingly, Anderson

was entitled to summary judgment on her bad faith claim.33 Further, this violation

of WAC 284-30-350 also established a CPA violation.34

        Here, there is no dispute that Alii suffered substantial injuries to her foot

when an apparently uninsured driver of a SUV evading police pursuit struck her

on a sidewalk. There is also no dispute that her medical expenses far exceeded

the UIM and PIP limits of the two policies under which she was insured by Geico.

Just as in Anderson, her injuries "potentially far exceeded] any other available

coverage."35 Upon Chris making a claim on his daughter's behalf, Geico began



        29 id, at 326.

        30 id, at 331.

        31 id,

        32 id,

        33 id,

        34 id, at 332.

        35 Id. at 331.
No. 72632-3-1/10



paying PIP benefits for her injuries. Thus, there is no question that she is an

insured under each policy.

       Thus, the question is whether Geico fulfilled its duty under WAC 284-30-

350 to disclose to the insureds all benefits under the policies. Specifically,

between the report of the accident in August 2011 and September 2012, did

Geico disclose to the insureds the UIM benefits under the policies at issue?

       Geico argues that the insureds "were always aware that they were

pursuing a claim for [Alli's] injuries under the UIM coverage of both policies."36

Not so, on this record.

       Chris testified by declaration, "It was my understanding that Alii was

covered under the Personal Injury Protection (PIP), which paid medical

expenses, and Geico never told me that there were additional funds available

under the policy."37

       Geico relies on Chris's statement that the Washington State Crime Victims

Compensation Program notified him of the "right to utilize our uninsured motorist

insurance on both of our Geico car policies."38 That reliance is misplaced.

       Chris's testimony by declaration establishes that he was informed by a

third party of possible UIM coverage under the Geico policies. It does not say

Geico disclosed this to him. The plain words of WAC 284-30-350 place the duty




       36 Brief of Respondent Geico General Insurance Company at 26.

       37 Clerk's Papers at 206.

       38 Clerk's Papers at 205-06.

                                             10
No. 72632-3-1/11



on the insurer "to fully disclose to first party claimants all pertinent benefits,

coverages or other provisions of an insurance policy or insurance contract

under which a claim is presented."39 It is not material whether a third party had

previously informed the insureds that such coverage might be available. If that

were the test, the regulation would say so.

       Our examination of the record before the trial court at the time of summary

judgment fails to reveal whether Geico disclosed to the insureds the UIM benefits

under the policies prior to September 2012. This is the date on which Geico

alleges that it discussed settlement of the UIM benefits with the insureds. And by

stating this date, we do not decide whether, as the insureds argue, that there was

no disclosure of these benefits until an even later date. That is a matter to be

decided at trial.


       In any event, Geico's reliance on September 2012 does not obviate the

need to address whether it failed in its duty to disclose these benefits at an

earlier date, one following the report of the accident in August 2011. For

example, it is unclear whether it disclosed UIM benefits when the PIP benefits

were discussed and payments for this benefit began. In our view, this would

have been the natural time to also discuss UIM benefits. But the briefing below

does not adequately address this question.

       In its briefing on appeal, Geico again fails to identify what it did to disclose

the UIM benefits after the claim was made in August 2011 and before September




       39 WAC 284-30-350(1).
                                              11
No. 72632-3-1/12



2012. For the first time at oral argument of this case before this court, Geico

attempted to address this issue by citing the record on appeal.

       Specifically, Geico cited to its claim note under Chris's policy that appears

to have been made on September 22, 2011. The heading for this note indicates

it is part of the "PIP Adjuster" notes. The note indicates that Geico was told that

Alli's medical bills would be forwarded "for payment under PIP." The note goes

on to state that the adjuster "explained the coverage available."

       This evidence fails to prove that Geico disclosed the UIM coverage to the

insureds at this time. That is because this note does not say whether the

explained coverage included both PIP and UIM, or only PIP. Because this

appears to be the PIP adjuster notes, and the note references payments under

PIP while failing to mention UIM, this note does not prove that Geico disclosed

the UIM coverage on this date.

       Geico also points to its claim note that appears to have been made on

April 20, 2012. This note appears to memorialize a telephone conversation that

the PIP adjuster for Rebecca's policy had with an attorney. This attorney

appears to have been investigating the possibility of filing a claim on Alli's behalf

against the city of Seattle and its police department. The note states that this

attorney advised the adjuster that "he [was] not formally rep[resent]ing the family

at this time."40 The note also states that the adjuster explained both the PIP and

UIM coverage to the attorney.




       40 Clerk's Papers at 818.

                                             12
No. 72632-3-1/13



       But this note does nothing other than raising a genuine issue of material

fact whether Geico disclosed to the insureds the existence of UIM benefits on

this date, some eight months after the report of the accident. It is at odds with

Chris's declaration that "Geico never told me that there were additional funds

[other than PIP benefits] available under the policy."41

       Moreover, to the extent that Geico relies on the argument that the attorney

was then the insureds' agent and that disclosure to this agent constituted

disclosure to the insureds, the argument is not dispositive. That is because the

note states that this attorney explicitly stated that he was not formally

representing the insureds.

       Finally, Geico was required to disclose the available benefits under both

policies. This claim note is only for Rebecca's policy. And the note states that

the adjuster "d[i]dn't know what [coverage] [the] other pol[icy] had."42

       In sum, these notes fail to establish the absence of a genuine issue of

material fact that Geico disclosed both policies' UIM benefits to the insureds at

this time. And they do nothing to answer the larger question whether Geico

earlier disclosed UIM benefits for both polices to its insureds. Thus, there are

genuine issues of material fact whether Geico complied with its duty under WAC

284-30-350.




       41 id, at 206.

       42 Id. at 818.

                                             13
No. 72632-3-1/14


       For these reasons, we deny the insureds' request to direct entry of

summary judgment in their favor on this issue. Resolution of the competing

inferences from this record is a matter to be determined at trial.

       The insureds next argue that that Geico also violated WAC 284-30-360(4)

by failing to instruct them on what they needed to do to obtain the benefits of the

policies. We conclude there is also a genuine issue of material fact for this claim.

       WAC 284-30-360(4) provides:

              Upon receiving notification of a claim, every insurer must
       promptly provide necessary claim forms, instructions, and
       reasonable assistance so that first party claimants can comply with
       the policy conditions and the insurer's reasonable requirements.

       Here, Geico knew that Alii was a minor, thus a settlement would require

court approval. Yet this record puts at issue whether Geico ever informed the

insureds of this process. Rebecca testified by declaration that "Geico never told

[her] that [the insureds] would need to get court approval for any settlement and

that [the insureds] would need to get that process started."43 Chris also testified

to the same understanding.

       Geico disputes this point, relying on its claim notes, which indicate it

discussed a settlement with Chris. But because the insureds contest this

evidence with their own admissible evidence, there is a genuine issue of material

fact on this point.




       43 id, at 201.

                                             14
No. 72632-3-1/15



       The insureds also argue that Geico violated WAC 284-30-370 by waiting

more than 30 days to investigate their claim. The trial court disagreed and so do

we.



       Here, the trial court determined that the insureds produced no evidence

that Geico failed to properly investigate the claim. This was proper. The

insureds point to nothing in the record that indicates Geico failed to properly

investigate the claim. Rather, the record indicates that Geico knew the relevant

facts, including the involvement of a driver and the scope of Alli's injuries. Thus,

the insureds did not establish that Geico failed to investigate the claim within the

period stated in the regulation.

       The insureds argue that if Geico had investigated the claim, it would have

promptly offered a settlement. But a claim that an insurer failed to make a good

faith effort to settle a claim falls under WAC 284-30-330(6), not WAC 284-30-

370. Here, the fact that Geico did not promptly offer a settlement does not

establish that it failed to investigate the insureds' claim.

       Finally, the insureds argue that Geico violated WAC 284-30-330(6) by

failing to promptly offer a settlement. We decline to address this argument

because they failed to properly raise this argument below and the trial court

declined to consider it. Because the insureds fail to argue why this court should

consider this unpreserved argument, we need not address it any further.

       In sum, there are genuine issues of material fact for trial whether Geico

violated two insurance regulations—WAC 284-30-350 and WAC 284-30-360(4).




                                               15
No. 72632-3-1/16


Violations of these regulations would support the insureds' bad faith, IFCA, and

CPA claims.


        Geico argues that the insureds may not bring an IFCA claim based solely

on violations of the insurance regulations. We note that amicus curiae

Washington State Association of Justice Foundation properly states that the

insureds do not directly address "whether unreasonable delay in handling their

UIM claims is actionable under subsection (1) of RCW 48.30.015."44 These

statements of position are interrelated.

       But our review of this record leads us to the conclusion that the trial court

did not rule on this argument. Instead, the court appears to have assumed that

the insureds could bring an IFCA claim and decided the case on the issue of

damages. Similarly, this issue is not properly presented to us on appeal. For

these reasons, we decline to address this argument any further at this time. The

issue is more properly decided by the trial court, in the first instance.

                                     DAMAGES


       The next question is whether the insureds established evidence of

damages under any of their three claims. We conclude that they did.

       Here, Geico ultimately paid the full amount of the policies' coverages after

the insureds commenced this litigation. Thus, any damages must be based on

other actions or omissions of Geico.




       44 Brief of Amicus Curiae Washington State Association for Justice
Foundation at 10.


                                              16
No. 72632-3-1/17


      The trial court ruled that the insureds had failed to produce evidence that

they were damaged for their bad faith, IFCA, and CPA claims.

      These claims permit different types of damages. Under IFCA, plaintiffs

may recover "actual damages."45 Plaintiffs in a bad faith claim may recover

"'general tort damages.'"46 This includes emotional distress.47

       Damages for a CPA violation are narrower. The CPA requires an injury to

"business or property."48 Thus, the CPA does not permit emotional distress

damages.49 But "the business and property injuries compensable under the CPA

are relatively expansive."50 And "[t]he injury element can be met even where the

injury alleged is both minimal and temporary."51 Additionally, "[a] loss of use of

property" constitutes injury under the CPA.52




      45 RCW 48.30.015(1).

      46 St. Paul Fire & Marine Ins. Co. v. Onvia, Inc., 165Wn.2d 122, 133, 196
P.3d 664 (2008) (quoting Coventry Associates v. Am. States Ins. Co., 136 Wn.2d
269, 285, 961 P.2d 933 (1998)).

       47 Anderson, 101 Wn. App at 333.

       48 RCW 19.86.090.

       49 Panaq v. Farmers Ins. Co. of Wash.. 166 Wn.2d 27, 57, 204 P.3d 885
(2009).

       50 Frias v. Asset Foreclosure Servs.. Inc.. 181 Wn.2d 412, 431, 334 P.3d
529 (2014).

       51
            Id.


       52 Mason v. Mortgage Am.. Inc.. 114 Wn.2d 842, 854, 792 P.2d 142
(1990).


                                            17
No. 72632-3-1/18



      The attorney fees incurred in bringing a CPA claim do not qualify as a

compensable injury.53 But the cost of investigating an unfair practice may qualify

as an injury under appropriate circumstances.54

      Anderson is also instructive on the issue of damages. There, Anderson

alleged that delayed payment of benefits damaged her. This court rejected the

insurer's argument that Anderson had failed to allege an injury. It stated:

               State Farm argues Anderson has not proved damage or
      injury to property because her recovery in the arbitration ultimately
      made her whole despite the 10-month delay before State Farm
      opened a UIM file. Anderson, however, alleges loss of the interest
      on the value of her eventual recovery over that 10-month period.
      She seeks recovery of the attorney fees and costs she expended in
      initiating the claim. She also claims to have experienced financial
      penalties attributable to the delay because she and her husband
      were short of funds to pay bills associated with the accident. Such
      evidence is sufficient to raise an issue of fact as to economic harm.
      Moreover, because bad faith is a tort, a plaintiff is not limited to
      economic damages. Anderson alleges that she and her husband
      suffered emotional distress due to the financial difficulties. On
      remand she is entitled to a trial to prove the amount of damages,
      both financial and emotional, caused by State Farm's bad faith
      failure to disclose a pertinent coverage and the resulting delay in
       obtaining coverage.1551

       Here, the insureds submitted sufficient evidence to establish that they

were damaged for the purposes of all three of their claims.




       53 Panaq. 166 Wn.2d at 62.

       54 id, at 62-63.

       55 Anderson, 101 Wn. App at 333.


                                            18
No. 72632-3-1/19



                            Bad Faith & IFCA Damages

       Chris testified:


             If Geico had ever told me that they were offering the
       maximum amount available under the policies and needed my
       agreement to pay it, I would have immediately agreed to it. Had
       Geico told me that those funds could not be used for Alli's care until
       they had been approved by a court, I would have taken what[e]ver
       steps were necessary to get that approval process completed.
       Geico never explained to me how the claim process was supposed
       to work, what was available, or what I was supposed to do.[56]

       He also testified that Alii needed "alternative therapies such as massage

therapy and acupuncture" to manage her pain.57 Alli's health insurance did not

cover these therapies, thus the insureds had to use money from Geico to cover

these treatments. And once the PIP funds were exhausted, the insureds could

no longer pay for Alli's treatment. Rebecca also testified that ceasing these

treatments, which "ease[d] [Alli's] pain and discomfort," caused Alii to suffer.58

       This testimony sufficiently establishes that if Geico had explained the

coverage and the claim process, the insureds would have quickly settled with

Geico. And because of the delay in settling, the insureds could not afford all of

Alli's treatments, causing her pain and suffering. This constitutes damages for

the purpose of the bad faith claim.

       These damages also constitute damages under IFCA. IFCA allows

recovery of actual damages. Here, Geico does not dispute that these damages



       56 Clerk's Papers at 206.

       57 id, at 206-07.

       58 Id. at 201-02.


                                             19
No. 72632-3-1/20


constitute actual damages under IFCA. Instead, Geico argues only that the

insureds failed to submit sufficient evidence of their damages for summary

judgment purposes.

                                   CPA Damages

       The delay in receiving payment under the policies also constitutes injury

under the CPA. Loss of use of property is an injury under the CPA.59 Chris's

testimony that the insureds would have used the funds for Alli's treatment but

were unable to do so establishes that the insureds were deprived of the use of

the settlement funds.


       Additionally, part of the cost in hiring an attorney may also be injury under

the CPA. Looking at this case in the light most favorable to the insureds, Geico

failed to explain the terms of the policy or what the insureds had to do to settle

the case. Thus, it was only after hiring an attorney that they learned the scope of

their coverage. Their agreement with their attorney was for both investigation

and prosecution of claims.

       The trial court determined that this cost of investigation did not qualify as

an injury because the insureds hired their attorney on a contingent fee

agreement. We need not decide now whether this ruling was correct. But we

note that if this was a question of recovering reasonable attorney fees, case

authority holds that the fact that a client is not liable for fees does not preclude




       59 Mason. 114 Wn.2d at 854.


                                              20
No. 72632-3-1/21


the award of fees against an adverse party.60 Whether this undercuts the basis

for the court's decision to deny the cost of investigation is a matter the trial court

should consider on remand.


       In sum, the insureds established, for summary judgment purposes, that

they suffered damages under all three legal theories. Thus, the court erred when

it granted Geico summary judgment based on a lack of evidence of damages. In

reaching this conclusion, we express no opinion whether the insureds have

additional damage claims that were not originally presented to the trial court in

the motions that are currently under review.

                                 ATTORNEY FEES


       The insureds argue that they are entitled to an award of attorney fees on

appeal. We hold that such an award is premature because a prevailing party has

not, as yet, been determined.

       Both IFCA and the CPA provide for awards of attorney fees. But IFCA

provides attorney fees to a first party claimant who is a "prevailing party."61 And

the CPA provides for attorney fees when the plaintiff recovers damages.62 Here,

there is not yet a determination that the insureds prevailed or that they are

entitled to damages. Accordingly, a fee award is premature.




       60 See Blair v. Wash. State Univ., 108 Wn.2d 558, 570-71, 740 P.2d 1379
(1987).

       61 RCW 48.30.015(3).

       62 RCW 19.86.090.

                                              21
No. 72632-3-1/22


      We reverse the court's grant of summary judgment on the bad faith, CPA,

and IFCA claims and remand for further proceedings. We deny, as premature,

the insureds' request for reasonable attorney fees.

                                                      6pXt X
WE CONCUR:




                                            22
