      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTOtin

                                )
 NINA TODOROVIC,                )                     No. 75274-0-1
                                )                    (consolidated with
                 Appellant,     )                      No. 75275-8-1)
                                )
           V.                   )                     DIVISION ONE
                                )
 AMERIPRISE AUTO AND HOME       )                     UNPUBLISHED
 INSURANCE; IDS PROPERTY        )
 CASUALTY INSURANCE COMPANY; )                        FILED: October 9, 2017
 and DEGRAZIA'S AUTO BODY SHOP, )
                                )
                 Respondents.   )
                                )


      Cox, J. — Nina Todorovic appeals the trial court's orders granting summary

judgment to Ameriprise Auto and Home Insurance and IDS Property Casualty

Insurance Company (together, "IDS") and Degrazia's Auto Body Shop and

dismissing her claims with prejudice. Because there are no genuine issues of        -

material fact and the moving parties are entitled to judgment as a matter of law,

we affirm.

      On October 25, 2012, Todorovic was involved in a motor vehicle accident

and submitted a claim to her auto insurer, IDS. Thoroughbred Body Shop

repaired Todorovic's truck and IDS paid them over $9,000. The repairs were

insufficient, and Todorovic took the truck to DeGrazia's for additional work.
No. 75274-0-1 (consolidated with No. 75275-8-1)/2


DeGrazia's did almost $2,000 of additional repairs but then discovered that the

truck needed a new frame that would cost $11,210.08. Instead of authorizing

payment for the new frame, IDS declared the truck a total loss and issued

payments to the lien holder and Todorovic for the value of the car. Todorovic

accepted IDS's payment and deposited the check. Even though she was paid for

the loss of her truck, Todorovic was dissatisfied and wanted her truck back. IDS

refused unless Todorovic reimbursed it for the completed repairs.

       On October 9, 2015, Todorovic commenced an action against IDS and

DeGrazia's, alleging bad faith and unfair practices.

       IDS moved for summary judgment. It claimed there were no genuine

issues of fact because IDS had paid Todorovic for the value of her car in

accordance with the terms of her policy. To the extent that she was claiming bad

faith, IDS argued that Todorovic failed to comply with the notice provisions of the

Insurance Fair Conduct Act by providing written notice of her claim.1 IDS also

claimed that Todorovic failed to identify any action that constituted an

unreasonable denial of benefits or coverage. In support of its motion, IDS

attached the declarations of Clint Thute and Kendra R. Comeau and exhibits

including the insurance policy, the letter settling Todorovic's claim for the value of

the truck, and a copy of the check that Todorovic had cashed in satisfaction of

the claim.

       Todorovic failed to file a response or present any evidence in opposition to

the motion. The trial court granted IDS's motion.


       1 See RCW 48.30.015(8)(a).


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       Todorovic then filed an amended complaint. She claimed that IDS and

DeGrazia's made a "false claim" as to the state of her truck and that she was

"swindled" out of her truck.

       IDS again moved for summary judgment based on res judicata and the

absence of any competent evidence supporting Todorovic's claims. It attached a

declaration of Kendra Comeau and a "true and correct" copy of a letter from

Todorovic to the insurance commissioner admitting that she consulted counsel

before accepting IDS's payment for the value of her truck.

       Todorovic again failed to file a response or any evidence opposing the

motion. The trial court granted summary judgment on the amended complaint.

       On the same day she filed the amended complaint in her original action,

Todorovic also filed a second lawsuit under a new case number, 16-2-02399-0

("2016 cause"). The documents comprising Todorovic's amended complaint are

identical to the documents comprising her complaint in the 2016 cause.

       IDS moved for summary judgment based on res judicata. In support of

the motion, IDS attached the declaration of Lesli S. Wood and a transcript from

the hearing on its earlier motion for summary judgment on the amended

complaint.

       Todorovic again failed to respond, and the trial court entered an order

granting summary judgment and dismissing all claims against IDS.

       On February 21, 2013, before IDS had paid DeGrazia's, Todorovic came

to DeGrazia's and insisted on taking the truck. Tom DeGrazia, the owner of

DeGrazia's, told her that she could not take the truck until she both signed a



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release and DeGrazia's received payment for the repairs. Todorovic started to

drive away with the truck, but when she got out about a block away, DeGrazia

got into the truck and started to drive it back to the garage. Todorovic opened

the truck door and a struggle ensued.

       In her amended complaint, Todorovic alleged that DeGrazia punched,

kicked and elbowed her while trying to retrieve the truck and that DeGrazia's had •

conspired with IDS to defraud her of her truck.

       DeGrazia moved for summary judgment on the amended complaint based

on the statute of limitations.2 Todorovic again failed to file a response.

DeGrazia's filed a combined reply in support of its motion and a response to join

in IDS's motion for summary judgment on the 2016 cause.

       The trial court granted DeGrazia's motion and dismissed all claims against

it. In the minute order addressing both IDS's motion on the 2016 cause and

DeGrazia's motion on the amended complaint, the trial court granted DeGrazia's

joinder in IDS's motion, concluded that there was "no merit" going forward, and

that the claims in both cases should be dismissed for the reasons set forth in the

pleadings.

       Todorovic appeals.

                             DISMISSAL OF CLAIMS

       Todorovic argues that the trial court erred in granting summary judgment

and dismissing her claims. We disagree.




       2 See   RCW 4.16.100(1).


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      "[S]ummary judgment is appropriate where there is 'no genuine issue as to

any material fact and.. . the moving party is entitled to a judgment as a matter of

law.m3 Although the evidence is viewed in the light most favorable to the

nonmoving party, if that party is the plaintiff and it fails to make a factual showing

sufficient to establish an element essential to its case, summary judgment is

warranted.4 "[TIhe nonmoving party cannot rely on the allegations made in its

pleadings" because "CR 56(e) states that the response, `by affidavits or as

otherwise provided in this rule, must set forth specific facts showing that there is

a genuine issue for trial.'"5 "Conclusory statements and speculation will not

preclude a grant of summary judgment."6 Finally, "[o]n review of an order

granting or denying a motion for summary judgment the appellate court will

consider only [the] evidence and issues called to the attention of the trial court."7

       This court reviews de novo a trial court's summary judgment order.5

                                         IDS

       Todorovic argues that the trial court erred in granting summary judgment -

and dismissing her claims against IDS. We disagree.

       In both its first and second summary judgment motions, IDS argued that

Todorovic could not show bad faith or any action constituting an unreasonable



       3Elcon Const., Inc. v. E. Washington Univ.,174 Wn.2d 157, 164-65, 273
P.3d 965(2012)(quoting CR 56(c)).
      4 Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182
(1989).
      5 jos_1. at 225-26 (quoting CR 56(c)).
      6 Elcon Const., Inc., 174 Wn.2d at 169.
      7 RAP 9.12.
      8 Elcon Const., Inc., 174 Wn.2d at 164.



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denial of benefits or claims. IDS also argued that Todorovic had never provided

the requisite statutory notice for asserting a claim under the Insurance Fair

Conduct Act.

       Todorovic did not file a response or submit evidence in opposition to IDS's.

motions. Thus, the trial court did not err in granting summary judgment to IDS on

the complaint and amended complaint.9

       Todorovic argues that the trial court erred in dismissing her claims of fraud

asserted in the amended complaint because IDS did not address those claims

until its reply brief in support of summary judgment. We disagree.

       First, Todorovic did not raise this contention to the trial court so we need

not address it.1° Todorovic cites to White v. Kent Med. Ctr., Inc., P.S., in support

of her contention, but in that case, the non-movant plaintiff provided a timely

response to the motion for summary judgment and alerted the trial court that the

defendant had belatedly raised an issue in its reply brief." Here, Todorovic

failed to do either.

       Second, the trial court gave Todorovic an opportunity to respond at the

summary judgment hearing and she failed to raise a material issue of fact on her

claim of fraud.12 Because she was given an opportunity to explain to the trial




       9 Young, 112 Wn.2d at 225.
      19 See Dang v. Ehredt, 95 Wn. App. 670, 677, 977 P.2d 29 (1999).

      11 61 Wn. App. 163, 167-68, 810 P.2d 4(1991).

      12 See Union Bank, N.A. v. Blanchard, 194 Wn. App. 340, 359, 378 P.3d
191 (2016).
No. 75274-0-1 (consolidated with No. 75275-8-1)/7


court any evidence she might have in support of her fraud claim and failed to do

so, she was in no way prejudiced by IDS's failure to specifically seek dismissal of

the fraud claim in its motion for summary judgment on the amended complaint.

       Finally, the trial court properly granted summary judgment and dismissed

the complaint in the 2016 cause because it was identical to the amended

complaint. Summary judgment on the amended complaint was a final judgment

on the merits and thus the doctrine of res judicata prohibits Todorovic from

relitigating the issues raised in the amended complaint.13

                                    DeGrazia's

       Todorovic argues that the trial court erred in dismissing the claims against

DeGrazia's. We disagree.

       After the trial court dismissed any insurance bad faith or fraud claims

against IDS, only the assault claim remained viable against DeGrazia's. The

alleged assault occurred in February 2013, and Todorovic did not file her first

complaint until October 2015. DeGrazia's moved for summary judgment arguing

that the assault claim was barred by the two year statute of limitations.

       Todorovic failed to introduce any evidence to rebut DeGrazia's motion.

She sent materials to the trial court on April 27 2016, but those materials were

not filed until August 1, 2016. Moreover, those materials did not rebut

DeGrazia's showing that the assault claim was barred by the statute of

limitations.




       13   Ensley v. Pitcher, 152 Wn. App. 891, 899, 222 P.3d 99(2009).


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       Thus, the trial court did not err in granting summary judgment to

DeGrazia's and dismissing the claims against it.

       Todorovic raises a number of other issues, including arguing that the trial•

court erred because her assault claim included a claim for intentional infliction of

emotional distress, and arguing that IDS improperly delayed in assessing the

damage to her vehicle. She did not raise these arguments in the trial court so we

need not consider them.14

       We affirm the orders granting summary judgment.



                                                          evx
WE CONCUR:




       14   Dang, 95 Wn. App. at 677.


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