      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MIKE KREIDLER, Insurance
                                                                                       o
Commissioner,                                    DIVISION ONE                      coo

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                                                                                      —i—{
                       Respondent,               No. 71063-0-1                          o



                                                                              o       •«-nf™
                  v.
                                                                                      enrn
                                                 PUBLISHED OPINION                           o

CASCADE NATIONAL INSURANCE
COMPANY,                                                                      en
                                                                                      —'O

                                                                              CO      2S<-

                       Respondent,

                  and


JAMES S. FELTMAN, Chapter 11
Trustee for the Estate of Certified HR
Services, Inc.,

                       Appellant.                 FILED: March 10, 2014



       Dwyer, J. — Insurance Commissioner Mike Kreidler and Bankruptcy

Trustee James Feltman have likely never met. Nevertheless, the lengthy

litigation between these two men—as stand-ins for two corporations (one
iniquitous, both insolvent)—continues. Today, we bring the legal strife between
these men one step closer to finality by affirming the superior court's ruling that

Kreidler (as Receiver of Cascade National Insurance Company) acted lawfully in
denying the claim of Feltman (as Trustee of the Estate of the bankrupt Certified
HR Services, Inc., as assignee of causes of action from the insolvent Midwest

Merger Management, Inc.) that Cascade owes $4.3 million to Midwest and,
No. 71063-0-1/2



hence, to Certified. In affirming the superior court's decision, we hold both that

the court did not abuse its discretion by confirming the Receiver's determination

that the Trustee failed to prove his fraudulent transfer claim and that the court did

not abuse its discretion in denying the Trustee's motion for discovery.

                                             I


       Cascade, which operated as a domestic stock insurance company in

Washington, had a history of financial difficulties that prompted increased

scrutiny from the Office of the Insurance Commissioner (OIC). On November 30,
2004, after notifying Cascade three times that it needed to cure a deficiency in its

capital and surplus, the OIC obtained a superior court order appointing Kreidler,
the Insurance Commissioner, as Receiver for the purpose of seizing Cascade.

The court placed Cascade into receivership due both to Cascade's fragile

financial condition and to questionable transactions between Cascade and
Midwest. After spending nearly one year trying to rehabilitate Cascade, the

Receiver petitioned the court for and obtained an order allowing it to liquidate

Cascade.

       Feltman is the Chapter 11 Trustee for the Estate of Certified HR Services,

Inc. in a bankruptcy case pending in the United States Bankruptcy Court for the
Southern District of Florida. In 2006, the Trustee, on behalf of Certified, entered

into a settlement agreement with Midwest, which transferred and assigned to
Certified all of Midwest's claims against Cascade. Subsequently, on December

4, 2007,1 the Trustee filed a proof of claim with the Receiver. The proof of claim


       1Twenty-one months after the Receiver's March 4, 2006 deadline for submitting claims.
                                             2
No. 71063-0-1/3



was based on a fraudulent transfer theory and alleged, in pertinent part, the

following:

        Each of the transfers [from Midwest to Cascade] are fraudulent
        transfers under RCW 19.40.041 and 19.40.051 because a) each
        transfer was made without the Transferor receiving reasonably
        equivalent value from Cascade, and b) at the time of each transfer,
        the Transferor was i) insolvent and/or became insolvent as a result
        of each transfer, ii) engaged or was about to be engaged in a
        business or transaction for which its remaining assets were
        unreasonably small in relation to the business or transaction, and/or
        iii) intending to incur, or should have reasonably believed that it
        would incur, debts beyond its abilities to pay as they became due.

The Trustee sought to recover $4.3 million from the Receiver.

        In order to understand the Trustee's claim against the Receiver, it is

necessary to be aware ofthe history between Cascade and Midwest, and ofthe
federal litigation in which they were embroiled. Anthony Huff2 and Danny Pixler
created Midwest to acquire Certified Services, Inc., Certified HR Services, Inc.,

and their affiliates, and to operate these companies as professional employer

organizations (PEO). A PEO contracts with employers to provide payroll
services and workers' compensation insurance coverage to their employees.

Midwest would first take possession and control of all of the insurance premiums

and fees collected by the PEOs from the employees and employers, and would
then procure and service the workers' compensation insurance coverage.

        In 2003, Midwest lost coverage from its major carrier that had been

providing workers' compensation coverage for the PEOs. This left Midwest in

        2Although Huff had absolute control and authority over Midwest, he could not engage in
the business of insurance because he had three federal court convictions for mail fraud relating to
acts involving insurance and misappropriation of money paid by others for insurance premiums.
Aware that his name could not be involved in any insurance business enterprise, Huff concealed
 his ownership and control of Midwest.
No. 71063-0-1/4



need of a carrier willing to provide coverage for over 15,000 PEO employees in

California and that was licensed to provide workers' compensation insurance in

California—a difficult license to obtain. Midwest learned that Cascade, which

was having financial problems and needed an infusion of funds to keep its capital

and surplus levels above the regulatory minimums, had such a license. Midwest

subsequently agreed to provide Cascade with capital and surplus in exchange for

a sale or transfer of a percentage ownership interest, which would allow Cascade

to stay operational so that it could provide insurance coverage for Midwest's

California PEO operations.

       In order to complete this transaction, the OIC required submission of

certain financial records. Knowing that his name could not be tied to the

transaction, Huff created Gudeman &Weiss, LLC (G&W), an entity he used to

acquire the interest in Cascade and to conceal his involvement in the transaction.

G&W had no assets, capital contributions, or financial ability to make such a

purchase and, as a result, Huff and Midwest provided all of the funds that were

paid to Cascade. Although Midwest claimed to be a lender to G&W, G&W never

executed any promissory notes to Midwest and was never asked to reimburse

Midwest. Midwest's infusion of capital into Cascade allowed Midwest to satisfy

its obligation to procure workers' compensation coverage from a licensed insurer

for the California PEO, thus allowing Midwest to continue to receive premiums

from the California PEO. However, Midwest did not pay Cascade for all of the

insurance coverage, which resulted in a $19,310,744.00 debt to Cascade.

       Once Cascade went into receivership, the Receiver filed suit in federal
No. 71063-0-1/5



court against Midwest and its operators, Anthony Huff, Sheri Huff,3 and Pixler.
The Receiver's claims included, among others, misappropriation, civil conspiracy,

violations of the Criminal Profiteering and Consumer Protection Acts, and breach

of contract. Following a jury verdict in the Receiver's favor, the federal district

court entered judgment against Midwest and its co-defendants, jointly and

severally, for the unpaid premiums and fees of $19,310,744.00, plus attorney

fees and costs, for a total judgment in excess of $21 million.

       Subsequently, in this action, the Receiver denied the Trustee's claim on

March 27, 2012 (hereinafter Initial Determination). The Receiver determined that

the Trustee did not provide evidence or proof to establish the necessary

elements of his claim that Midwest's transfers to Cascade were fraudulent and,

accordingly, the Trustee failed to meet his burden under either RCW 19.40.041

or RCW 19.40.051. Additionally, the Receiver concluded that the Trustee's

fraudulent transfer claim failed because Midwest received "reasonably equivalent

value" from Cascade, as evidenced by the payment of capital and surplus to

Cascade, which allowed Midwest to continue providing workers' compensation

insurance for its PEO operations.4
        Before filing an objection to the Initial Determination, the Trustee filed a

discovery motion in superior court on May 11, 2012, seeking to obtain
"documents, materials and other records concerning the Receiver's Initial Claim

Denial." Although the Receiver disputed the Trustee's claim that he was entitled

        3Anthony Huff's wife.
        4 In the Initial Determination, the Receiver also classified the Trustee's claim as a late-
filed claim, noting that"even if accepted and approved by the Receiver on the merits" it would be
a Class 7 claim pursuant to RCW 48.31.280(7). However, the Receiver did not state that he was
denying the Trustee's claim because it was filed late or because it was unlikely to be recoverable.
No. 71063-0-1/6



to discovery, the Receiver voluntarily provided the Trustee with documents and

exhibits from the federal court litigation. The Trustee then withdrew the discovery

motion.

       On May 29, the Trustee timely submitted a written objection to the

Receiver's Initial Determination. Therein, the Trustee asserted that although

Midwest had paid approximately $4.3 million for purchase of Cascade preferred

stock, the stock was actually issued to G&W. Therefore, the Trustee contended,

the Receiver erred in concluding that Midwest received "reasonably equivalent

value" from Cascade.

       On August 2, after considering the Trustee's objection, the Receiver
denied the Trustee's claim (hereinafter Final Determination). In the Final
Determination, the Receiver reiterated that the Trustee had failed to satisfy his
burden to prove each element of his fraudulent transfer claim. Additionally, in
addressing the objection raised by the Trustee regarding the issuance of stock
certificates to G&W, the Receiver concluded, first, that by virtue of providing the
infusion of capital and surplus to Cascade, Midwest was able to meet its
obligation to obtain licensed workers' compensation insurance for its PEOs and
to continue to collect payments from the PEOs, and, second, that evidence
presented in the federal court litigation established that G&W was a front for
 Midwest, meaning that Midwest received the benefit ofthe stock certificates.
          On August 6, the Receiver filed a petition in superior court seeking an
 order confirming its Final Determination and noted the petition for hearing. The
 Trustee opposed the petition and also sought a continuance and additional
No. 71063-0-1/7



discovery. Thereafter, the superior court confirmed the Final Determination and

denied the Trustee's request for a continuance and additional discovery. In

doing so, the court made the following pertinent findings with respect to the

Trustee's fraudulent transfer claims: the Trustee failed to meet his burden of

proof on his fraudulent transfer claim; sufficient evidence supported the

Receiver's determination that Midwest received reasonably equivalent value from

Cascade; and the Receiver's Final Determination was supported by substantial

evidence.

       The court also made the following pertinent findings with respect to the

Trustee's motion for discovery: the Trustee could have obtained information

relating to the federal litigation from public sources, from Midwest, or from

Midwest's counsel in the federal litigation; the Receiver had no responsibility to

produce such information in the statutory proof of claim proceedings; the

Trustee's attempt to seek broad discovery as to the Receiver's actions in

administration of the estate was impermissible under the statutory proof of claim

process, which is controlled by RCW 48.31.145; and, even if such discovery

requests were properly before the court, nothing in the record supported access

to such broad discovery.

       The Trustee appeals from the trial court's order confirming the Final

Determination and denying his request for additional discovery.

                                          II


       The Trustee contends that the Receiver abused his discretion in

concluding that Midwest had received reasonably equivalent value, and that the
No. 71063-0-1/8



trial court erred when it confirmed this determination. This is so, he avers, for

two reasons: (1) the federal litigation did not establish that G&W was operating

as a front for Midwest, and (2) despite Midwest's $4.3 million contribution to

Cascade, Cascade still went into receivership just one year later. We disagree.

       In an insurance receivership action, the trial court reviews the Receiver's

determinations under an abuse of discretion standard.

       As the program of rehabilitation takes form and the steps unfold,
       the trial court in its supervisory and reviewing role may not
       substitute its judgment for that of the Commissioner, but may and
       should only intervene or restrain when it is made to appear that the
       Commissioner is manifestly abusing the authority and discretion
       vested in him and/or is embarking upon a capricious, untenable or
       unlawful course.

Kueckelhan v. Fed. Old Line Ins. Co. (Mut.), 74 Wn.2d 304, 316, 444 P.2d 667

(1968). In explaining the rationale for this deferential standard, the Kueckelhan

court made clear that the commissioner's role is more aptly characterized as a

neutral arbiter than as a zealous advocate.

       [T]he legislature, in its wisdom, in its reliance upon the presumed
       expertise and experience of a duly elected and functioning state
       official, and in the public interest, vested the Commissioner with a
       realistic and effective control over the administration of the affairs
       and assets of an insurer found to be in need of rehabilitation. The
       authority so vested necessarily contemplates and embraces a
       considerable degree of independent administrative judgment and
       discretion to be exercised by the Commissioner if he is to carry out
       the responsibility and trust imposed upon him.

Kueckelhan, 74 Wn.2d at 314.

       Although it is well settled that the trial court's standard of review is abuse

of discretion, no reported decision has clarified what standard this court should

employ in reviewing the trial court's order. California appellate courts, however,


                                           8
No. 71063-0-1/9



review trial court decisions in insurance receivership actions utilizing an abuse of

discretion standard. Low v. Golden Eagle Ins. Co., 104 Cal. App. 4th 306, 316,

128 Cal. Rptr. 2d 423 (Cal. App. 1 Dist. 2002); In re Exec. Life Ins. Co., 32 Cal.

App. 4th 344, 358, 38 Cal. Rptr. 2d 453 (Cal. App. 2 Dist. 1995). In California

and Washington, the policy rationales for affording the insurance commissioner

significant discretion in insurance receivership proceedings are quite similar.

Compare Low, 104 Cal. App. 4th at 315-16 ("Our high court has long since

observed that such conservation proceedings arise under the broad police

powers of the state to ensure the reorganization or orderly liquidation of insolvent

insurers and the protection of their policyholders and the public"), with

Kueckelhan, 74 Wn.2d at 315 ("This task [of conducting the business of the

seized company] is assigned by the legislature to the Insurance Commissioner

who acts to protect the general public, the policyholders and owners of the
company, and the company itself.'" (quoting Kueckelhan v. Fed. Old Line Ins. Co.
(Mut), 69 Wn.2d 392, 406, 418 P.2d 443 (1966))). Accordingly, in furtherance of
the policy explicated in Kueckelhan, we review the trial court's confirmation of the
Receiver's Final Determination for an abuse of discretion. As part of this

circumscribed review, we accept "the trial court's resolution of credibility and

conflicting substantial evidence, and its choice of possible reasonable
inferences." Exec. Life Ins., 32 Cal. App. 4th at 358. A decision constitutes an

abuse of discretion when it is "is manifestly unreasonable or based on untenable

grounds." In re Marriage of Fiorito, 112 Wn. App. 657, 663-64, 50 P.3d 298
(2002).
No. 71063-0-1/10



      A court's decision is manifestly unreasonable if it is outside the
      range of acceptable choices, given the facts and the applicable
      legal standard; it is based on untenable grounds if the factual
      findings are unsupported by the record; it is based on untenable
      reasons if it is based on an incorrect standard or the facts do not
      meet the requirements of the correct standard.

Fiorito, 112 Wn. App. at 664.

      The Trustee makes fraudulent transfer claims pursuant to RCW 19.40.041

and RCW 19.40.051, both of which are provisions of Washington's Uniform

Fraudulent Transfer Act (UFTA). RCW 19.40.041 provides in part:

      (a) A transfer made or obligation incurred by a debtor is fraudulent
      as to a creditor, whether the creditor's claim arose before or after
      the transfer was made or the obligation was incurred, if the debtor
      made the transfer or incurred the obligation:
             (1) With actual intent to hinder, delay, or defraud any creditor
      of the debtor; or
            (2) Without receiving a reasonably equivalent value in
      exchange for the transfer or obligation, and the debtor:
            (i) Was engaged or was about to engage in a business or a
      transaction for which the remaining assets of the debtor were
       unreasonably small in relation to the business or transaction; or
             (ii) Intended to incur, or believed or reasonably should have
      believed that he or she would incur, debts beyond his or her ability
      to pay as they became due.

RCW 19.40.051 provides in part:

       (a) A transfer made or obligation incurred by a debtor is fraudulent
       as to a creditor whose claim arose before the transfer was made or
       the obligation was incurred if the debtor made the transfer or
       incurred the obligation without receiving a reasonably equivalent
       value in exchange for the transfer or obligation and the debtor was
       insolvent at that time or the debtor became insolvent as a result of
       the transfer or obligation.

       As part of proving a constructive fraud claim pursuant to RCW

19.40.041 (a)(2)(i)(ii) and 19.40.051(a), the Trustee must demonstrate that

Midwest did not receive reasonably equivalent value from Cascade. The UFTA


                                         10
No. 71063-0-1/11



does not provide a general definition for the phrase "reasonably equivalent value"

and Washington courts have not provided guidance in this context.

Nevertheless, because the provisions in which this phrase appear mirror the

fraudulent transfer provision of the Bankruptcy Code, decisions under the Code

are instructive. Compare RCW 19.40.041 (a)(2)(i)(ii), and RCW 19.40.051(a),

with 11 U.S.C. § 548(a)(1)(B)(i)(ii)(l)(ll)(lll). See also In re Reisner. 357 B.R.

206, 216 (Bankr. E.D. N.Y. 2006) (concluding that "[t]he analysis under Florida
law of whether reasonably equivalent value was given is identical to that under

Section 548 of the Bankruptcy Code" after identifying that Florida law was

"essentially identical" to the fraudulent transfer provisions of the Code).
Decisions interpreting the Code indicate that "[i]t is well settled that a debtor need
not benefit directly in order to receive reasonably equivalent value for a transfer.
He may benefit indirectly through benefit to a third person." Johnson v. First Nat'l
Bank, 81 B.R. 87, 88 (Bankr. N.D. Fla. 1987) (citing Williams v. Twin City Co.,
251 F.2d 678, 681 (9th Cir. 1958); Klein v. Tabatchnick. 610 F.2d 1043, 1047 (2d
Cir. 1979); Rubin v. Mfrs. Hanover Trust Co., 661 F.2d 979, 991 (2d Cir. 1981)).
Furthermore, "'[i]f the consideration given to a third person ultimately landed in
the debtor's hands, or if the giving of the consideration to the third person
otherwise confers an economic benefit upon the debtor, then the debtor's net

worth has been preserved          '" Johnson. 81 B.R. at 88 (second alteration in
 original) (quoting Rubin, 661 F.2d at 991).
        Although Cascade did not issue stock certificates directly to Midwest,
 evidence in the federal court litigation indicates that G&W—the entity that


                                           11
No. 71063-0-1/12



received the stock directly—was operating as a front for Midwest. The Receiver

explicitly relied on this evidence in concluding that Midwest did receive

reasonably equivalent value because it controlled G&W and, thus, that the

benefit of the stock was ultimately conferred upon Midwest. Nevertheless, the

Trustee contends that the Receiver erred by asserting that the federal court

litigation "established" that G&Wwas a front for Midwest. Specifically, the

Trustee asserts, "[njeither the jury verdict nor the Ninth Circuit decision found that

G&W was a 'front' for Midwest." However, the Trustee cites no authority for the

proposition that, in order for the Receiver to conclude that G&W was a front for

Midwest, his conclusion must have been anchored to a jury verdict or a federal

court order. The Receiver acted within his discretion when he concluded that the

evidence from the federal litigation was dispositive.

       Similarly, the Receiver did not abuse his discretion by concluding that
Midwest received reasonably equivalent value by virtue of Cascade staying in

business, which in turn allowed Midwest to satisfy its obligation to procure

workers' compensation coverage from a licensed insurer for the California PEO,
thus allowing Midwest to continue to receive premiums from the California PEO.
The Trustee asserts that Midwest did not receive reasonably equivalent value

because, despite its infusion of capital into Cascade, Cascade went into

receivership just one year later. However, the Trustee does not provide authority
to support his position, and his legally unsupported assertion that Midwest did not
receive reasonably equivalent value does not provide a tenable ground on which
either this court or the superior court could conclude that the Receiver abused his


                                          12
No. 71063-0-1/13



discretion.5

        The Trustee next contends that the Receiver abused his discretion when

he determined that the Trustee failed to meet his burden of proof on his

fraudulent transfer claim, and that the trial court erred when it confirmed this

determination. This is so, the Trustee asserts, because the Receiver's own

documents show that Midwest paid approximately $4.3 million to Cascade and

received nothing in return. We disagree.

        In order to establish his fraudulent transfer claim under chapter 19.40

RCW, the Trustee needed to prove that Midwest did not receive reasonably

equivalent value from Cascade, and also establish either that (1) Cascade had
an actual intent to defraud, or (2) its actions constituted constructive fraud. See
Sedwick v. Gwinn. 73 Wn. App. 879, 885, 873 P.2d 528 (1994). With respect to

"actual intent," the Trustee needed to prove by clear and satisfactory evidence
that the debtor, Midwest, made each transfer to the creditor, Cascade, with the

"actual intent to hinder, delay, or defraud any creditor." RCW 19.40.041(a)(1);
Douglas v. Hill, 148 Wn. App. 760, 766, 199 P.3d 493 (2009). The Trustee failed
to provide any evidence of actual intent. Accordingly, RCW 19.40.041(a)(1) did
not support his fraudulent transfer claim.

        With respect to "constructive fraud," the Trustee needed to prove that
Cascade's actions constituted constructive fraud. RCW 19.40.041 (a)(2)(i)(ii);

        5"[T]he question of reasonably equivalent value is determined by the 'value of the
consideration exchanged between the parties at the time ofthe conveyance or incurrence ofdebt
which is challenged.'" In re NextWave Pers. Commc'ns. Inc., 200 F.3d 43, 56 (2d Cir. 1999)
(quoting In re NextWave Pers. Commc'ns. Inc.. 235 B.R. 277, 290 (Bankr. S.D. N.Y. 1999)).
Therefore, Cascade's state ofinsolvency one year later is not helpful in determining whether
 Midwest received reasonably equivalent value at the time that it paid Cascade $4.3 million.

                                                13
No. 71063-0-1/14



RCW 19.40.051(a); Douglas. 148 Wn. App. at 768-69. The Trustee had two

possible methods of proving constructive fraud, both of which required the
Trustee to present substantial evidence in support of his claim. Sedwick, 73 Wn.
App. at 885. The first method required the Trustee to showeither (i) that
Midwest was engaged or was about to engage in a business or a transaction for
which its remaining assets were unreasonably small, or (ii) that Midwest intended
to incur, or believed or reasonably should have believed that it would incur, debts

beyond its ability to pay as they became due. RCW 19.40.041 (a)(2)(i)(ii). The
second method required the Trustee to show that Midwest was insolvent at the
time of the transfer or became insolvent as a result of the transfer. RCW

19.40.051(a).

        The Trustee did not establish constructive fraud by either method of proof.

As to the first, the Trustee offered no evidence either (i) that Midwest was
engaged or was about to engage in a business or a transaction for which its
remaining assets were unreasonably small, or (ii) that Midwest intended to incur,
or believed or reasonably should have believed that it would incur, debts beyond
its ability to pay as they became due. Accordingly, the Trustee failed to meet his
burden of proof.6


         6Although the Trustee attempts to make use of the second method, his efforts are also
 unsuccessful He contends that, because the Receiver argued to the trial court that Midwest was
 set up as Ponzi scheme—which, by definition, is an enterprise insolvent from its inception—there
 was substantial evidence in the record ofconstructive fraud. The Trustee's contention is
 unavailing The Trustee cites to statements made by the Receiver's counsel before the trial
 court a proceeding subsequent to the Receiver's Final Determination, meaning that the Receiver
 could not have seen, let alone relied on, the hearing transcript. Moreover, even if there was
 evidence before the Receiver to support such an assertion, the Trustee has failed to identify it,
 managing only to assert that it is telling that the Receiver never contended that Midwest was
 solvent or fully capitalized because he knew that was not the case. Such conjecture does not
 provide a basis for this court to conclude that the Receiver abused his discretion. To the
                                                  14
No. 71063-0-1/15




       The Trustee also contends that the trial court erred when it denied his

discovery motion. This is so, he asserts, because (1) he has a legal interest in

the estate, and (2) he demonstrated "a reasonable suspicion of negligence or

malfeasance." We disagree.

        "A trial court has wide discretion in ordering pretrial discovery; such orders

are reviewed for manifest abuse of discretion." Gillett v. Conner. 132 Wn. App.

818, 822, 133 P.3d 960 (2006). "A trial court abuses its discretion when its order

is manifestly unreasonable or based on untenable grounds" and it "necessarily

abuses its discretion if it applies the incorrect legal standard." Gillett, 132 Wn.

App. at 822.

        Insofar as the Trustee sought to discover evidence in the Receiver's

possession from the federal litigation relating to the Trustee's claim, the trial court
did not abuse its discretion by denying the Trustee's discovery motion. The

Receiver's role is more aptly characterized as a neutral arbiter than as a zealous

advocate. See Kueckelhan, 74 Wn.2d at 314-15. Fittingly, the statutory scheme

for administering proofs of claim requires claimants to produce evidence to

support their own claim; it does not, however, provide a process for obtaining
discovery from the Receiver. See RCW 48.31.310(1) ("the commissioner shall

contrary, it is apparent that the Receiver acted well within his discretion in concluding that the
Trustee failed to present substantial evidence that Midwest was insolvent at the time ofthe
transfer with Cascade.
          However, we do not base our ruling on the Trustee's unsuccessful insolvency argument.
The Trustee failed to make this argumentto the Receiver or to the trial court, and made itfor the
first time on appeal in his reply brief. Because this is not the proper manner in which to present
an argument on appeal, we decline to make it the basis for our ruling. Cowiche Canyon
Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992).



                                                  15
No. 71063-0-1/16



notify all persons who may have claims against such insurer and who have not

filed proper proofs thereof, to present the same to him or her"). Moreover, the

trial court recognized that the discovery sought was available to the Trustee from
other sources—including public sources, Midwest, or Midwest's counsel in the

federal litigation—and that the Trustee had considerable time and opportunity to
obtain this information through such sources.

       Nevertheless, the Trustee invokes RCW 48.99.017(3), a provision of the

Uniform Insurers Liquidation Act, and asserts that this provision required the
superior court to conduct an in-camera review of the documents that the Trustee
requested before determining whether to permit discovery. The Trustee invoked
this provision in an effort to establish that the Receiver was mismanaging the
receivership. The pertinent statutory language is quoted below.
       Any person who can demonstrate a legal interest in the
       receivership estate or a reasonable suspicion of negligence or
       malfeasance by the commissioner related to an insurer receivership
       may file a motion in the receivership matter to allow inspection of
       private company information or documents not subject to public
       disclosure under subsection (1) of this section. The court shall
       conduct an in-camera review after notifying the commissioner and
       every party that produced the information. The court may order the
       commissioner to allow the petitioner to have access to the
       information, provided the petitioner maintains the confidentiality of
       the information.

 RCW 48.99.017(3) (emphasis added). For several reasons, this provision does
 not provide a basis for the Trustee to obtain discovery.
        Initially, the Trustee cannot demonstrate a legal interest in the receivership
 estate because hefailed to prove any valid claim against Cascade. Accordingly,
 that statutory language does not provide a basis for requiring the trial court to

                                          16
No. 71063-0-1/17



conduct an in-camera review. In addition, the Trustee did not demonstrate a

"reasonable suspicion of negligence or malfeasance" by the Receiver. The

Trustee raises a number of arguments which, he contends, demonstrate the

requisite reasonable suspicion. Whether considered individually or collectively,

they are unavailing.

       As to these arguments, the Trustee first asserts that there was a lack of

evidence supporting the Receiver's assertion that Midwest actually received

reasonably equivalent value for payments to Cascade. However, as previously

explained, the trial court did not abuse its discretion in confirming the Receiver's
determination that Midwest did receive reasonably equivalent value from

Cascade. Second, the trustee avers that the Receiver falsely asserted that the

federal court litigation established G&W was merely a front for Midwest.
However, as previously explained, it was not incumbent upon the Receiver to
anchor his determination to a jury verdict or a court order to conclude that G&W
was a front for Midwest. Third, the Trustee contends that the Receiver

repeatedly changed his basis for denying the Trustee's claim. However, the
Receiver determined, and the trial court confirmed, that the Receiver's

classification of the Trustee's claim as a late-filed claim that was unlikely to be

recoverable (the gravamen ofthis claim) was done to allow the Trustee to fully
evaluate whether to continue to expend legal resources to pursue a likely

unrecoverable claim—not as a basis for denying the Trustee's claim. Fourth, the

Trustee argues that the Receiver wasted estate assets attempting to justify
denying the Trustee's claim "at all costs." However, the Trustee has failed to

                                          17
No. 71063-0-1/18



provide persuasive evidence that the Receiver was trying to "win at all costs."

Fifth and finally, the Trustee claims that the Receiver wasted $2.5 million in

estate resources pursuing an uncollectible judgment against Midwest in the

federal court litigation. However, the Trustee second-guessing the pursuit of

these claims due to current issues of collectability—eight years after the case

was filed—does not provide a sufficient basis for us to conclude that the Receiver

acted improperly such that an in-camera review of evidence in the Receiver's

possession was warranted. Ultimately, the trial court did not abuse its discretion

when it denied the Trustee's motion for discovery.

       Affirmed.




We concur:




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                                         18
