               IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


EASTSIDE PHYSICAL THERAPY, INC.,                                                           )   No. 78134-1-I
P.S., a Washington corporation, and                                                        )
SUMMIT PHYSICAL THERAPY, LLC, a                                                            )   DIVISION ONE
Washington limited liability company,                                                      )
                                                                                           )   UNPUBLISHED OPINION
                                                      Appellants,                          )
                           v.
                                                                                           )
UNITED SERVICES AUTOMOBILE                                                                 )
ASSOCIATION and USAA CASUALTY                                                              )
INSURANCE COMPANY,
                                                                                           )
                                                       Respondents.                        )   FILED: September 30, 2019
________________________________________________________________________________________   )

                ANDRUS, J.                —      Eastside Physical Therapy, Inc. and Summit Physical

  Therapy, LLC appeal the dismissal of their Consumer Protection Act (CPA) claims

  against United States Automobile Association and USAA Casualty Insurance

  Company (collectively, “USAA”), insurers who provided PIP coverage to Eastside

  and Summit patients. We affirm the dismissal of Summit’s claim but reverse the

  dismissal of Eastside’s claim and remand in light of this court’s decision in

  Folweiler Chiropractic, P.S. v. American Family Insurance Company, 5 Wn. App.

  2d 829, 429 P.3d 813 (2018).

                                                                             FACTS

                Eastside and Summit are health care providers that treated patients with

  Personal Injury Protection (PIP) coverage under auto policies issued or
No. 78134-1-1/2

underwritten by USAA. One of USAA’s insureds, “U,”1 sustained physical injuries

in a December 2016 accident and received treatment from Eastside.

        U purchased $10,000 in PIP coverage. Their policy provided:

        We will pay the following PIP benefits to or on behalf of each
        covered person because of [bodily injury] caused by an accident
        arising out of the ownership, maintenance or use of an auto:

                     1. Medical and hospital benefits.


        We or someone on our behalf will review, by audit or otherwise,
        claims for benefits under this coverage to determine if the charges
        are medical payment fees for medically necessary and
        appropriate medical services.        A provider of medical services
                                              .   .   .


            may charge more than the amount we determine to be medical
        payment fees and reasonable expenses, but such additional
        charges are not covered.

The policy defined “medical payment fee” as “an amount, as determined by us.

that we will pay for charges made by a licensed hospital, licensed physician, or

other licensed medical provider for medically necessary and appropriate

medical services.” It went on to provide:

               The amount that we will pay will be one of the following:



                       4. The lesser of the following:

                               a. The actual amount billed; or

                               b. A reasonable fee for the service provided. A
                               fee is reasonable if it falls within the range of
                               fees generally charged for that service in the
                               geographic area.

        Eastside submitted three bills to USAA on behalf of U for services it


        The parties have maintained the patients’ anonymity by designating them by the initials
“U.” We do the same here.
                                             -2-
No. 78134-1 -1/3

provided in January and February 2017. Each bill charged $134.00 for a particular

procedure identified as “Ther px 1/> areas each 15 mins neuromusc.” USAA

initially reimbursed Eastside $1 15.76 for this procedure on the first two bills, and

$122.48 for that same procedure on the third bill.          On an “Explanation of

Reimbursement,” or “EOR,” USAA identified a reason code, called “RF_3.” “RF_3”

meant that “the charge exceeds a reasonable amount for the service provided.”

USAA notified Eastside that if it did not accept the recommended amount as

payment in full, then it could submit additional documentation or an explanation to

support the reasonableness of the charge.           At Eastside’s request, USAA

reconsidered the bills and on July 19, 2017, paid the charges in the second and

third bills in full.

        As of August 28, 2017, USAA had paid out the full amount of U’s $10,000

PIP coverage, with $5,127.76 being paid to Eastside. USAA sent Eastside a letter

notifying it that U’s PIP limits had been exhausted.

         USAA uses a database, known as the Milliman database, to determine

reimbursement rates on provider bills. The parties have identified the use of this

database as the “RF Methodology,” or Reasonable Fee Methodology. In an earlier

lawsuit against USAA, a court order approving a class action settlement described

the RF Methodology:

               The “RF Methodology” in Washington currently involves the
        use of the 80th percentile of the Milliman, Inc. (“Milliman”) database
        of charges for Washington providers (and the Milliman database in
        turn relies on charge data from the U.S. Department of Health and
        Human Services/Centers for Medicare and Medicaid Services (the
        “CMS Data”)), with adjustments for inflation, if appropriate, and
        application of a $10/5% “rounding rule” (i.e., if the reasonable fee
        recommended by the Milliman database is less than the greater of
        $10 or 5% of the provider’s billed amount, then the USAA Entities will
                                        -3-
No. 78134-1 -114

       pay the provider’s billed amount in full).

The 80th percentile data is not organized by a provider’s years of experience,

background or qualifications; it merely compares the amount billed against what

other providers in the same geographical area charge for the same medical billing

code. If USAA has an assignment of benefit from its insured, it pays the provider

directly rather than reimbursing the insured. Eastside and Summit billed USAA

directly for the treatment it provided to USAA insureds.

       In October 2017, Eastside brought this class action against USAA in King

County Superior Court, alleging that its reimbursement practices violated the CPA.

Summit joined as a co-plaintiff in December 2017. Eastside and Summit alleged

that over a period from May 30, 2015 to October 13, 2017, USAA violated

RCW 48.22.005(7) by failing to pay all reasonable medical expenses and violated

WAC 284-30-330 by failing to implement a reasonable procedure for investigating

PIP insurance claims before it refused to pay them in full. Eastside and Summit

challenged USAA’s use of the RE Methodology, contending it is a systematic

failure to investigate the reasonableness of PIP claims.   Eastside and Summit

sought damages on behalf of themselves and a class of 1100 similarly situated

Washington health care providers. The claimed injuries included loss of income

from the underpayment of bills, delayed payment of bills, administrative costs to

“address USAA’s wrongful conduct,” and out-of-pocket expenses.

      In January 2018, USAA filed a CR 12(b)(6) motion to dismiss the complaint,

arguing that the final settlement order in MyS~ine P.S. v. USAA Casualty

Insurance Company, no. 12-2-32635-5 SEA (Wash. Super. Ct. Sept. 11, 2015),

explicitly allowed USAA to continue using the RE Methodology to determine
                                        -4-
No. 78134-1-1/5

reimbursement to providers. USAA further argued that Eastside’s and Summit’s

claimed damages were not compensable injuries under the CPA.

       USAA simultaneously filed a motion for summary judgment. USAA argued

that Eastside could not pursue a CPA claim for nonpayment based on its patient

U   because U’s PIP policy limits had been exhausted.          USAA claimed that

Summit, as a MySpine class member, was barred from bringing a suit to challenge

USAA’s use of the RF Methodology for five years following the MySpine final

settlement order.

       Eastside and Summit moved to transfer the lawsuit from the assigned judge

to Judge Theresa Doyle, who had presided over and entered the final settlement

order in MySpine. Eastside and Summit argued that Judge Doyle had “expressly

reserved jurisdiction over that settlement to resolve any issues relating to the

enforcement, and interpretation of the terms of the settlement and Final Approval

Order.” The chief civil judge denied the motion to transfer.

       In February 2018, the trial court dismissed Summit’s claim based on the

MySpine settlement, and dismissed Eastside’s claim, concluding that the PIP

policy exhaustion barred the claim and, alternatively, that Eastside had not

sustained a cognizable CPA injury.      Eastside and Summit appeal the orders

dismissing their claims and denying transfer of the case to Judge Doyle.

                                    ANALYSIS

                              Eastside’s CPA Claim

      Eastside’s appeal raises three issues: first, whether the exhaustion of U’s

PIP benefits bar Eastside’s CPA claim; second, whether Eastside presented

evidence of cognizable CPA injuries to business or property; and third, whether
                                       -5-
No. 78134-1-1/6

Eastside has standing to challenge USAA’s use of the RF Methodology as either

a per se violation of the CPA or an unfair practice under Folweiler.

       We review an order of summary judgment do novo, performing the same

inquiry as the trial court and considering the facts and inferences in a light most

favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300,

45 P.3d 1068 (2002). Summary judgment is appropriate if the pleadings, affidavits,

and depositions establish that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law. j~ç~ at 300-01.

       Washington’s CPA makes unlawful “[ujnfair methods of competition and

unfair or deceptive acts or practices in the conduct of any trade or commerce.”

RCW 19.86.020. To establish a CPA violation, a challenger must establish: (1) an

unfair or deceptive act or practice; (2) in trade or commerce; (3) a sufficient

showing of public interest; (4) injury to business or property; and (5) a causal link

between the unfair acts and injury. Nordstrom, Inc. v. Tamiourlos, 107 Wn.2d

735, 739, 733 P.2d 208 (1987).

   (1) PIP Policy Exhaustion

      The trial court held that Eastside could not recover from USAA because U’s

PIP coverage limits were exhausted before Eastside filed the lawsuit.          USAA

argues that because coverage limits were exhausted, an insured cannot recover

any additional funds from USAA, citing to Does v. Allstate Ins. Co., 933 F. Supp.

2d 1299, 1306 (W.D. Wash. 2013), Sadlerv. State Farm Mut. Auto Ins. Co., 2008

WL 4371661 (W.D. Wash. 2008), Kabrich v. Allstate Proii & Cas. Ins. Co., 2014

WL 3925493 (E.D. Wash. 2014), and lsilon Sys., Inc. v. Twin City Fire Ins. Co.,


                                        -6-
 No. 78134-1-1/7

 2012 WL 1202331 (W.D. Wash. 2012). It argues that if U cannot recover CPA

 damages, Eastside cannot do so either.

        None of these cases, however, preclude an insured from suing an insurer

for CPA damages just because the insurer has paid out policy limits. In Dees, an

 insured sued its PIP carrier for breach of contract, breach of the duty of good faith

 and fair dealing, CPA violations, and violations of the Insurance Fair Conduct Act.

On summary judgment, the insurer sought a ruling that its maximum liability to

 Dees under a breach of contract theory was the maximum PIP benefit of $35,000

and UIM benefit of $100,000. 933 F. Supp. 2d at 1306. Dees agreed with this

proposition, and the court granted the insurer’s partial summary judgment,

concluding that “[i]f Allstate is liable for breach of contract, its damages for that

~breach are limited to [the unpaid portion of the PIP and UIM policies].” ki. But that

ruling was limited to the breach of contract claim, not Dees’s CPA claim.

       Sadler involved an injured insured who sued her PIP insurer under various

legal theories, including breach of contract and the’CPA, contending the insurer’s

delay in processing her claim for PIP coverage led to an exacerbation of her

personal injuries. 2008 WL 4371661 at *1, *6. The court dismissed Sadler’s

breach of contract claim because State Farm had paid out its policy limits, ki. at
*7 but the court dismissed the CPA claim, not because the policy limits had been

exhausted, but because the court determined that the plaintiff’s damages for

personal injuries were not a cognizable injury under the CPA, jçj~ at *9

       In Kabrich, a plaintiff sued her insurer for breach of a homeowner’s policy

and for bad faith denial of benefits under that policy. 2014 WL 3925493 at *1. The

insurer had paid out policy limits for personal property destroyed during a freezing
                                         -7-
No. 78134-1-1/8

event. Id. at *1~2. The court dismissed Kabrich’s breach of contract claim because

“[am   insured may only recover damages up to the policy limits in an insurance

breach of contract action.” Id. at *7           The court also dismissed her CPA claim

because she had “produced no evidence suggesting that she was underpaid by

Allstate.” j~ at *1 Q•2 The dismissal of the CPA claim turned on the sufficiency of

the plaintiff’s proof, not the exhaustion of policy limits.

        Finally, in lsilon, an insured corporation sued its liability insurer for breach

of contract, bad faith denial of coverage, and CPA and IFCA violations after the

insurer initially denied to provide a defense to the company’s CEO for alleged

securities fraud. 2012 WL 1202331 at *3 The court dismissed Isilon’s CPA claim

because the insurer had paid the full policy limits to Isilon within the 90-day

contractual window for the payment of claims, and the additional damages Isilon

sought had not been properly pleaded or were otherwise not recoverable under

the CPA. j~ It did not hold that exhaustion of policy limits precluded Isilon from

pursuing a CPA recovery.

        We find Van Nov v. State Farm Mut. Auto. Ins. Co. to be more analogous

to this case. There, this court held that a class of State Farm PIP policyholders

could pursue contract and bad faith claims against their first party insurer for

retroactively disallowing claims for medical expenses. 98 Wn. App. 487, 983 P.2d

1129 (1999). This court rejected State Farm’s argument that it could not be liable

for damages in excess of the benefits due under the policy. jç~ at 497. The court



         2     Kabrich court, however, noted that successful claimants showing actionable bad faith
in third party insurance context can receive awards in excess of policy limits under Coventry
Associates v. American States Ins. Co., 136 Wn.2d 269, 961 P.2d 933 (1998). Id. at *8 fn.5.
                                               -8-
No. 78134-1-1/9

held that the plaintiffs could pursue their claim for damages based on the allegation

that the delay in disallowing medical expenses caused them to incur personal

liability for bills they would have otherwise not incurred. ki.

       Because Eastside’s request for payment predated the exhaustion of U’s

policy limits by several months, and the conduct that arguably violated the CPA

similarly predated exhaustion, we conclude that policy limit’s exhaustion does not

bar Eastside’s CPA claim under Van Nov.

       USAA argues that Eastside’s admission in the complaint that it was

excluding reductions made to bills “submitted on PIP claims with exhausted policy

limits” is a judicial admission that we should deem conclusively binding on

Eastside. Eastside, however, explained that this statement was meant to exclude

bills submitted to USAA after a policy limit had been reached. A judicial admission

is “[a] formal admission[] in [a] pleading which [has] the effect of withdrawing a fact

from issue and dispensing wholly with the need for proof of the fact.” American

Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (quoting In re

Fordson Encl’Q Corp., 25 B.R. 506, 509 (Bankr. E.D. Mich. 1982)). Eastside’s

statement in its complaint is not a statement of fact, but a description of its claim,

and an ambiguous one at that. We thus reject USAA’s argument that the judicial

admission doctrine applies here.

       Because Eastside’s CPA claim accrued before U’s policy limits were

exhausted, the subsequent payout of the full $10,000 in PIP benefits does not bar

the claim as a matter of law. The trial court erred in concluding otherwise.




                                         -9-
No. 781 34-1-1/10

   (2) Cognizable CPA Inlury

          The trial court also concluded that, as an alternative basis for dismissing

Eastside’s CPA claim, Eastside failed to establish a cognizable CPA injury.

RCW 19.86.090 provides “[a]ny person who is injured in his or her business or

property” by a violation of the CPA may bring an action to enjoin further violations

or to recover “actual damages sustained by him or her.” No monetary damages

need be proven and non-quantifiable injuries will suffice. Nordstrom, 107 Wn.2d

at 739; see also Folweiler, 5 Wn. App. at 839. The injury requirement is met “upon

proof the plaintiff’s property interest or money is diminished because of the

unlawful conduct even if the expenses caused by the statutory violation are

minimal.” Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 57, 204 P.3d 885

(2009) (internal quotation marks omitted) (quoting Mason v. Mortgage Am., Inc.,

114 Wn.2d 842, 854, 792 P.2d 142 (1990)). ‘[A] mere delay in use of property or

receiving payment is an injury under the CPA.” Folweiler, 5 Wn. App. 2d. at 839;

see also Sorrel v. Eagle Healthcare, Inc., 110 Wn. App. 290, 298, 38 P.3d 1024

(2002).

          Eastside identified two injuries—the four- or five-month delay in being paid

in full on the second and third invoices and the underpayment on the first invoice.

In Folweiler, this court recently held that delay in reimbursement by an insurer is a

cognizable CPA injury:

      Foiweiler pleaded that it suffered injury: “[d]uring the period from July
      8, 2012 to July 8, 2016, Folweiler suffered injury and damage to its
      business as a direct and proximate result of American Family’s
      practice of making P0041 reductions to Washington provider bills in
      the manner described above.” The complaint further alleged that
      class members “sustained injury to their business caused by
      American Family’s practice in the form of reduced payments, delay
                                         -10-
No. 78134-1-I/li

       in payment of reasonable medical expenses, out of pocket
       administrative costs or added expenses, [or] business interruption or
       inconvenience.” Foiweiler sufficiently pleaded injury under the CPA.

Folweiler, 5 Wn. App. 2d. at 839-40 (emphasis added). This holding was based

on Sorrel v. Eagle Healthcare, Inc., in which the court held that a delay in receiving

a refund to which the plaintiff was entitled constituted an injury to property under

the CPA. 110 Wn. App. at 298. Both Folweiler and Sorrel support Eastside here.

The trial court erred in concluding that a delay in payment is not a valid CPA injury.

       USAA argues that an alleged underpayment of a medical bill is not

recoverable under the CPA under Ambach v. French, 167 Wn.2d 167, 216 P.3d

405 (2009). This reading of Ambach is not warranted by the facts of that case. In

Ambach, the plaintiff contracted a staph infection following shoulder surgery and

brought a professional malpractice and CPA claim against the surgeon.             167

Wn.2d at 170. The trial court dismissed the CPA claim because Ambach alleged

a personal injury, not an injury to her “business or property.” jçj~ at 170-71. Our

Supreme Court agreed, reasoning that where a plaintiff is both physically and

economically injured by one act, the economic damages flowing from the physical

injury are not an “injury to business or property” as that term is used in our

consumer protection laws. j~ at 174. It concluded that the expense for the surgery

from which the personal injury arose was not a harm to Ambach’s “property” within

the meaning of the CPA. jçj. at 178-79.

       In Williams v. Lifestyle Lift Holding, this court distinguished Ambach. There,

the plaintiff paid for cosmetic surgery marketed as a “minor one-hour procedure

with major results,” and requiring “no dangerous general anesthetic.” 175 Wn.

App. 62, 64-65, 302 P.3d 523 (2013). Williams, however, underwent regular
                                        —11—
No. 78134-1-1/12

cosmetic surgery; she was sedated and woke up four hours later with her face

wrapped in bandages. .[çj, at 68. Williams experienced numerous complications

from the surgery and underwent a second surgery by a different physician. jç~. at

69.

       Williams sued, claiming negligence, lack of informed consent, and violations

of the CPA. k~. at 69. This court reversed the dismissal of Williams’ CPA claim.

k1. at 64. This court distinguished Ambach because Williams did not claim that a

single act caused both her personal injury and her economic loss. Instead, she

contended her CPA injury, the cost of the cosmetic surgery, was incurred as the

result of the defendant’s deceptive advertising techniques. j~ at 73. Unlike in

Ambach, Williams’s CPA claim did “not depend on proof that [Williams] sustained

a personal injury as a result of the surgery.” j.ç~

       As in Williams, we have two separate acts here: the tortfeasor’s initial act of

causing a car accident and injuring U, and USAA’s separate and independent act

of denying full reimbursement to Eastside, U’s provider. Eastside’s claim is based

on the second act, not the first. We agree with Eastside that under Williams, the

holding of Ambach does not apply. Thus, Eastside’s claimed injury is sufficient to

proceed under the CPA. The trial court erred in concluding that Eastside failed to

establish a cognizable CPA injury to property.3




         ~ We do not suggest that Eastside sustained any actual damages.” The record does not
indicate whether USAA paid additional Eastside invoices after February 2017 and before the PIP
limits were exhausted. We thus leave this issue for the parties to resolve on remand.
                                           -   12-
No. 78134-1 -1/13

    (3) Standing to Challenge RF Methodology under Foiweiler

       USAA urges this court to affirm the summary judgment on alternative

grounds raised below. First, it argues Eastside failed to allege an unfair practice

within the meaning of the CPA. Second, USAA contends Eastside lacks standing

to pursue this claim.

       Folweiler, which issued after the summary judgment in this case, disposes

of both arguments. In Folweiler, a chiropractic clinic contended that American

Family violated the CPA by relying on a computer database to determine the rate

it would pay for medical expenses submitted by Washington providers. 5 Wn.

App.2d at 833. This court reversed the trial court’s dismissal of that claim on

CR 12(b)(6):

       On their face, RCW48.22.095(1)(a) and RCW48.22.005(7) require
       payment of “all reasonable and necessary expenses incurred by or
       on behalf of the insured.” The statutes necessarily impose a duty to
       look at each claim individually in order to determine the reasonable
       and necessary expenses for the insured. The law requires an
       individualized assessment rather than substituting a formulaic
       approach that pays only 80 percent of the average charge for a large
       geographic area.

5 Wn. App.2d at 838. This court held that failing to undertake an individualized

assessment and using a geographic based formula regardless of the individual

circumstances constitutes an unfair act in violation of the CPA. Id. at 839. Given

that Eastlake’s claim is identical to that raised by Folweiler, Eastlake has alleged

an unfair practice under the CPA.

       Folweiler also addressed USAA’s standing argument.            Folweiler, like

Eastlake, alleged a per se violation of the CPA through a violation of insurance

statutes and regulations. This court held that only an insured could bring this per

                                       -13-
No. 78134-1-1/14

se claim. 5 Wn. App. 2d at 836; see also Tank v. State Farm Fire & Cas. Co., 105

Wn.2d 381, 394, 715 P.2d 1133 (1986); Pain Diagnostics & Rehab. Assocs., P.S.

v. Brockman, 97 Wn. App. 691, 698, 988 P.2d 972 (1999). We agree with USAA

that Eastside cannot maintain a per se CPA claim against    USAA.
        But Eastside, like Folweiler, also alleged that the insurer’s reimbursement

practices were an unfair practice that violated the CPA.      This court held that

Folweiler could pursue this “case-specific” claim. 5 Wn. App.2d at 837. In KIem

v. Wash. Mut. Bank, our Supreme Court held that a party may predicate a claim

under the CPA on a per se violation of statute, an act or practice that has the

capacity to deceive substantial portions of the public, oran unfair or deceptive act

or practice not regulated by statute but in violation of public interest. 176 Wn.2d

771, 787, 295 P.3d 1179 (2013). The Folweiler court recognized that we have

allowed the definition of “unfair” or “deceptive” practices to “evolve through a

gradual process of judicial inclusion and exclusion.” Folweiler, 5 Wn. App. 2d. at

837 (internal quotation marks omitted) (quoting Saunders v. Lloyd’s of London, 113

Wn.2d 330, 344, 779 P.2d 249 (1989)). Thus, the plaintiff could prevail if it could

show how the conduct was unfair or deceptive under a “case-specific analysis of

those terms.” j~ (internal quotation marks omitted) (quoting Rush v. Blackburn,

190 Wn. App. 945, 962, 361 P.3d 217 (2015)).

       The Folweiler court evaluated the allegation that American Family was

using a computerized program to reduce payments to medical providers under PIP

policies.    Like the RF Methodology used by USAA, the computerized

reimbursement system used by American Family paid providers at a rate

represented by the 80th percentile of charges from providers in the same
                                       -   14-
No. 78134-1-1/15

geographical area as compiled in a computerized database. j.~. at 833. Noting

that the PIP statutes, RCW 48.22.095(1)(a) (establishing minimum PIP coverage

amounts) and RCW 48.22.005(7) (defining “medical and hospital benefits”),

“impose a duty to look at each claim individually in order to determine the

reasonable and necessary expenses for the insured,” this court concluded that the

use of this type of computerized system to set reimbursement rates is an unfair

practice if there is no individualized assessment to determine the reasonableness

of the charge for a particular insured.4 j.4~ at 838.

        Eastside’s allegations here are identical to those raised in Foiweiler.

Eastside challenges USAA’s use of its RE Methodology, alleging that it

systematically denies full payment of medical expenses because it fails to assess

an insureds’ individual needs. But USAA denies this. USAA presented evidence

that it permitted Eastside to demonstrate the reasonableness of its charges, and it

adjusted the reimbursement when it was able to do so. This evidence creates a

genuine issue of material fact as to whether USAA is using the RF Methodology

without performing an individualized assessment of the reasonableness of its

charges in light of its insureds’ needs. We conclude the trial court erred in granting

summary judgment to USAA on Eastside’s claim.

                                    Summit’s CPA Claims

        Although Summit’s claim is identical to Eastside’s claim, they are not

similarly situated plaintiffs. The trial court dismissed Summit’s claim, concluding



        ~ There is no indication in Folweiler that the insured had contractually agreed to the use of
a computerized database to set reimbursement rates for any incurred medical expenses. Nor is
there any discussion as to whether such an insurance provision is relevant to the analysis or would
contravene the CPA. As this issue was not argued below, we do not reach it here.
                                               -15-
No. 78134-1-1/16

that the final settlement order in MySpine barred its claims. We hold that under

paragraph 27 of the MySpine settlement, Summit is precluded from initiating a

lawsuit against USAA for its use of the RF Methodology for five years from the

effective date of that settlement.   The trial court correctly dismissed Summit’s

claims against USAA because the requisite five-year period has not passed.

       We review CR 12(b)(6) dismissals de novo. FutureSelect Portfolio Mqmt.,

Inc. v. Tremont Gm. Holdings, Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014).

“Dismissal is warranted only if the court concludes, beyond a reasonable doubt,

the plaintiff cannot prove any set of facts which would justify recovery.” Kinney v.

Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007) (internal quotation marks omitted)

(quoting Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104

(1998)).

       Some background on the MySpine litigation and settlement agreement is

necessary to analyze Summit’s arguments on appeal. In 2012, MySpine, a health

care provider, brought a class action against    USAA, alleging that USAA had failed
to pay reasonable bills submitted by providers on PIP claims and that its use of the

RE Methodology to determine reimbursement rates violated the CPA. USAA filed

a CR 12(b)(6) motion arguing that the providers lacked standing to bring a claim

that righifully belonged to the insureds. The trial judge assigned to MySpine,

Judge Theresa Doyle, denied that motion.

       In 2015, the parties reached a class-wide settlement agreement.            In

September 2015, Judge Doyle entered a final order approving the class action

settlement. Summit submitted a claim to the settlement administrator and did not

opt out of the settlement. Under paragraph 16 of the MySpine order, Summit
                                       -   16-
No. 78134-1-1/17

became a “Settlement Class Member” bound by that order. Summit does not deny

this fact.

        Paragraph 18 of the final settlementorder in MySrine provided in pertinent

part:

        18.   . [T]he Named Plaintiffs, and all Settlement Class Members
                  .   .


            have conclusively compromised, settled, discharged, and
        released all Released Claims against the USAA Entities and  .are.   .


        bound by the provisions of the Settlement Agreement.

Those “Released Claims” include all claims that were raised or that could have

been raised with respect to any conduct “prior to the Effective Date” of the

settlement. The final order does not define “Effective Date,” but USAA states the

settlement class closed as of May 29, 2015, which explains why Summit’s alleged

class period begins on May 30, 2015. If May 29, 2015 is the “Effective Date” of

the MySpine settlement, then Summit has released any claims against USAA that

predate May 2015. Summit does not challenge this contention.

        Instead, Summit argues the order approving the MySiDine settlement

permits it to challenge USAA’s use of the RE Methodology after the effective date

of the agreement. This argument requires the court to interpret paragraphs 26

through 29 of the MySpine settlement order. Paragraph 26, 27 and 28 provide in

pertinent part:

               26. The USAA Entities have represented that they are
        currently using the “RE Methodology” as a tool to assist in paying
        Personal Injury Protection (“PIP”) and Medical Payments (MedPay)
        claims in Washington for “reasonable and necessary” medical
        expenses.        The USAA Entities also have represented that they
                          .


        may in the future amend the RE Methodology. (the “Amended RE
                                                      .   .


        Methodology”).

              27. The USAA Entities have the option (but are not obligated)
        to continue using the RE Methodology or any Amended RE
                                      -17-
No. 78134-1-1/18

       Methodology. The use of the RE Methodology and any Amended
       RE Methodology as a tool in paying PIP and MedPay claims does
       not in and of itself breach any duty or obligation under any applicable
       law or contract requiring the USAA Entities to pay or reimburse
       “reasonable and necessary” charges for covered treatment. So long
       as the USAA Entities use the RE Methodology or the Amended RE
       Methodology, the Named Plaintiffs and the Settlement Class
       Members shall refrain for five (5) years after the Effective Date from
       asserting that USAA Entities’ use of the RE Methodology or
       Amended RE Methodology is, in and of itself, a violation of law or a
       breach of any duty or obligation under any applicable law or contract
       requiring the USAA Entities to pay “reasonable and necessary
       charges” for covered treatment.

               28. The USAA Entitles shall be free to use the RE
       Methodology or any Amended RE Methodology as a tool in paying
       PIP and MedPay claims in Washington, and shall be free to pay a
       health care provider’s bills (subject to the applicable coverage limit
       and any other policy provisions) for a covered treatment as follows:
            (d) the lesser of (i) the actual amount billed or (ii) the amount
       recommended by the RE Methodology or Amended RE
       Methodology.

       Paragraph 29, however, permits any “Person” to challenge underpayments

on a case-by-case basis:

      29. However, nothing in Paragraphs 26-28 above shall be construed
      as waiving any claim by any Person that the USAA Entities’ past,
      present, or future use of the RE Methodology.     in the intended or
                                                        .   .


      any particular way results in the USAA Entities’ failing to pay “all
      reasonable and necessary” medical expenses as required by
      Washington law and/or results in the USAA Entities’ failing to fulfill
      any duties or obligations to comply with any and all insurance
      regulations or law when paying Washington PIP and MedPay claims
      and any such Person shall be free to assert such claims against the
      USAA Entities.

      Summit contends that under paragraph 29, it is a “Person” who may claim

that USAA is not paying all reasonable and necessary medical expenses, and that

under paragraph 28, it may allege that USAA is using the RE Methodology not as

“a tool’ in paying PIP claims, [but is instead using it] as the exclusive and sole

means for denying full payment of reasonable bills.”
                                       -18-
No. 78134-1 -1119

       This argument, however, would render the clear and unambiguous

language of paragraphs 27 and 28 of the MySpine settlement order meaningless

or superfluous and also ignores Summit’s own characterization of its CPA claim in

this lawsuit.

       First, paragraph 27 explicitly states that USAA may continue to use the RE

Methodology. Paragraph 28 explicitly provides that USAA may pay providers the

lesser of the actual amount billed or the amount recommended by the RE

Methodology.    It also clearly states that as long as USAA complies with these

provisions, no Settlement Class Member can initiate a lawsuit to claim that its use

of the RE Methodology violates the CPA for a period of five years. There is no

evidence in the record that USAA paid Summit in any manner other than as

permitted in paragraph 28.

       Settlement agreements are interpreted the same way as contracts.

McGuire v. Bates, 169 Wn.2d 185, 188, 234 P.3d 205 (2010). An interpretation of

a contract which gives effect to all of its provisions is favored over one which

renders some of the language meaningless or ineffective. Wagner v. Wagner, 95

Wn.2d 94, 101, 621 P.2d 1279 (1980). If we were to interpret paragraph 29 as

permitting Summit’s lawsuit here, it would render superfluous its agreement not to

bring suit against USAA for using the RE Methodology for five years. We agree

with the trial court that the reference to “Person” in paragraph 29 cannot extend to

Settlement Class Members because it would essentially write out of the settlement

order the explicit five-year litigation bar applicable to the Settlement Class

Members. Courts do not have the power, under the guise of interpretation, to


                                       -19-
No. 78134-1-1/20

rewrite contracts which the parties have made for themselves. Riley v. Iron Gate

Self Storac~e, 198Wn. App. 692, 701, 395 P.3d 1059 (2017).

       Summit argues that Judge Doyle made it clear in paragraph 17 of her order,

when overruling an objection lodged by an insured, that the settlement agreement

did not immunize USAA from compliance with Washington law. It contends the

trial court ignored paragraph 17 and essentially “rewrote” paragraph 29 of the

MySpine order. We disagree.

       Paragraph 17 laid out the court’s reasoning for overruling three objections

the court had received to the class action settlement. In subparagraph (c), the

court stated:

              The third objection was submitted by an attorney. on behalf
                                                                ..


       of an Insured Class Member, Kristen Overlees. The objection
       essentially asserts that   . the Settlement Agreement immunize[s]
                                      .   .


       the USAA Entities from having to comply with Washington law and
       pay a reasonable fee to a provider or insured. This characterization
       of the Settlement is incorrect. The Settlement does not immunize
       the USAA Entities from having to comply with Washington law and
       pay a reasonable fee to a provider or insured.

But we do not interpret paragraph 29 as immunizing USAA from suit. Indeed, it

merely provides that Settlement Class Members cannot sue for a specified period

of time—five years.      We see no inconsistency in paragraph 17 and our

interpretation of paragraph 29.

       Second, in this lawsuit, Summit is alleging exactly what it agreed it would

not claim during that five year period. In the Amended Complaint, Summit alleges

that USAA’s RE Methodology is systematically flawed and always results in an

unlawful underpayment:

             3.76 USAA’s practices of making automatic RF_3 Reason
       Code reductions to the bills submitted by the putative Class of 1,100
                                              -   20   -
No. 78134-1-1121

        Washington providers were a mere sham used by USAA to avoid its
        affirmative duty to pay all reasonable medical expense bills
        submitted and to conduct a reasonable investigation of the provider’s
        PIP claim for reimbursement before denying full payment. The
        practices were a mere sham because USAA’s practices
        systematically, consistently and repeatedly underpaid providers and
        resulted in USAA systematically, consistently and repeatedly failing
        to make “payments of all reasonable” medical expenses under its
        PIP policy as required by the Washington PIP statute.

Moreover, Summit and Eastside are now relying on Folweiler for the proposilion

that USAA’s use of the RE Methodology is, in and of itself, an unfair practice under

the CPA. These allegations are inconsistent with Summit’s agreement, as set out

in the MySpine settlement order, not to challenge this practice for a period of five

years.5 If Summit did not wish to participate in the MySrine settlement, it could

have opted out. It chose not to do so. It is thus bound by the five-year litigation

bar.

        Because the final settlement order in MySrine unambiguously precludes

Summit from bringing suit against USAA based on its use of the RE Methodology

for a period of five years, the trial court properly dismissed Summit’s claim.

                                      Motion to Transfer

        Finally, Eastside and Summit argue that the trial court abused its discretion

when it denied their motion to transfer this case from the assigned judge to Judge

Doyle, the King County Superior Court judge who signed the final settlement order

in MySpine. We reject this argument.


         ~ Summit argues that USAA is judicially estopped from arguing that the MySpine order bars
its claims. This legal argument was not made below, and we decline to address this argument.
See Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 844 (2005) (“In general, issues not raised in
the trial court may not be raised on appeal.”) Summit argued collateral estoppel, not judicial
estoppel, before the trial court. But Summit has not raised this argument on appeal and has thus
waived it. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992)
(assignment of error waived when party fails to present argument in opening brief).
                                             -21   -
No. 78134-1-1/22

       Eastside and Summit acknowledge that a motion to reassign a case is

reviewed for an abuse of discretion. See Russell v. Marenakos LogqinQ Co.,

61 Wn.2d 761, 765, 380 P.2d 744 (1963). An appellate court will find an abuse of

discretion only “on a clear showing of abuse of discretion, that is, discretion

manifestly unreasonable, or exercised on untenable grounds, or for untenable

reasons.” State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

A trial court’s discretionary decision “based ‘on untenable grounds’ or made ‘for

untenable reasons’ if it rests on facts unsupported in the record or was reached by

applying the wrong legal standard.” State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d

638 (2003). A trial court’s exercise of discretion is manifestly unreasonable if the

court adopts a view that no reasonable person would take. Id.

       Although Eastside and Summit argued below that Judge Doyle had

“retained jurisdiction” to interpret and enforce the MySrine order, it does not

advance that argument on appeal. Instead, it merely contends that reassigning

the matter to Judge Doyle would “greatly promote[] judicial efficiency and fairness.”

But deciding that a case transfer will promote judicial efficiency is a matter we leave

entirely in the hands of the trial court to evaluate. The King County Local Rules

vest the decision to transfer a case from one judge to another in the Chief Civil

Judge. KING COUNTY SUPER. CT. LOCAL Civ. R. 42(a). At any given time, trial judges

may be assigned to preside over a trial or to a particular calendar that does not

permit them to receive and preside over a new civil case, even one raising similar

issues as a judge has handled previously. We conclude that the court was within

its discretion to decide that the assigned judge was just as able to interpret the


                                        -   22   -
No. 78134-1-1/23

terms of the final settlement order as was Judge Doyle. Thus, the trial court did

not abuse its discretion in denying the motion to transfer.

                                  CONCLUSION

      We conclude that the trial court correctly dismissed Summit’s CPA claim

against USAA because the MySrine final settlement order bars Summit from

challenging the RF Methodology for five years. We also conclude that the trial

court did not abuse its discretion when it denied Eastside’s and Summit’s motion

to transfer the case from Judge Linde to Judge Doyle. But we conclude Folweiler

requires the reversal of the summary judgment dismissal of Eastside’s CPA claim.

We remand that claim for proceedings consistent with this opinion.

      Affirmed in part, reversed in part.




WE CONCUR:                                                           C!




                                       -   23   -
