                                                         ZQISJUN-8 An 9:1*5




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TRINITY UNIVERSAL INSURANCE                     No. 72106-2-
COMPANY OF KANSAS,
                                                DIVISION ONE
                        Appellant,

                v.

                                                UNPUBLISHED OPINION
THE OHIO CASUALTY INSURANCE
COMPANY,

                        Respondent.             FILED: June 8, 2015

      Schindler, J. — This is the second appeal in this case. Trinity Universal

Insurance Company of Kansas (Trinity) sued Ohio Casualty Insurance Company (Ohio)

for subrogation, equitable contribution, and bad faith under the Washington Consumer

Protection Act (CPA), chapter 19.86 RCW, and under the Insurance Fair Conduct Act

(IFCA), chapter 48.30 RCW. The court entered an "Order of Default and Judgment"

against Ohio in the amount of $761,298.07, fees and costs of $2,972.89, and "interest at

the tort rate of 2.23% per annum until satisfied." The court denied the motion to vacate

the default judgment.

       In Trinity Universal Insurance Co. of Kansas v. Ohio Casualty Insurance Co., 176

Wn. App. 185, 200-03, 312 P.3d 976 (2013), we held that because the language of the

insurance policy did not assign the CPA or IFCA claims of the insured to the insurer,
No. 72106-2-1/2



Trinity had no right to assert those claims. But we held Trinity was entitled to a

judgment based on equitable subrogation and contribution for the amount paid to

defend and settle the personal injury claim. Trinity. 176 Wn. App. at 205. We

concluded "Trinity's claims against Ohio were not based on an assignment or

contractual subrogation of rights" and held "Trinity's claim arose from its own equitable

subrogation rights as the paying insurer, not from the rights of the insured." Trinity. 176

Wn. App. at 209. We reversed in part, affirmed in part, and remanded "to correct the

judgment." Trinity. 176 Wn. App. at 209.

       On remand, the court rejected Trinity's request to award an interest rate of 12

percent for a contract action and prejudgment interest. On appeal, Trinity argues the

court erred in denying its motion to award an interest rate of 12 percent. We disagree,

and affirm entry of the amended judgment.

       The facts are set forth in our previous decision and will only be repeated as

necessary. Ohio insured general contractor Millennium Building Company (Millennium).

Trinity insured subcontractor Cascade Construction Company (Cascade). A Cascade

employee was injured while working on the construction project. The injured worker

sued Millennium.


       Ohio tendered the defense to Trinity asserting Millennium was an "additional

insured" under Trinity's insurance contract with Cascade. Trinity accepted tender but

demanded that Ohio participate in the defense as a coprimary insurer. Ohio refused to

participate. Trinity settled the injured worker's lawsuit for $225,000 in exchange for a

full and complete release of all claims against Millennium and Cascade.
No. 72106-2-1/3


       Trinity sued Ohio for subrogation, equitable contribution, and insurer bad faith

under the CPA and IFCA. Trinity requested an award of damages for Ohio's breach of

the duty to defend and indemnify Millennium, treble damages under the CPA and IFCA,

and an award of attorney fees and costs. Ohio did not file a notice of appearance or

answer. Trinity obtained an order of default and a judgment against Ohio in the amount

of $764,270.96 and interest "at the tort rate of 2.23% per annum until satisfied."

Approximately a year later, Trinity sought to execute on the judgment against Ohio.

Ohio filed a motion to vacate the order of default and set aside the judgment. The court

denied the motion to vacate the default judgment.

       On appeal, we held Trinity had a right to equitable subrogation with respect to the

defense and indemnification costs and a right of contribution against Ohio as a

coprimary insurer. Trinity. 176 Wn. App. at 199-205. We reversed the award of treble

damages under the CPA and IFCA. Trinity. 176 Wn. App. at 205. We held that based

on the language of the insurance contract and in the absence of an express

assignment, Trinity did not have standing to assert the statutory claims under the CPA

and IFCA. Trinity, 176 Wn. App. at 202-03. We concluded that although equitable

subrogation "entitles a paying primary insurer to seek reimbursement for losses paid,"

equitable subrogation "does not allow the insurer to assert an insured's statutory rights

without express agreement." Trinity. 176 Wn. App. at 205. Accordingly, because

"Trinity's claims against Ohio were not based on an assignment or contractual

subrogation of rights" and "Trinity's claim arose from its own equitable subrogation

rights as the paying insurer," we held Trinity was not entitled to attorney fees under

Olympic Steamship Co. v. Centennial Insurance Co.. 117 Wn.2d 37, 52, 811 P.2d 673
No. 72106-2-1/4



(1991). Trinity. 176 Wn. App. at 209. We affirmed in part, reversed in part, and

remanded to "correct the judgment." Trinity. 176 Wn. App. at 209.

        On remand, Trinity filed a motion to award prejudgment and postjudgment

interest at the rate of 12 percent for a contract action rather than the 2.23 percent for a

tort action. The court denied the motion. "The trial court's default interest order was not

disturbed on appeal and no basis exists to modify that portion of the default judgment

and order." The court entered an amended judgment and ordered the court clerk to

enter satisfaction of judgment.1

        On appeal, Trinity contends the court erred in denying its motion to award an

interest rate of 12 percent for a contract action under RCW 4.56.110 rather than the

2.23 percent interest rate for a tort action.

        RCW 4.56.110 sets forth the judgment interest rate for "(1) breach of contract

where an interest rate is specified, (2) child support, (3) tort claims, and (4) all other

claims." Woo v. Fireman's Fund Ins. Co.. 150 Wn. App. 158, 165, 208 P.3d 557 (2009).

Here, there is no dispute that under RCW 4.56.110, the interest rate for a tort action is

2.23 percent and the interest rate for a contract action would be 12 percent.

        Trinity argues that because our decision in the previous appeal "stripped the

judgment of all tortious elements," the 12 percent interest rate for contract claims

applies. We disagree.

        In Trinity, we held Trinity did not have a right under the insurance contract to

assert the statutory bad faith claims of the insured but was entitled to entry of judgment

against Ohio on the grounds of equitable subrogation and contribution. Trinity. 176 Wn.

          1Before Trinity filed the motion to increase the judgment interest rate to 12 percent, Ohio paid
Trinity the full amount of the principal judgmentas amended plus interest calculated at the statutory rate
of 2.23 percent as set forth in the default judgment.
No. 72106-2-1/5


App. at 203. "Trinity paid a personal injury claim under its liability coverage. Trinity

recovered a judgment on those losses from Ohio based on subrogation of that claim

and equitable apportionment, which we affirm in this opinion." Trinity. 176 Wn. App. at

203.2

        Subrogation is an equitable doctrine that imposes "ultimate responsibility for a

wrong or loss on the party who, in equity and good conscience, ought to bear it."

Mahler v. Szucs. 135 Wn.2d 398, 411, 957 P.2d 632 (1998). In the insurance context,

"subrogation creates in the insurer, by contract or equity, a right to be reimbursed" for

benefits paid pursuant to its policy with the insured. Mahler. 135 Wn.2d at 417, 428.

Under the doctrine of equitable subrogation, the "right to reimbursement" arises by

operation of law and not by contract. Mahler, 135 Wn.2d at 412.

        The related doctrine of equitable contribution establishes a legal right to

reimbursement that entitles "one party to recover from another party for a common

liability." Mut. of Enumclaw Ins. Co. v. USF Ins. Co.. 164 Wn.2d411.419, 191 P.3d 866
(2008). In the insurance context, equitable contribution enables a paying insurer "to

recover from another insurer where both are independently obligated to indemnify or

defend the same loss." Mut. of Enumclaw. 164 Wn.2d at 419. Because the reciprocal

rights and obligations of coprimary insurers " 'do not arise out ofcontract,'" the paying
insurer's right to contribution "is a right of the insurer and is independent ofthe rights of
the insured." Mut. of Enumclaw, 164 Wn.2d at 419-20 (quoting Signal Cos. v. Harbor

Ins. Co.. 27 Cal.3d 359, 369, 612 P.2d 889 (1980)).

        In Trinity, we clearly held that "Trinity's claims against Ohio were not based on an

assignment or contractual subrogation of rights by Millennium. . . . Rather, Trinity's
        2 Emphasis added.
No. 72106-2-1/6


claim arose from its own equitable subrogation rights as the paying insurer, not from the

rights of the insured." Trinity. 176 Wn. App. at 209.

      We affirm entry of the amended judgment in the amount of $245,432.69 and

interest of $19,695.02 for a total judgment of $264,626.19.




                                                 K,Q.t.AVt&9^ ,
WE CONCUR:




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