       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JAMES SWAIN, individually,                                                                f   '" j


                                                        DIVISION ONE                      en


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                        Appellant,                                                        s
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                                                        No. 73636-1-1                          1
                                                                                              ro     •-j-z'-r,
                                                        UNPUBLISHED OPINION
                                                                                              —^


SUREWAY, INC., a Washington
                                                                                              S?
corporation,                                                                                  XT     o™
                                                                                              en     ;r


                        Respondent.                     FILED: November 2, 2015



        Dwyer, J. — Following a de novo jurytrial after a mandatory arbitration

proceeding, a judgment was entered on James Swain's claim of negligent auto
repair against Sureway, Inc., arising out of repairs performed by Sureway on
Swain's vehicle. Swain appeals, contending that the trial court erred in denying

his motion for a mistrial after a witness for Sureway twice referenced the previous

arbitration proceeding in violation of Mandatory Arbitration Rule (MAR) 7.2. He
also contends that the trial court erred in granting Sureway's motion to dismiss

his claims relating to the Automotive Repair Act (ARA), ch. 46.71 RCW, and the
Consumer Protection Act (CPA), ch. 19.86 RCW, brought at the conclusion of the

plaintiff's case-in-chief.1 Because Swain does not establish an entitlement to

relief on any of his claims, we affirm.


        1The trial court also dismissed Swain's fraud and intentional misrepresentation causes of
action. No error is assigned to those rulings.
No. 73636-1-1/2




        The contact between Swain and Sureway, Inc. arose after Swain's vehicle

was damaged in a collision caused by a third party on December 13, 2006.2 The

third party was at fault for the collision. The third party's insurer, United Services

Automobile Association (USAA), agreed to pay for the cost of repairs.

        Because Swain was unable to drive his car away from the scene of the

collision, he had the vehicle towed to an impound lot, then to the dealership

where he purchased the car. The dealership sent vehicles to Sureway for

collision repair.

        On December 16, 2006, Sureway prepared a preliminary estimate for the

cost of repairs that totaled $12,636.09.3 A USAA adjuster then performed an

evaluation of the damage to Swain's vehicle. Based on this evaluation, the

adjuster prepared, on behalf of USAA, an estimate for the cost of repairs in the

amount of $9,919.84. On December 26, 2006, the insurance adjuster brought

USAA's estimate to Sureway and left his business card with the repair shop.

That same day, USAA issued a "two-party check" made payable to both Swain

and Sureway, in the amount of USAA's estimate. Sureway then prepared a


        2The third party who caused the initial collision is not a party to this appeal.
        3 On appeal, we can ascertain the timeline of events as to the estimates exchanged
between Sureway and USAA from Swain's opening statement to the juryand from Sureway's trial
brief. Robert Merritt, the owner of Sureway, testified at trial that the estimates were prepared a
"long time ago."
        Further, Merritt testified that the dates on the documents detailing the estimates for repair
are the dates when the documents were printed, which was not necessarily the same date that
the document was prepared.
        Although an attorney's statement in opening statement or in a trial brief does not
constitute evidence, neither party appears to dispute the order of events (although the parties do
disagree as to the legal significance of events).
No. 73636-1-1/3



"repair order" that included a section at the bottom of the form for customers to

provide signature authorization to complete repairs.

       A representative of USAA notified Swain that a check was in the mail for

the cost of the repairs. The representative also instructed Swain that he needed

to take the check to Sureway and sign it over to Sureway to pay for the repairs.

       On January 4, 2007, Swain took the check to Sureway. Swain testified

that, while at the repair shop, he expressed concern regarding the cost of the

repairs.4 Despite any concern, Swain signed a written authorization for Sureway
to proceed with the repairs and signed over the USAA check to Sureway to pay

for the repairs.

       Sureway repaired the vehicle. The repairs performed by Sureway
consisted of replacing the "steering knuckle." The caliper is attached to the
steering knuckle, so this repair also required Sureway to remove and replace the
caliper. Because Sureway performed "mostly suspension" work, it outsourced
other repairs of the vehicle.

       On February 14, 2007, Swain picked up the repaired vehicle from
Sureway. Swain did not conduct a full inspection prior to leaving the shop with
the repaired vehicle.

        Two days later, Swain was driving his car when the front end ofthe
vehicle "locked up." The car bounced "four to five times" before coming to a stop

 near a cement wall.

        4 Areview ofSureway's repair order indicates that when Swain was given an opportunity
to express his concern in writing in an area labeled "customer concern" on the form, his concern
was limited to "Engels tow bills—$262.72, Herbstow bill—$45.00."
No. 73636-1-1/4



      Swain had the vehicle towed to Stroud's Auto Rebuild where Darrell

"Mike" Harber inspected it. After Harber walked around the vehicle, he

recommended to Swain that the vehicle be "disassemble^]." On March 30,

2007, Harber received an authorization from Swain to proceed with

disassembling his vehicle.

      In examining the vehicle, Harber discovered that a "bolt [had] come loose

from the caliper," and "the caliper moved in location and jammed up in the

wheel."5

       In 2007, Swain filed a lawsuit against Sureway alleging negligent auto

repair. He later dismissed the suit. In 2010, Swain filed a second lawsuit against
Sureway alleging negligent auto repair, violations ofthe ARA and CPA, fraud,
intentional misrepresentation, and fraudulent omissions. The case was

transferred to mandatory arbitration. The arbitrator ruled in favor of Sureway.

Swain requested a trial de novo before a jury. The trial de novo was held from
May 28, 2014 through June 5, 2014. At trial, the jury heard testimony from
Sureway owner Robert Merritt, Harber, and Swain.

       On June 2, at the close of Swain's case-in-chief, Sureway moved for

judgment as a matter of law as to all of Swain's claims. The trial court heard
arguments from both sides before granting Sureway's motion to dismiss the
claims based on violation of the ARA, CPA, fraud, and intentional

misrepresentation. The trial court denied Sureway's motion to dismiss Swain's
claim for negligent auto repair.

       5The testimony does not indicatewhich front wheel locked up.

                                           -4-
No. 73636-1-1/5



       The trial continued. During cross-examination, Merritt twice referenced

the prior arbitration proceeding. Merritt's references to the prior arbitration

proceeding were as follows.

       QUESTION [Plaintiff's counsel, Ms. Bullis]: Now, your attorney asked you
       if you were notified of any repair issues to Mr. Swain's vehicle before suit
       was filed. Do you recall that?

       ANSWER: If I was notified?

       QUESTION: Yeah. If you were informed that there were any
       problems with Mr. Swain's car?

       ANSWER: I'm not remembering, no. It's been awhile.

       QUESTION: If I give you a document to refresh your memory,
       would that be helpful?

       ANSWER: Yes.

       MS. BULLIS: I am going to hand Mr. Merritt his deposition
       testimony.

       MS. BULLIS: Iam going to Page 53 and 54.1 am going to Line Item
       No. 15. On that beginning - do you see where I ask you -
        MS. SMETKA [Defense counsel]: Your Honor, Iwould object - she
        has not properly published the deposition. She is not using the
        proper means of inquiring or using it to refresh his recollection. I'm
        not sure what she is doing.

       THE COURT: Why don't you inquire whether his memory is
        refreshed on this issue having read this document.

        MS. BULLIS: Did you read it?

        ANSWER: Just so I understand it, this is a deposition? So this
        would have been the first time that I was called in to give
        testimony? Is this an -- was this our arbitration? Was - is this
        something different?

        Later, the following exchange took place.
No. 73636-1-1/6



      MS. BULLIS: Do you recall a time when the first lawsuit was
      dismissed against Sureway?

      ANSWER: It's always been a little confusing for me. All right.

      MS. BULLIS: Me too.

      ANSWER: It's taken quite a few years to quite get a grasp or get
      my head around the whole thing. But - I'm not that good with the
      legal process, so I am going to have to say I am not qualified to
      answer that.

      QUESTION: If I said the lawsuit was dismissed -- the first lawsuit
      was dismissed in December 2009, would you disagree with that?

      MS. SMETKA: Objection. Speculation.

      THE COURT: Overruled. You may answer if you are able.

      THE WITNESS: Well, my mind's wanting to know what was
      dismissed. What was on the table? I do remember that there was a
      lawsuit dismissed. When, where, the terms, I don't know that.

      MS. BULLIS: And you do recall that there was a second lawsuit
      filed against Sureway two months later; is that right?

      ANSWER: Yeah. Yeah.

      QUESTION: And that lawsuit, without going into the claims,
      contained additional claims; is that right?

      ANSWER: Okay. That's where it gets confusing. And then again,
       what you are calling a lawsuit, okay, Ijust remember a deposition
       and an arbitration.

       Swain moved for a mistrial based on a violation of MAR 7.2.6 The trial

court denied Swain's motion. Swain did not seek any other form of relief.


       6 The text of MAR 7.2(b)(1) and MAR 7.2(b)(2) provide:

       The trial de novo shall be conducted as though no arbitration proceeding had
       occurred. No reference shall be made to the arbitration award, in any pleading,
       brief, or otherwritten or oral statementto the trial court or jury either before or

                                               -6-
No. 73636-1-1/7



      At the conclusion of the evidence, the claim for negligent auto repair was

submitted to the jury. The jury returned a verdict in favor of Swain in the amount

of $1,080.72. The trial court entered judgment in a lesser amount, reasoning that

because Sureway made an offer of judgment in 2010 in the amount of

$18,649.98, which was not accepted by Swain, Sureway was the prevailing party

for purposes of an award of costs. Thus, the trial court entered judgment in favor
of Swain for $880.72, to reflect a $200 offset for Sureway's statutory attorney fee.

       Swain appeals.

                                                  II


       Swain first contends that "the trial court erred as a matter of law on a trial

de novo when it denied [his] motion for a mistrial." This is so, he asserts,

"because the trial court failed to give effect to the plain language of the

mandatory arbitration rules" that "clear[ly] and unambiguously]" state that no
reference shall be made during a de novo trial to an earlier arbitration

proceeding. While we agree with Swain that no reference is to be made to an
earlier arbitration, the texts of MAR 7.2(b)(1) and 7.2(b)(2) do not establish a sole
or mandatory remedy in case of violation. Swain's contention to the contrary is


       during the trial, nor, in a jury trial, shall the jury be informed that there has been
       an arbitration proceeding.

MAR 7.2(b)(1)

       Testimony given during the arbitration proceeding is admissible in subsequent
       proceedings to the extent allowed by the Rules ofEvidence, except that the
       testimony shall not be identified as having been given in an arbitration
       proceeding.

MAR 7.2(b)(2)
No. 73636-1-1/8



incorrect.


       The law is clear. A trial court's decision to grant or deny a motion for a

mistrial is reviewed for abuse of discretion. Adkins v. Aluminum Co. of Am.. 110

Wn.2d 128, 137, 750 P.2d 1257, 756 P.2d 142 (1988): accord Rich v.

Starczewski. 29 Wn. App. 244, 247, 628 P.2d 831 (1981) (citing Church v. West.

75 Wn.2d 502, 452 P.2d 265 (1969); Todd v. Harr. Inc.. 69 Wn.2d 166, 417 P.2d

945(1966)). Indeed,

               [t]rial courts have broad discretionary powers in conducting a
       trial and dealing with irregularities that arise. They should grant a
       mistrial only when nothing the court can say or do would remedy
       the harm caused by the irregularity or, in other words, when the
       harmed party has been so prejudiced that only a new trial can
       remedy the error.

Kimball v.Otis Elevator Co.. 89 Wn. App. 169, 178, 947 P.2d 1275 (1997). "In

determining the effect ofan irregularity, a reviewing court considers whether (1) it
was serious, (2) it involved cumulative evidence, and (3) the trial court properly

instructed the jury to disregard it." Kimball, 89 Wn. App. at 178.

       The relevant court rules provide:

       The trial de novo shall be conducted as though no arbitration
       proceeding had occurred. No reference shall be made to the
       arbitration award, in any pleading, brief, or other written or oral
       statement to the trial court or jury either before or during the trial,
       nor, in a jury trial, shall the jury be informed that there has been an
       arbitration proceeding.

MAR 7.2(b)(1).

       Testimony given during the arbitration proceeding is admissible in
       subsequent proceedings to the extent allowed by the Rules of
       Evidence, except that the testimony shall not be identified as
        having been given in an arbitration proceeding.
No. 73636-1-1/9



MAR 7.2(b)(2).

       The parties agree that a trial irregularity occurred: a witness for Sureway

twice mentioned the prior arbitration proceeding. The plain language of the rules

state that such references shall not be made. MAR 7.2(b)(1); MAR 7.2(b)(2).

However, the text of the rules do not establish any sole, or mandatory, remedy in

case of violation.

       Indeed, a survey of relevant case law demonstrates that the trial court

acted properly in its denial of the mistrial motion. For instance, in Rich v.

Starczewski. 29 Wn. App. 244, we addressed a similar issue. Francis

Starczewski appealed a judgment entered against him arising from injuries

sustained by Lydia Rich when a van driven by Starczewski collided with Rich's
bicycle. Starczewski. 29 Wn. App. at 245. We examined whether "the trial judge
erred in denying a defense motion for a mistrial after a police officer investigating
the accident was asked by Rich's counsel whether he issued a citation at the

scene and the officer responded affirmatively." Starczewski. 29 Wn. App. at 246.

       In answering this question, we accorded great deference to the trial judge,

stating, "[t]he determination of when a mistrial should be ordered because

improper evidence is inadvertently mentioned is a matter within the sound
discretion of the trial judge." Starczewski. 29 Wn. App at 247 (citing Church. 75
Wn.2d 502; Todd. 69 Wn.2d 166)). Moreover, we observed that, "[t]he trial

judge's presence in the courtroom enables him to best determine the effect, if
any, of such statements on the jury and if the statements were sufficient to deny
the appellant a fair trial." Starczewski. 29 Wn. App. at 247 (citing Church. 75 Wn.

                                         -9-
No. 73636-1-1/10



2d 502)). In finding no error, we were persuaded that "[t]he impact of such

statements in light of other evidence in the case is a proper consideration in

determining whether a fair trial is still possible." Starczewski. 29 Wn. App. at

247.


       The record herein indicates that, as in Starczewski. the trial judge carefully

considered the severity of the references to arbitration, whether the references

involved cumulative evidence, and the potential prejudice, if any, to Swain. In

ruling on the motion, the court stated:


       THE COURT: Is my memory accurate in thinking that the reference
       to arbitration from Mr. Merritt occurred only during your cross-
       examination?

       MS. BULLIS: That is the Court's recollection, but the rule does not
       limit it to cross-examination. It just says no testimony shall be
       used.

       THE COURT: I understand. The motion is denied. It appeared to
       me that Mr. Merritt was confused about previous proceedings, that
       is to say a lawsuit versus an arbitration, what claims were filed and
       when, what claim or claims were dismissed and when, whether his
       deposition pertained to an arbitration proceeding or to a lawsuit.
       My observation was that he was confused. And his comment
       regarding an arbitration was in the context ofexpressing his
       confusion. He was confused by the questions posed by [Swain's]
       counsel during cross-examination. So in the Court's view, the
       statement about an arbitration was not intended in any way, shape,
       or form by [Sureway] to deliberately introduce the subject of an
       arbitration in front of a jury in an effort to poison this trial in any way.
       I am confident it was inadvertent. I am confident that there is little,
       ifany, prejudice to [Swain's] case.

       I believe that if there is any prejudice to the introduction of
       testimony about previous proceedings, that there would be more
       prejudice to [Swain's] case for the jury to know, as they have been
       told through counsel - through [Swain's] counsel's questioning that

                                          -10-
No. 73636-1-1/11



       there was a lawsuit once filed and then subsequently dismissed to
       the extent that there is any prejudice to [Swain's] case from that.
       And I don't think there would be much prejudice. I think that is a
       greater level of prejudice than the mention of an arbitration.

       In any event, I see this as elicited by [Swain's] counsel, and, again,
       inadvertently mentioned by Mr. Merritt. I do not see this as the sort
       of problem or error that would require a mistrial to be ordered. I am
       declining to order that.

       It is apparent that the trial judge herein was not of the belief that "nothing

the court can say or do would remedy the harm caused by the irregularity," or

that "the harmed party has been so prejudiced that only a new trial can remedy

the error." Kimball. 89 Wn. App. at 178. Thus, the trial court properly exercised

its discretion in declining to order a mistrial.

       Nevertheless, Swain insisted at trial (and persists in asserting on appeal)

that the sole and mandatory remedy for a violation of MAR 7.2 is a mistrial.

Swain is wrong on the law and the trial court recognized this.

       THE COURT: Does the rule say that ifthe word "arbitration" comes
       up in front of a jurythat the Court shall declare a mistrial? It doesn't
       say that, counsel. And the Court has considered all the
       circumstances here. I have made a record of what my
       observations were, so that ifan appellate court reviews this trial
       record, they will have the benefit of this judge's observations of
       what occurred. In the exercise of my discretion, I am denying the
       motion for a mistrial.

       Neither MAR 7.2(b)(1) nor MAR 7.2(b)(2) require the grant of a mistrial to

be the sole and mandatory remedy in case of violation. Swain could not be more

wrong when he contends to the contrary. Moreover, the trial judge's ruling on the

motion was appropriately based on the law as it actually exists. Because the trial

court properly exercised its discretion, there was no error.


                                            11
No. 73636-1-1/12




      Swain next contends that the trial court erred in granting Sureway's motion

to dismiss his claim pursuant to the ARA. This is so, he asserts, because

Sureway did not provide him with a written estimate or obtain his oral

authorization before beginning repairs and charged him for unnecessary repairs

to his vehicle. We disagree.

      "We review a trial court's ruling under CR 50(a)(1) de novo, applying the

same standard as that applied by the trial court." Hawkins v. Diel. 166 Wn. App.

1, 13, 269 P.3d 1049(2011). "'Granting a motion for judgment as a matter of law

is appropriate when, viewing the evidence most favorable to the nonmoving

party, the court can say, as a matter of law, there is no substantial evidence or

reasonable inference to sustain a verdict for the nonmoving party.'" Guiiosa v.

Wal-Mart Stores. Inc.. 144 Wn.2d 907, 915, 32 P.3d 250 (2001) (quoting Sing v.

John L Scott. Inc.. 134 Wn.2d 24, 29, 948 P.2d 816 (1997)). "'Substantial

evidence' is evidence sufficient to persuade a fair-minded, rational person that

the premise is true." Hawkins. 166 Wn. App. at 13 (quoting Wenatchee v.

Sportsmen Ass'n v. Chelan County. 141 Wn.2d 169, 176, 4 P.3d 123 (2000)).

       The relevant court rule provides that a motion for judgment as a matter of

law may be granted:

       If, during a trial by jury, a party has been fully heard with respect to
       an issue and there is no legally sufficient evidentiary basis for a
       reasonable jury to find or have found for that party with respect to
       that issue, the court may grant a motion for judgment as a matter of
       law against the party on any claim, counterclaim, cross claim, or
       third party claim that cannot under the controlling law be maintained
       without a favorable finding on that issue.

                                        -12-
No. 73636-1-1/13




CR 50 (a)(1).

       "The Automotive Repair Act is a consumer protection statute designed to

foster fair dealing and to eliminate misunderstandings in a trade replete with

frequent instances of unscrupulous conduct." Bill McCurlev Chevrolet. Inc. v.

Rutz, 61 Wn. App. 53, 55, 808 P.2d 1167 (1991). "As a remedial statute, the

ARA is to be liberally construed to further this legislative purpose." State v. Pike,

118 Wn.2d 585, 591, 826 P.2d 152 (1992). "In particular, full effect must be

given to the plain language ofthe ARA 'even where the results sometimes seem
harsh to the mechanic's interests.'" Campbell v. Seattle Engine Rebuilders &

Remanufacturinq. Inc.. 75 Wn. App. 89, 93, 876 P.2d 948 (1994) (quoting Pike,

118Wn.2dat591)).

       The relevant provisions ofthe ARA that Swain alleged Sureway violated
provide, in pertinent part, as follows:

       [A] repair facility prior to providing parts or labor shall provide the
       customer or the customer's designee with a written price estimate
       of the total cost of the repair, including parts and labor, or where
       collision repair is involved, aftermarket body parts or nonoriginal
       equipment manufacturer body parts, if applicable.
RCW 46.71.025(1).

       A written estimate shall not be required when the customer's motor
       vehicle or component has been brought to an automotive repair
       facility's regular place of business without face-to-face contact
       between the customer and the repair facility. Face-to-face contact
       means actual in-person discussion between the customer or his or
       her designee and the agent or employee of the automotive repair
       facility authorized to intake vehicles or components. However, prior
       to providing parts and labor, the repair facility must obtain either the
       oral or written authorization of the customer or the customer's
       designee. The repair facility or its representative shall note on the

                                          -13-
No. 73636-1-1/14



       estimate or repair order the date and time of obtaining an oral
       authorization, the total amount authorized, the name or
       identification number of the employee who obtains the
       authorization, and the name of the person authorizing the repairs.

RCW 46.71.025(3) (emphasis added).

       The problem with Swain's contention that Sureway failed to comply with

these provisions of the ARA is that Swain does not acknowledge that—through

USAA's action of producing an estimate of repairs as a counter-offer to

Sureway's estimate and issuing a check in that amount payable to Swain and

Sureway, coupled with Swain's actions of accepting the check from USAA,

signing it over to Sureway, and signing a repair order that authorized Sureway to

proceed with repairs—Sureway was entitled to view USAA and Swain as being in
an agency relationship. In this regard, USAA was Swain's designee pursuant to

the ARA. Moreover, Swain accepted the benefit of the repaired vehicle without

objection. Thus, Swain's actions gave Sureway no reason to believe that
Sureway, who provided proper notice to USAA, had, in any way, violated the

ARA.

       Relevant authority supports this view. In Bill McCurlev Chevrolet v. Rutz.

61 Wn. App. 53, Rebecca Rutz was involved in an automobile accident that

damaged her car. Rutz and her insurance carrier agreed to have the car towed
to McCurley Chevrolet in order to receive an estimate for the cost of repairs. A

written estimate was provided to Rutz's insurer who then authorized the repairs.

McCurlev Chevrolet. 61 Wn. App. at 54. Rutz's father visited the shop weekly

while the car was being repaired. McCurlev Chevrolet. 61 Wn. App. at 54. After


                                       -14-
No. 73636-1-1/15



the car was repaired, Rutz was not satisfied and did not pay. McCurlev

Chevrolet. 61 Wn. App. at 55. McCurley Chevrolet sued Rutz for the cost of

repairs and a jury awarded McCurley Chevrolet $3,657.24. McCurlev Chevrolet.

61 Wn. App. at 55. On appeal, the court addressed the question of whether the

trial court erred "by denying the Rutzes' motion to set aside the verdict. .. based

on violations of the Automotive Repair Act, RCW 46.71, and the Consumer

Protection Act, RCW 19.86?" McCurlev Chevrolet. 61 Wn. App. at 54.

       In answering this question, the McCurlev Chevrolet court turned to

principles of agency law.

              A principal may be liable because of the apparent or
       ostensible authority of its agent. . . . Apparent authority exists when,
       although authority is not actually granted, "the principal knowingly
       permits the agent to perform certain acts, or where he holds him
       out as possessing certain authority." Tavlorv. Smith. 13 Wn. App.
       171, 177, 534 P.2d 39(1975).. . .

       Even if an agent acts without the principal's authority, the principal
       may nevertheless ratify the agent's act by acting with full
       knowledge of the act, accepting the benefits of the act or
       intentionally assuming the obligation imposed without inquiry.

McCurlev Chevrolet. 61 Wn. App. at 56-57. In holding that the insurer was the

apparent agent of the vehicle owner, the appellate court discussed facts very

much like those present herein.

       Here, the undisputed facts reflect Ms. Rutz and her father permitted
       the work to be undertaken without objection .... Additionally, Ms.
       Rutz accepted the insurance check without objecting to the written
       estimate. McCurley Chevrolet had no reason to believe Ms. Rutz
       had any objection to the estimate and, in fact, was told by her that
       she was going to endorse the check. Thus, we conclude in the
       context of the facts presented here the insurance carrier was the
       agent for Ms. Rutz as a matter of law and its acceptance of the
       written estimate complied with the act.

                                        -15-
No. 73636-1-1/16




McCurlev Chevrolet. 61 Wn. App. at 57. Thus, the court concluded, "the

Automotive Repair Act was not violated by the failure of McCurley Chevrolet to

deliver a written estimate to Ms. Rutz." McCurlev Chevrolet. 61 Wn. App. at 58.

       The same is true herein. Sureway provided USAA the information that

was required to be given to the vehicle's owner under the Automotive Repair Act.
An exchange of estimates occurred between Sureway and USAA. Sureway sent
a preliminary estimate to USAA which was followed by what was essentially a
counter-offer from USAA, agreeing to pay for repairs in a lesser amount than that
set forth in Sureway's estimate. USAA sent Swain a check, payable to both
Swain and Sureway, in the lesser amount, to pay for the repairs. Swain signed
the check from USAA over to Sureway. The amount of this check matches the
amount written on the repair order that was signed by Swain thereby authorizing
Sureway to complete the repairs. These actions constituted compliance with the
ARA.

       Although Swain testified that he expressed concern to Merritt at Sureway
regarding the repairs, such concern did not rise to the level of an objection. Nor
did Swain's concern dissuade him from signing the repair order that authorized
Sureway to proceed with the repairs. In fact, a review of the repair order that
Swain signed indicates that his concern did not reference the repairs at all.
 Instead, the information written in a "customer concern" area on the repair order
 listed only two towing bills and the respective amount owed on each one.


                                         16
No. 73636-1-1/17



      Based on Swain's actions, it was reasonable for Sureway to conclude that

it had the authority to complete the repairs through USAA's acceptance of the

original estimate, production of a counter-offer estimate, and payment of the

amount stated therein. Even assuming, arguendo, that USAA did not have the

authority to act as an agent on Swain's behalf, Swain's actions of signing over

the check, signing the repair order authorizing the repairs, and accepting the

benefit of the repaired vehicle without objection both established USAA's

apparent authority to act on Swain's behalfand constituted a ratification of

USAA's and Sureway's performance.

       In granting Sureway's motion to dismiss Swain's claims pursuant to the
ARA, the trial judge relied on McCurlev Chevrolet, stating:

       The Auto Repair Act violation claim, the Court is finding, as a
       matter of law, that USAA was Mr. Swain's agent for this transaction.
       Sureway's delivery of an estimate to USAA that - the evidence
       shows me, as it has been produced thus far in court, that this
       estimate delivered to USAA was fully compliant with the ARA,
       therefore complying with the Automotive Repair Act. The McCurlev
       Chevrolet vs. Rutz case, I think, is significant here. That's at 61
       Wn. App. Page 53, a 1991 decision. It's significant to the Court,
       instructive to the Court because it's very close factually.

              In the McCurlev case, an insurance company was given an
       estimate by the repair shop. They were paying for repairs. There
       was no objection noted by the car owner, the consumer. The car
       owner accepted a check from the insurance company, again,
       without objection to the estimate that had been provided. There it
       was held that in looking at those facts that the insurance company
       was the car owner's agent. And the company's acceptance of the
       estimate complied with the Automotive Repair Act.

              In the present case, despite Mr. Swain's strong skepticism of
       whether or not Sureway could repair his automobile to the same
       condition it was before the accident, despite that skepticism, he
       signed over the check. And despite the fact he had a conversation

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       that was frustrating with a USAA representative feeling like he
       didn't have a choice in the matter, in terms of his dealings with
       Sureway, he authorized these repairs. I find, as a matter of law,
       USAA was acting as Mr. Swain's agent or designee in this
       particular case. Therefore this transaction is also in compliance
       with RCW 46.71. 025, Subsection 3.

                It seems to me that the legislature wrote this subsection with
       this sort of a situation in mind: where an automobile is delivered to
        a repair shop and there's no face-to-face contact between the car
        owner and the repair person. In that situation, there is no estimate
        required to be delivered directly to the consumer when there's this
        lack of face-to-face contact, so long as the work, before it's
        performed, is only performed after an authorization by the
        consumer. That is what the Court sees occurring in this particular
        case. Mr. Swain, in writing, authorized these repairs. And there
        was no need for an estimate as particularly described in the
        Automotive Repair Act. It did not have to be delivered directly to
        Mr. Swain. It was delivered to his agent.[7]

        The court also correctly noted that the fact that Swain expressed concern

about the repairs or the fact that the vehicle's mileage was incorrectly recorded

on the repair order that Swain signed was immaterial to his authorization to

complete the repairs.

        Based on relevant case law as applied to the evidence herein, the trial

court did not err in dismissing Swain's ARA claim.

                                                  IV


        Finally, Swain contends that the trial court erred in granting Sureway's

motion to dismiss his claim pursuant to the CPA. This is so, he asserts, because



       7The trial judge opined that Swain's other assertion pursuant to the ARA, that
unnecessary repairs were performed (RCW 46.71.045(7)), was "encompassed within and
covered bythe negligent repair claim in this case," but did not supportthe ARA claim. The court
allowed the negligent repair claim to go to the jury.
        The courtcorrectly ruled that proof of a negligent repair does not constitute proof of an
unnecessary repair, within the meaning of the ARA.

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Sureway's failure to comply with the written estimate and authorization for repair

requirements of the ARA constitute a per se violation of the CPA.8 Because the

trial court did not err by dismissing Swain's ARA claim, it follows that it did not err

in dismissing Swain's CPA claim.9

       Affirmed.




We concur:




                                             \a§ i*i/Tftfl*t Of




       8 In a colloquy with the court regarding Sureway's motion to dismiss Swain's claims,
counsel for Swain argued:

       With respect to the Consumer Protection Act - when it comes to RCW 46.71, a
       violation of that section is a per se violation under the Consumer Protection Act.
       That would be RCW 46.71.070.




       "[Wjhen itcomes to the Consumer Protection Act, if the Courtwants to throw out
       the - under RCW 19.86, Plaintiffs don't have a problem with that. But we are
       alleging a per se violation of the CPA by a violation of the Automotive Repair Act.
       9Given our disposition of the foregoing issues, we need not address the issue presented
in Sureway's cross-appeal.

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