              FILE                                                                       THIS OPINION WAS FILED
                                                                                        FOR RECORD AT 8 A.M. ON
       IN CLERK’S OFFICE                                                                       MAY 7, 2020
SUPREME COURT, STATE OF WASHINGTON
            MAY 7, 2020
                                                                                           SUSAN L. CARLSON
                                                                                         SUPREME COURT CLERK




        IN THE SUPREME COURT OF THE STATE OF WASHINGTON


                                              )
            LESLIE W. and HARLENE E. ROBBINS, )
            husband and wife,                 )                             No. 96726-1
                                              )
                           Respondents,       )                               En Banc
                 v.                           )
                                              )
                                              )                          May 7, 2020
                                                                  Filed ____________________
            MASON COUNTY TITLE INSURANCE
                                              )
            COMPANY; and RETITLE INSURANCE )
            COMPANY,                          )
                                              )
                           Petitioners.       )
                                              )


                WIGGINS, J.P.T. ∗—We are asked to decide whether Mason County Title

        Insurance Company (MCTI) had a duty to defend insured property owners when a

        Native American tribe announced it planned to assert its treaty right to harvest

        shellfish from the property. Further, this case asks whether a moving party seeking

        summary judgment on liability must specifically move for summary judgment on

        affirmative defenses.




        ∗
         Justice Charles Wiggins is serving as a justice pro tempore of the Supreme Court pursuant
        to Washington Constitution article IV, section 2(a).
Robbins v. Mason County Title Ins., No. 96726-1


      The duty to defend is broad and if an insurance policy conceivably provides

coverage, the insurer must defend or be found to have breached the duty. If this

breach is unreasonable, the insurer acted in bad faith.

      In the present case, we affirm the Court of Appeals and remand to the superior

court for further proceedings consistent with this opinion. We hold that because the

insurance policy conceivably covered the treaty right and no exceptions to coverage

applied, MCTI owed the property owners a duty to defend and, in failing to do so,

breached the duty. Because this breach was unreasonable given the uncertainty in

the law, MCTI acted in bad faith. Further, because the property owners did not seek

summary judgment on MCTI’s affirmative defenses, we remand to the superior court

for consideration of the defenses. Accordingly, we decline to rule on the property

owners’ request for attorney fees as premature.

                           FACTS AND PROCEDURAL HISTORY

      In 1854, the Washington Territory and nine Native American tribes, including

the Squaxin Island Tribe (the Tribe), entered into the 1854 Treaty of Medicine Creek

(the Treaty). See 10 Stat. 1132. Under the Treaty, the nine tribes relinquished their

rights to the land but retained “the right of taking fish at all usual and accustomed

grounds and stations . . . , in common with all citizens of the Territory.” Clerk’s Papers

(CP) at 67. The District Court for the Western District of Washington has interpreted

“fish” under the Treaty to include shellfish. United States v. Washington, 873 F. Supp.

1422, 1430 (W.D. Wash. 1994), aff’d in part, reversed in part, 135 F.3d 618 (9th Cir.

1998). The Ninth Circuit agreed that this right to take fish includes the right to harvest

shellfish from private lands within the usual and accustomed places with naturally
                                            2
Robbins v. Mason County Title Ins., No. 96726-1


occurring shellfish beds, but not artificial shellfish beds. Washington, 135 F.3d at 643,

645-46. The Tribe’s treaty right is not disputed in this case.

       In 1978, Leslie and Harlene Robbins (Robbins 1) purchased property in Mason

County that included tidelands with manila clam beds. CP at 224. In connection with

the purchase of the property, Robbins obtained a standard policy of title insurance

from MCTI. 2 The policy provides that MCTI will insure Robbins “against loss or

damage sustained by reason of: . . . [a]ny defect in, or lien or encumbrance on, said

title existing at the date hereof.” Id. at 229. Specifically,

       [MCTI] shall have the right to, and will, at its own expense, defend the insured
       with respect to all demands and legal proceedings founded upon a claim of
       title, encumbrance or defect which existed or is claimed to have existed prior
       to the date hereof and is not set forth or excepted herein.

Id. at 232. Under “[g]eneral [e]xceptions,” the policy excludes from coverage “public

or private easements not disclosed by the public records.” Id. at 231. “[P]ublic records”

is defined under the policy as “records which, under the recording laws, impart

constructive notice with respect to said real estate.” Id. at 232. No other pertinent

terms are defined under the policy.

       For years Robbins had contracted with commercial shellfish harvesters to enter

Robbins’s property to harvest shellfish from the tidelands. Id. at 224. In 2015, after

another contract expired, Robbins began negotiations with a different shellfish

harvester. Id. at 225. Although the harvester had reason to believe Robbins’s clam

beds were not natural and, thus, not part of the Treaty, he notified the Tribe of his


1
  For ease of reference we refer to the Robbinses collectively as the singular “Robbins.” We
intend no disrespect.
2
  MCTI is now known as Retitle Insurance Company. CP at 23.
                                               3
Robbins v. Mason County Title Ins., No. 96726-1


intent to harvest shellfish from Robbins’s property. Id. at 225-26. The Tribe responded

that it needed more information about the tidelands, that it disagreed with the

harvester’s assertion that Robbins’s tidelands did not include natural clam beds, and

referred him to the Tribe’s rights under the 2002 Shellfish Implementation Plan. 3 Id. at

234-35.

       Having learned of the Tribe’s letter and having consulted with counsel, Robbins

ultimately tendered a claim to MCTI to defend against the Tribe’s demand to enter

Robbins’s property to harvest clams. Id. at 225. On July 26, 2015, the Tribe sent

Robbins a formal letter to notify them of the Tribe’s plan to enter their property and

harvest shellfish in accordance with the federal court’s interpretation of the Treaty in

Washington4 and the 2002 Shellfish Implementation Plan. Id. at 225, 241.

       MCTI denied Robbins’s request for a defense because, in MCTI’s view, the

Tribe’s asserted right is an “easement[]” and “[a] treaty between the federal

government and a Native American Indian tribe is not a record that imparts

constructive notice pursuant to Washington law.” Id. at 225, 244. Thus, MCTI claimed

the Tribe’s treaty rights were “not within the scope of this policy.” Id. at 245.

       Robbins then filed suit against MCTI in Mason County Superior Court, alleging

in pertinent part that MCTI breached its duty to defend. Id. at 321. MCTI denied the




3
  The Shellfish Implementation Plan was created to give guidance and implement various tribes’
shellfish harvesting rights. See id. at 241.
4
  There are multiple pertinent cases by this name in the course of the Treaty litigation, but the
Tribe’s letter does not indicate to which specific case it is referring.
                                               4
Robbins v. Mason County Title Ins., No. 96726-1


allegations, arguing that the policy did not cover the circumstances alleged and raised

10 additional affirmative defenses. 5 Id. at 300-04.

       MCTI moved for summary judgment, asking the court to dismiss the complaint

with prejudice on the ground that there is no duty to defend because there is no

coverage under the policy. Id. at 274-81. Robbins filed a cross motion for partial

summary judgment, urging the court to find that MCTI had a duty to defend and, by

not doing so, that MCTI breached its duty. Id. at 272.

       The superior court granted MCTI’s motion for summary judgment, denied

Robbins’s motion for partial summary judgment, and dismissed Robbins’s claims with

prejudice. Id. at 4-5.

       Robbins appealed again, alleging that MCTI breached the duty to defend

because the Tribe’s letter was a demand under the policy, and the asserted right is

not an easement and is disclosed by public record. Robbins also asked for reasonable

attorney fees under Olympic Steamship Co. v. Centennial Insurance Co., 117 Wn.2d

37, 811 P.2d 673 (1991). MCTI again argued that there was no duty to defend as the

Tribe did not initiate legal proceedings and the asserted right is an easement not

disclosed by the public records. MCTI also noted that the superior court had not yet

considered MCTI’s affirmative defenses.

       The Court of Appeals reversed the order granting summary judgment, holding

that the Tribe’s letter was a “demand” under the policy that triggered the duty to

defend, the Tribe’s asserted right is a profit à prendre (hereinafter “profit”) and that a


5
 These include, among others, statute of limitations, laches, failure to mitigate damages, and
waiver. See id. at 303.
                                              5
Robbins v. Mason County Title Ins., No. 96726-1


profit is not an easement. Robbins v. Mason County Title Ins. Co., 5 Wn. App. 2d 68,

425 P.3d 885 (2018). The Court of Appeals did not reach whether the Tribe’s Treaty

rights were “disclosed by the public records.” Id. at 79. Finding the breach of the duty

to defend “unreasonable,” the Court of Appeals held that as a matter of law, MCTI

acted in bad faith. Id. at 82-83. The Court of Appeals remanded to the superior court

for consideration of MCTI’s affirmative defenses as Robbins did not specifically move

for summary judgment on the affirmative defenses. Id. at 84-85. Accordingly, the Court

of Appeals did not rule on attorney fees because they would be premature until

affirmative defenses were decided on remand. Id. at 85.

      MCTI petitioned this court for review of whether MCTI had a duty to defend,

whether the Tribe’s right was excluded from coverage, and whether the Court of

Appeals properly considered the issue of whether MCTI acted in bad faith when it was

not raised by either party at the trial court. MCTI’s Pet. for Discr. Review at 2. In their

answer to the petition for review, Robbins opposed review but asked that if we granted

review, we also grant review of the Court of Appeals’ remand for consideration of

MCTI’s affirmative defenses, and Robbins again asked for attorney fees. Robbins’s

Ans. to Pet. for Review at 1-2. We granted review of all issues in the petition for review

and the answer to the petition for review.


                                         ISSUES

       I.    Whether MCTI had a duty to defend against the Tribe’s asserted right.

       II.   Whether MCTI acted in bad faith in failing to defend.




                                             6
Robbins v. Mason County Title Ins., No. 96726-1


       III.   Whether MCTI was required to create a genuine issue of material fact as
              to its affirmative defenses even when Robbins did not move for summary
              judgment on the defenses.

       IV.    Whether Robbins is entitled to attorney fees.


                                         ANALYSIS

       We review an order for summary judgment de novo and engage in the same

inquiry as the superior court. Woo v. Fireman’s Fund Ins. Co., 161 Wn.2d 43, 52, 164

P.3d 454 (2007).

       “We interpret insurance policy provisions as a matter of law.” Am. Best Food,

Inc. v. Alea London, Ltd., 168 Wn.2d 398, 404, 229 P.3d 693 (2010) (citing Kitsap

County v. Allstate Ins. Co., 136 Wn.2d 567, 575, 964 P.2d 1173 (1998)). When

interpreting an insurance policy, we give the language its plain meaning, construing

the policy as the average person purchasing insurance would. Woo, 161 Wn.2d at 52.

Any ambiguity in the policy is interpreted in favor of the insured. Am. Best Food, 168

Wn.2d at 411.

       In the insurance context, the duty to defend is broader than the duty to

indemnify. Woo, 161 Wn.2d at 52. An insurance company has the duty to indemnify if

the insurance policy actually covers the insured, while the duty to defend arises if the

insurance policy conceivably covers the insured. Am. Best Food, 168 Wn.2d at 404.

An insurer is relieved of the duty to defend only if the policy clearly does not cover the

claim. Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 760, 58 P.3d 276

(2002). “If the complaint is ambiguous, it will be liberally construed in favor of triggering




                                             7
Robbins v. Mason County Title Ins., No. 96726-1


the insurer’s duty to defend.” Id. (citing R.A. Hanson Co. v. Aetna Ins. Co., 26 Wn.

App. 290, 295, 612 P.2d 456 (1980)).

      I.     MCTI had a duty to defend because the insurance policy conceivably
             covered the Tribe’s asserted right and no general exceptions apply

      As an initial matter, MCTI argues that it was not obligated to defend the claim

when tribal fishing rights have been “effectively determined” and litigated in United

States v. Washington, 384 F. Supp. 312 (1974). Suppl. Br. of MCTI at 2. In that case,

United States District Court Judge Boldt determined that the Hammersley Inlet (where

Robbins’s property is located) is within the Tribe’s usual and accustomed area.

Washington, 384 F. Supp. at 377-78. However, in his declaration, Robbins does not

dispute that the Tribe has a treaty right or that the general area where his property is

located is part of the Tribe’s usual and accustomed fishing grounds. CP at 225-26. He

makes the more limited claim that the harvester he hired had reason to believe that

the clam bed was not natural and thus not subject to the Treaty. See id. Whether

Robbins’s tidelands contain natural or artificial clam beds was not previously litigated

in the cases interpreting the Treaty.

             A.     The Tribe’s letter was a “demand” within the meaning of the
                    insurance policy
      MCTI also argues that Robbins’s policy did not afford coverage for the Tribe’s

letter indicating the intent to harvest shellfish from Robbins’s property because the

Tribe did not initiate legal proceedings against Robbins. Suppl. Br. of MCTI at 6-7. In

contrast, Robbins argues that the letter was a “demand” such that it triggered the duty




                                           8
Robbins v. Mason County Title Ins., No. 96726-1


to defend under the language of the policy. Suppl. Br. of Robbins at 6-7. We agree

with Robbins.

       The insurance policy between MCTI and Robbins indicates that MCTI “will, at

its own expense, defend the insured with respect to all demands and legal

proceedings founded upon a claim of title, encumbrance or defect which existed or is

claimed to have existed prior to the date hereof and is not set forth or excepted herein.”

CP at 232 (emphasis added). It is undisputed that the Tribe did not begin any “legal

proceedings” that would trigger coverage under the policy. Thus, the question is

whether the Tribe’s letter is a “demand” that triggered the duty to defend.6

       As the Court of Appeals notes, the insurance policy does not define “demand.”

See Robbins, 5 Wn. App. 2d at 77. Thus, we give “demand” its plain and ordinary

meaning.

       A “demand” is “the asking or seeking for what is due or claimed as due.”

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 598 (2002). Similarly, Black’s Law

Dictionary defines “demand” as “[t]he assertion of a legal or procedural right.” BLACK’S

LAW DICTIONARY 542 (11th ed. 2019). Here, the Tribe asserted its legal right to harvest

shellfish on Robbins’s tidelands by sending Robbins a letter stating that the Tribe was

seeking the shellfish it was due. Thus, the plain meaning of the policy supports

concluding that the letter was a demand.




6
  Although the Court of Appeals went through an analysis of the plain meaning of words other
than “demand,” MCTI challenges only the conclusion that the letter was a “demand” sufficient to
trigger the duty to defend. See MCTI’s Pet. for Discr. Review at 7-9; Suppl. Br. of MCTI at 6-7.
                                               9
Robbins v. Mason County Title Ins., No. 96726-1


       MCTI argues that the duty to defend can be triggered only once legal

proceedings have been initiated. Suppl. Br. of MCTI at 6. MCTI cites language from

our case law that supports MCTI’s argument. See MCTI’s Pet. for Discr. Review at 8.

For example, in Woo we indicated that the duty to defend “‘arises at the time an action

is first brought, and is based on the potential for liability.’” 161 Wn.2d at 52 (quoting

Truck Ins. Exch., 147 Wn.2d at 760); see also Am. Best Food, 168 Wn.2d at 404

(quoting the same). However, these cases do not indicate the actual policy language

relied upon.

       In contrast, in United Services Automobile Ass’n v. Speed, 179 Wn. App. 184,

317 P.3d 532 (2014), the Court of Appeals held that a demand letter can be sufficient

to trigger the duty to defend depending on the language of the policy. The court

reasoned that although “[m]ost Washington cases recite that the insurer’s duty to

defend is triggered when a complaint is filed against the insured[,] [t]he cases

reference a ‘complaint’ because most standard policies require the insurer to defend

only a ‘suit’ against the insured.” Id. at 195 (citations omitted) (citing Mut. of Enumclaw

Ins. Co. v. USF Ins. Co., 164 Wn.2d 411, 420-21, 191 P.3d 866 (2008); Woo, 161

Wn.2d at 52). Further, the policy at issue in that case indicated that the insurer’s “duty

to defend arose not only when a ‘suit’ was brought against the insured, but also when

any ‘claim’ was made for damages.” Id. Therefore, the Court of Appeals held that the

insurer’s duty to defend was triggered when the injured party sent the demand letter.

Id.

       The policy language in the present case indicates that MCTI will defend not

only against legal proceedings but also against demands. Therefore, the duty to
                                            10
Robbins v. Mason County Title Ins., No. 96726-1


defend was triggered when the Tribe sent the letter to Robbins, and MCTI was

required to defend Robbins unless an exception under the policy applied.

               B.     No exception applies that would relieve MCTI from its duty to
                      defend

       When interpreting an insurance policy, “[w]e strictly and narrowly construe . . .

[exceptions].” 7 Campbell v. Ticor Title Ins. Co., 166 Wn.2d 466, 472, 209 P.3d 859

(2009). When determining if an exception applies, “[t]he lack of any Washington case

directly on point . . . present[s] a legal uncertainty with regard to [an insurer’s] duty,”

and “any uncertainty works in favor of providing a defense to an insured.” Am. Best

Food, 168 Wn.2d at 408.

       The insurance policy excepts from coverage “public or private easements not

disclosed by the public records.” CP at 231. Therefore, if the Tribe’s asserted right

either is not an easement or is disclosed by public records, then the exception does

not apply and MCTI had a duty to defend. In determining whether the right is an

easement not disclosed by public record, we are mindful that any uncertainty is

construed in favor of Robbins.

       MCTI argues that the Tribe’s asserted right is an easement. Suppl. Br. of MCTI

at 12. In contrast, Robbins argues that the right is a profit and that a profit is a type of

servitude distinct from an easement. Suppl. Br. of Robbins at 11-12.

       In United States v. Winans, 198 U.S. 371, 381, 25 S. Ct. 662, 49 L. Ed. 1089

(1905), the United States Supreme Court held that the fishing rights reserved by the


7
  Our case law frequently refers to “exclusions.” See, e.g., Campbell v. Ticor Title Ins. Co., 166
Wn.2d 466, 472, 209 P.3d 859 (2009). However, because the policy language and parties refer
to “exceptions” to the policy instead of “exclusions,” we use “exceptions” in this opinion.
                                               11
Robbins v. Mason County Title Ins., No. 96726-1


Native Americans through the Yakama Nation treaty 8 “imposed a servitude upon

every piece of land as though described therein.”

         “A servitude is a legal device that creates a right or obligation that runs with the

land” that “can be, among other things, an easement, profit, or covenant.” Lake

Limerick Country Club v. Hunt Mfd. Homes, Inc., 120 Wn. App. 246, 253, 84 P.3d 295

(2004) (citing 1 RESTATEMENT (THIRD)         OF   PROPERTY: SERVITUDES § 1.1(1), (2), at 8

(AM. LAW INST. 2000) (“The servitudes covered by this Restatement are easements,

profits, and covenants.”). The Court of Appeals interpreted this to mean that

“easements and profits are two distinct types of servitudes.” Robbins, 5 Wn. App. 2d

at 80.

         Our prior decisions help us to define easements and profits, and we hold that

the Tribe’s right squarely fits within the definition of a profit. We have defined an

easement as “a right to enter and use property for some specified purpose.” Affil. FM

Ins. Co. v. LTK Consulting Servs., Inc., 170 Wn.2d 442, 458, 243 P.3d 521 (2010)

(plurality opinion). “Familiar easements are for driveways, roads, and utility lines.” 17

WILLIAM B. STOEBUCK & JOHN W. W EAVER, W ASHINGTON PRACTICE: REAL ESTATE:

PROPERTY LAW § 2.1, at 80 (2d ed. 2004). In contrast, we have defined a profit as “‘the

right to sever and to remove some substance from the land.’” Affil. FM Ins. Co., 170

Wn.2d at 458 (quoting 17 STOEBUCK & W EAVER, supra, at 80). We have also reasoned

that timber cutting rights should be interpreted as a “profit à prendre, a right to take



8
 The fishing rights in the Yakama Nation treaty are very similar to those reserved in the Treaty of
Medicine Creek. Compare 10 Stat. 1132 (Treaty of Medicine Creek), with 12 Stat. 951 (Treaty
with the Yakama, 1855).
                                                12
Robbins v. Mason County Title Ins., No. 96726-1


the profits of the land by entering onto it and cutting and removing the timber.” Layman

v. Ledgett, 89 Wn.2d 906, 911, 577 P.2d 970 (1978). The Tribe’s right to enter onto

Robbins’s tidelands and remove shellfish is very similar to that of one who can enter

into another’s land, cut down trees, and remove the timber. Therefore, the treaty right

is a profit.

       Because we hold the Tribe’s right is a profit, we also examine the interplay of

easements and profits. If a profit is clearly an easement, then this part of the exception

applies. If a profit is not an easement, or there is uncertainty in the case law as to

whether a profit is an easement, then the exception does not apply and MCTI had a

duty to defend.

       MCTI argues that even if the Tribe’s right is a profit, a profit is a type of

easement, and thus the exclusion should apply. MCTI’s argument does have merit.

Although the Restatement calls out easements and profits as types of servitudes, it

also defines a “profit” as “an easement that confers the right to enter and remove

timber, minerals, oil, gas, game, or other substances from land in the possession of

another.” RESTATEMENT § 1.2(2) (emphasis added). Further, when discussing Native

American fishing rights under a different treaty, we found that “the treaty secured to

the Indians a servitude, or easement, upon the land at their usual and accustomed

places.” State v. McCoy, 63 Wn.2d 421, 433, 387 P.2d 942 (1963) (emphasis added).

The United States Supreme Court has similarly found that hunting and fishing rights,

although a profit, are also an easement. See New York ex rel. Kennedy v. Becker,

241 U.S. 556, 562, 36 S. Ct. 705, 60 L. Ed. 1166 (1916) (“We assume that [the



                                           13
Robbins v. Mason County Title Ins., No. 96726-1


Seneca] retained an easement [to hunt and fish], or profit à prendre, to the extent

defined [in the Treaty of Big Tree of 1797].”).

      However, more recently, a plurality of this court has referred to profits as “[a]

cousin of easements,” implying that a profit is not a type of easement. Affil. FM Ins.

Co., 170 Wn.2d at 458. Washington Practice: Real Estate: Property Law, although not

binding authority, similarly refers to profits and easements as separate types of

servitudes. See 17 STOEBUCK & W EAVER, supra, at 80 (“The basic distinction between

easements and profits is that an easement is a right to go upon another’s land and

more or less to use it, whereas a profit is the right to sever and to remove some

substance from the land.” (emphasis added)). However, this treatise also states that

the “distinction between easements and profits . . . may become blurred in practice”

because profits “carr[y] with [them] easements to get at the subject of the profit.” Id.

at 81. This line is further blurred “with certain kinds of rights that are difficult to

categorize as being clearly one or the other.” Id. While logically one who holds a profit

must also hold an easement to enter the land to reach the subject of the profit, it is

unclear under Washington law whether a profit is a different type easement or a

distinct servitude altogether.

       Because the core issue in the present case is whether Washington law is clear

as to the interplay of profits and easements, we decline to explicitly decide whether a

profit is an easement or whether they are two distinct types of servitude. What we

recognize in this case is that the various authorities we rely on disagree as to whether

a profit is a type of easement, and this uncertainty in the law must be construed in

favor of the insured and coverage under the policy agreement. While we have
                                           14
Robbins v. Mason County Title Ins., No. 96726-1


previously stated that Native American fishing rights are an easement, as noted

above, the rights appear to be more akin to a profit, and our case law has not explicitly

stated whether a profit is a type of easement. However, a plurality of this court has

implied profits are servitudes distinct from an easement. Thus, our case law, in

conjunction with persuasive authority, creates uncertainty in the law. Because under

American Best Food any uncertainty in the law must be construed in favor of the

insured, the policy exception for “easements” does not apply to the Tribe’s right, and

MCTI had a duty to defend. 9 MCTI therefore breached this duty when it did not defend

against the Tribe’s demand.

      II.    MCTI acted in bad faith because it unreasonably failed to defend
             against an asserted right

      The Court of Appeals found that MCTI unreasonably breached the duty to

defend and, thus, acted in bad faith as a matter of law and is estopped from denying

coverage. Robbins, 5 Wn. App. 2d at 72. We agree.

      “An insurer acts in bad faith if its breach of the duty to defend was

unreasonable, frivolous, or unfounded.” Am. Best Food, 168 Wn.2d at 412. When an

insurer is unsure as to whether the duty to defend applies, “it may defend under a

reservation of rights while seeking a declaratory judgment that it has no duty to

defend.” Truck Ins. Exch. 147 Wn.2d at 761. This reservation of rights means that the

insurer “avoids breaching its duty to defend while seeking to avoid waiver and




9
 Because we find that the exception does not apply, we do not reach the issue of whether a
Treaty is “disclosed by public record.”


                                           15
Robbins v. Mason County Title Ins., No. 96726-1


estoppel” while giving the insured the benefit of the doubt. Id. When an insurer

wrongfully refuses to defend, there is a rebuttable presumption of harm to the insured.

Am. Best Food, 168 Wn.2d at 411-12 (citing Kirk v. Mt. Airy Ins. Co., 134 Wn.2d 558,

563, 951 P.2d 1124 (1998)). When an insurer breaches in bad faith, it is estopped

from denying coverage. Kirk, 134 Wn.2d at 564.

      In American Best Food, we held that the insurer acted in bad faith as a matter

of law when it declined to defend based on its own interpretation of the law. 168 Wn.2d

at 411. In that case, a nightclub patron sued American Best Food’s nightclub for

negligence when employees “dump[ed] him on the sidewalk” after he had been shot

by another patron. Id. at 403. The insurer, Alea, refused to defend because the

insurance policy included an exception for injuries arising from assault and battery. Id.

At the time of the case, Washington case law indicated that preassault negligence

was included in an assault and battery exclusion because the cause of action still

arose from the actual assault. Id. at 406-07 (citing McAllister v. Agora Syndicate, Inc.,

103 Wn. App. 106, 11 P.3d 859 (2000)). Alea relied on this case law to deny coverage.

      However, because Washington courts had never determined whether there is

a distinction between preassault negligence and postassault negligence in the context

of a policy exclusion, we looked to out of state authority. Id. at 407-08. We found the

out of state authority that concluded there was a duty to defend in the case of

postassault negligence, even with a policy exclusion for assault and battery,

persuasive. Id. We noted that “[t]he lack of any Washington case directly on point and

a recognized distinction between preassault and postassault negligence presented a

legal uncertainty with regard to Alea’s duty.” Id. at 408. Because the insurer must put
                                           16
Robbins v. Mason County Title Ins., No. 96726-1


the insured’s needs before its own, following an arguable, but not conclusive,

interpretation of Washington law was not consistent with giving the insured “the benefit

of any doubt as to the duty to defend.” Id. at 413. Accordingly, the reliance on the

insurer’s interpretation was unreasonable, and we held that Alea acted in bad faith as

a matter of law when it did not defend. Id.

      The present case is very similar to American Best Food. Here, MCTI did not

defend under a reservation of rights but, instead, refused to defend based on its own

interpretation of the policy and the law. As discussed above, the law regarding

whether the Tribe’s asserted right is an easement or a profit and whether a profit is an

easement is unclear within Washington. Our case law is at best uncertain as to those

questions that must be construed in favor of the insured and that trigger the duty to

defend. Just as the insurance company in American Best Food acted unreasonably

when it relied on its own interpretations of Washington case law, so did MCTI in the

present case. Therefore, we hold that MCTI breached the duty of good faith as a

matter of law and presume harm to Robbins. Given the presumption of harm, MCTI is

estopped from denying coverage unless an affirmative defense applies, as discussed

below.

          III.   The superior court must consider MCTI’s affirmative defenses on
                 remand because Robbins did not move for summary judgment on the
                 defenses

         “The purpose of a motion under the civil rules is to give the other party notice

of the relief sought.” Pamelin Indus., Inc. v. Sheen-U.S.A., Inc., 95 Wn.2d 398, 402,

622 P.2d 1270 (1981) (emphasis omitted). Under CR 7(b)(1), motions “shall state with

particularity the grounds therefor, and shall set forth the relief or order sought.” Under
                                            17
Robbins v. Mason County Title Ins., No. 96726-1


CR 56(a), a party may “move . . . for a summary judgment in the party's favor upon all

or any part thereof.” This includes moving for summary judgment “on the issue of

liability.” CR 56(c). Further, in response, “an adverse party may not rest upon the mere

allegations or denials of a pleading, but a response, by affidavits or as otherwise

provided in this rule, must set forth specific facts showing that there is a genuine issue

for trial.” CR 56(e). Taken together, CR 7 and CR 56 stand for the proposition that a

party moving for summary judgment must state, with particularity, the grounds on

which it seeks summary judgment in order to give the opposing party notice of the

relief sought. The opposing party can then respond with any genuine issues of

material fact in regard to the contents of the motion.

      In his cross motion for partial summary judgment, Robbins sought summary

judgment that MCTI “owed, and breached, a duty to defend.” CP at 252. The only

reference to affirmative defenses in the motion is that “[u]nder [American Best Food],

the Court should go no farther in analyzing the applicability of the insurer's defenses

than to determine that no clear legal authority establishes these defenses definitely

apply so as to justify the insurer's denial of a defense to the Robbins.” Id. at 272

(boldface and underlining omitted). But American Best Food does not discuss

affirmative defenses. As explained above, American Best Food concerns the duty to

defend when case law is unclear. It does not stand for the proposition that an

insurance company can have no affirmative defense without clear legal authority.

Further, asking the court not to analyze the insurer’s defenses cannot be seen as

seeking summary judgment on those defenses. Given that Robbins did not state with

particularity that he was seeking summary judgment on the issue of affirmative
                                           18
Robbins v. Mason County Title Ins., No. 96726-1


defenses, MCTI cannot be said to have been given notice that summary judgment on

the affirmative defenses was the relief sought.

      In its response to the cross motion, MCTI nonetheless noted its affirmative

defenses again and explained that the parties had not engaged in discovery to explore

the facts related to the affirmative defenses, so there may still be an issue of material

fact. Id. at 33-37. But as the Court of Appeals correctly held, MCTI did not need to

create a genuine issue of material fact under CR 56(e) with respect to the affirmative

defenses because Robbins had not moved for summary judgment on the defenses.

      Relying in part on Labriola v. Pollard Group, Inc., 152 Wn.2d 828, 840-42, 100

P.3d 791 (2004), Robbins argues that because he sought summary judgment on the

issue of liability and MCTI did not create a genuine issue of material fact as to its

affirmative defenses to liability, MCTI cannot assert its affirmative defenses on

remand. Suppl. Br. of Robbins at 16-17. In Labriola, we examined affirmative defenses

that were dismissed upon one party’s motion. The opposing party sought to have the

defenses reinstated on remand to the superior court; however, because there was no

factual dispute as to the defenses and the trial court had made correct rulings as to

each defense, we did not reinstate the defenses on remand. Labriola, 152 Wn.2d at

840-41. But Labriola and the present case are materially distinguishable. Here,

Robbins did not move to dismiss the affirmative defenses, MCTI has alleged a need

for discovery to determine facts, and the superior court has not ruled on any of the

defenses.

      Because Robbins did not seek summary judgment on MCTI’s defenses and the

superior court has not ruled on any of MCTI’s affirmative defenses, we remand to the
                                           19
Robbins v. Mason County Title Ins., No. 96726-1


superior court for consideration of the defenses, consistent with the other holdings in

this opinion.

        IV.     Robbins is not entitled to attorney fees at this time because the
                superior court must still consider MCTI’s affirmative defenses

       Robbins claims that they are entitled to reasonable attorney fees and costs

pursuant to Olympic Steamship Co., 117 Wn.2d 37, and the Insurance Fair Conduct

Act. See RCW 48.30.015(3) (awarding attorney fees “after a finding of unreasonable

denial of a claim for coverage”). Because we remand to the superior court for

consideration of MCTI’s affirmative defenses, Robbins’s request for attorney fees is

premature. Therefore, we decline to rule on this issue.

                                     CONCLUSION

       We affirm the Court of Appeals and remand to the superior court for

consideration of MCTI’s affirmative defenses. We hold that MCTI had a duty to defend

Robbins against the Tribe’s asserted right and that MCTI breached that duty in bad

faith when it unreasonably failed to do so. Further, we hold that CR 56 requires parties

moving for summary judgment on liability to explicitly move for summary judgment on

the affirmative defenses if they would like the court to rule on them. Because Robbins

did not do so, we remand to the superior court for consideration of MCTI’s affirmative

defenses. Finally, we decline to rule on the issue of attorney’s fees as premature.




                                           20
Robbins v. Mason County Title Ins., No. 96726-1




      WE CONCUR.




                                          21
Robbins v. Mason County Title Ins.




                                         No. 96726-1


       MADSEN, J. (dissenting)—The majority determines that the Squaxin Island

Tribe’s letter sent to Leslie and Harlene Robbins (collectively Robbins), informing

Robbins of the tribe’s plan to harvest shellfish on Robbins’ tidelands at a specific time

and date was sufficient to trigger Robbins’ title insurer’s duty to defend under Robbins’

title insurance policy. For the reasons discussed below, I disagree.

       Robbins’ title insurance policy with Mason County Title Insurance Company

(MCTI) provided in part that “subject to the conditions and stipulations of this policy,

[MCTI] does hereby insure . . . ‘the insured’ . . . against loss or damage sustained by

reason of . . . [a]ny defect in, or lien or encumbrance on, said title existing at the date

hereof.” Clerk’s Papers (CP) at 229. The policy stated that “[MCTI] shall have the right

to, and will, at its own expense, defend the insured with respect to all demands and legal

proceedings founded upon a claim of title, encumbrance or defect which existed or is

claimed to have existed prior to the date hereof and is not set forth or excepted herein.”

Id. at 232. The policy’s stated “[g]eneral [e]xceptions” expressly excluded from

coverage “public or private easements not disclosed by the public records.” Id. at 231.
No. 96726-1
Madsen, J., dissenting


The policy also defined “public record” as “records which, under the recording laws,

impart constructive notice with respect to said real estate.” Id. at 232.

       Robbins received the letter in question, dated July 26, 2016, from Rana Brown, the

“Shellfish Biologist [for the] Squaxin Island Tribe.” Id. at 241-42. The letter was

entitled “Notification of Squaxin Island Tribe Plan To Harvest on Non-Commercial,

Privately Owned Tidelands at {183 SE Morgan Rd}.” Id. at 241. The letter informed

Robbins, “This letter notifies you of the shellfish survey outcome on your tidelands, and

of the upcoming Tribal clam harvest(s) there.” Id. The letter explained, “As background,

some years ago the federal courts . . . confirmed the [Tribe’s] rights under the 1854

Treaty of Medicine Creek to take a 50% share of the harvestable biomass of each

shellfish species within the Tribe[’s] usual and accustomed grounds and stations. These

lands include privately owned tidelands such as those surrounding Vaughn Bay.” Id.

The letter provided a web address that contained documents including a court-approved

“Shellfish Implementation Plan” that described the process for notifying private

landowners for tideland surveys and harvests, and for resolving disagreements. Id. The

letter informed Robbins that the tribe had conducted a shellfish population survey the

previous May, estimating the tribe’s “Treaty share in pounds (50%)” on Robbins’

property to be 3,391 pounds, and noted the planned harvest time and date set for the

following August. Id. at 241-42. The letter noted that “[d]uring the harvest, the Tribe

will follow the requirements of the Implementation Plan and other order[s] issued by the

courts.” Id. at 242. The letter further explained, “Tribal Harvesters may only access



                                              2
No. 96726-1
Madsen, J., dissenting


tidelands by boat” and “Tribal harvests are for commercial purposes and clams will be

weighed out and sold to an authorized buyer on the beach immediately after the dig.” Id.

The letter closed by stating, “Please feel free to contact me with any questions or

concerns,” provided contact information, and concluded, “We look forward to working

with you and trying to accommodate any concerns you may have. Thank you for your

consideration.” Id.

                                              I

       I disagree that this letter prompted MCTI’s duty to defend. As noted, the title

policy provides that MCTI “will . . . defend the insured with respect to all demands and

legal proceedings founded upon a claim of title, encumbrance or defect which existed or

is claimed to have existed prior to the date hereof and is not set forth or excepted herein.”

Id. at 232. First, there was no lawsuit triggering the insurer’s duty to defend. This

court’s decisions and federal cases applying Washington law indicate that the insurer’s

duty to defend arises in the context of a lawsuit filed against the insured, which did not

occur here. This court explained at length in Woo v. Fireman’s Fund Ins. Co., 161

Wn.2d 43, 52-54, 164 P.3d 454 (2007), as follows:

               The rule regarding the duty to defend is well settled in Washington
       and is broader than the duty to indemnify. Hayden v. Mut. of Enumclaw
       Ins. Co., 141 Wn.2d 55, 64, 1 P.3d 1167 (2000). The duty to defend “arises
       at the time an action is first brought, and is based on the potential for
       liability.” Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 760,
       58 P.3d 276 (2002) (emphasis added). An insurer has a duty to defend
       “‘when a complaint against the insured, construed liberally, alleges facts
       which could, if proven, impose liability upon the insured within the
       policy’s coverage.’” Id. (quoting Unigard Ins. Co. v. Leven, 97 Wn. App.
       417, 425, 983 P.2d 1155 (1999)). An insurer is not relieved of its duty to

                                              3
No. 96726-1
Madsen, J., dissenting


       defend unless the claim alleged in the complaint is “clearly not covered by
       the policy.” Id. (citing Kirk v. Mt. Airy Ins. Co., 134 Wn.2d 558, 561, 951
       P.2d 1124 (1998)). Moreover, if a complaint is ambiguous, a court will
       construe it liberally in favor of “triggering the insurer’s duty to defend.” Id.
       (citing R.A. Hanson Co. v. Aetna Ins. Co., 26 Wn. App. 290, 295, 612 P.2d
       456 (1980)). In contrast, the duty to indemnify “hinges on the insured’s
       actual liability to the claimant and actual coverage under the policy.”
       Hayden, 141 Wn.2d at 64 (emphasis added). In sum, the duty to defend is
       triggered if the insurance policy conceivably covers the allegations in the
       complaint, whereas the duty to indemnify exists only if the policy actually
       covers the insured’s liability.
               “There are two exceptions to the rule that the duty to defend must be
       determined only from the complaint, and both the exceptions favor the
       insured.” Truck Ins., 147 Wn.2d at 761. First, if it is not clear from the
       face of the complaint that the policy provides coverage, but coverage could
       exist, the insurer must investigate and give the insured the benefit of the
       doubt that the insurer has a duty to defend. Id. Notice pleading rules,
       which require only a short and plain statement of the claim showing that the
       pleader is entitled to relief, impose a significant burden on the insurer to
       determine if there are any facts in the pleadings that could conceivably give
       rise to a duty to defend. Hanson, 26 Wn. App. at 294. Second, if the
       allegations in the complaint “‘“conflict with facts known to or readily
       ascertainable by the insurer,”’” or if “‘“the allegations . . . are ambiguous
       or inadequate,”’” facts outside the complaint may be considered. Truck
       Ins., 147 Wn.2d at 761 (quoting Atl. Mut. Ins. Co. v. Roffe, Inc., 73 Wn.
       App. 858, 862, 872 P.2d 536 (1994) (quoting E-Z Loader Boat Trailers,
       Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 908, 726 P.2d 439 (1986))).
       The insurer may not rely on facts extrinsic to the complaint to deny the duty
       to defend—it may do so only to trigger the duty. Id.

(Some emphasis added) (alteration in original) (footnote omitted). This court reiterated

these requirements in American Best Food, Inc. v. Alea London, Ltd., stating, “The duty

to defend is triggered if the insurance policy conceivably covers allegations in the

complaint.” 168 Wn.2d 398, 404, 229 P.3d 693 (2010) (citing Woo, 161 Wn.2d at 53)

(second emphasis added). “‘The duty to defend arises when a complaint against the

insured, construed liberally, alleges facts which could, if proven, impose liability upon



                                              4
No. 96726-1
Madsen, J., dissenting


the insured within the policy’s coverage.’” Id. at 404-05 (emphasis added) (internal

quotation marks omitted) (quoting Truck Ins. Exch., 147 Wn.2d at 760). Federal cases

applying Washington law cite the same rule linking the insurer’s duty to defend to the

filing of a complaint against the insured. See Hay v. Am. Safety Indem. Co., 752 F.

App’x. 460, 461 (9th Cir. 2018) (relying on the same “duty to defend arises” language

quoted above from Am. Best Food, 168 Wn.2d at 404-05); Or. Mut. Ins. Co. v. Seattle

Collision Ctr. Inc., 403 F. App’x. 249, 250-51 (9th Cir. 2010) (same); Nat’l Union Fire

Ins. Co. of Pittsburgh, Pa. v. Coinstar, Inc., 39 F. Supp. 3d 1149, 1156 (W.D. Wash.

2014) (same). As noted, there was no lawsuit filed against Robbins that would trigger

MCTI’s duty to defend. 1

                                               II

       Further, I disagree that the tribe submitted a “demand” sufficient to trigger the

insurer’s duty to defend. See majority at 9. As noted above, the insurer’s duty to defend

arises in the context of a lawsuit against the insured and no such suit is present in this

case. Further, the letter the tribe sent to Robbins merely informed the landowner of the

tribe’s plan to harvest clams on Robbins’ tidelands. It contains particulars and logistical

information about when and what to expect. The tribe’s letter is informational and lacks

the character of a demand, i.e., the assertion of a legal right. Such assertion is

demonstrated in the letter by Robbins’ attorney to the title insurer, which stated, “On

1
  After oral argument, Robbins filed a statement of additional authority citing Webb v. USAA
Cas. Ins. Co., ___ Wn. App. 2d ___, 457 P.3d 1258 (2020), but the Webb opinion concerned an
insurer who declined to defend an insured when a lawsuit was filed against the insured. That is
not the case here.

                                               5
No. 96726-1
Madsen, J., dissenting


behalf of the Robbins, I hereby tender and assert a claim against Mason County Title

Insurance Company and demand a defense pursuant to the policy of title insurance it

issued to the Robbins.” CP at 238. The tribe’s letter, as described above, contains no

similar “demand” language. See id. at 240-42.

       The majority relies on United Services Automobile Ass’n v. Speed, 179 Wn. App.

184, 317 P.3d 532 (2014) (USAA), as supporting its view that the tribe’s letter triggered

MCTI’s duty to defend. But that case is quite different from Robbins’ case. USAA

concerned an assault by an insured causing personal injuries to a victim during a road

rage incident. The victim’s attorney submitted a demand letter to the insured seeking

$650,000 in compensation for the victim’s injuries. 2 Id. at 189. Settlement negotiations

ensued, and the insured stipulated to entry of a $1.4 million judgment in exchange for the

victim’s covenant not to execute the judgment against the insured’s assets and the

assignment of all the insured’s potential claims (breach of contract, bad faith, etc.) against

USAA to the victim, who then pursued those claims against USAA. Id. at 192.

Ultimately, the Court of Appeals affirmed the trial court’s grant of summary judgment to

USAA, holding that USAA had no duty to defend because the incident did not amount to

an “accident” as required for coverage under either the insured’s homeowners or auto

policy. Id. at 189.




2
 The insured was criminally prosecuted for the incident, and a jury convicted him of third
degree assault. Id. at 191.

                                               6
No. 96726-1
Madsen, J., dissenting


       Relevant to the majority’s reliance on USAA, in that case, USAA’s homeowners

and auto policies provided that the insurer’s duty to defend arose both when a “suit” was

brought against the insured, and also when any “‘claim’ . . . for damages” was made

arising from acts covered under the policies. Id. at 195. Importantly, the insurer

conceded on appeal that the language in the policies triggered a duty to defend when the

victim asserted a claim against the insured. In light of that concession, the Court of

Appeals held, “Accordingly, here any duty to defend was triggered when Speed [the

victim] sent his demand letter to Geyer [the insured], and the duty to defend is based on

the allegations in that letter.” Id. The Court of Appeals went on to analyze the

allegations contained in the demand letter against the policy provisions and ultimately

determined that no duty to defend was triggered. In other words, under the particular

facts of USAA (including the insurer’s concession), there was no dispute as to the timing

of the availability of the duty to defend in USAA. The court then looked to the

allegations in the demand letter to determine if the duty to defend had been substantively

triggered under the policy provisions and determined that the insurer had no duty to

defend against the victim’s demand letter. Id. at 199-200.

       There is no similar concession here nor is there a similar demand letter from an

assault victim’s attorney asserting a claim for damages and seeking compensation. In my

view, the tribe’s informational letter as described above was not a demand triggering

MCTI’s duty to defend.




                                             7
No. 96726-1
Madsen, J., dissenting


                                              III

       Next, I disagree with the majority that no exception applies that would relieve

MCTI from its duty to defend. Majority at 11. As noted, the title policy expressly

excepts from coverage “public or private easements not disclosed by the public records.”

CP at 231.

       I specifically disagree with the majority’s view that as regards the presence of an

easement, an uncertainty is present here that would require construing the policy in favor

of coverage. Majority at 14-15. The majority describes the tribe’s treaty right to harvest

shellfish on Robbins’ tidelands as a profit à prendre and relies on the absence of a clear

demarcation between a profit and an easement as the relevant uncertainty that would

require construing the title policy in favor of coverage for the insured. The majority is

correct that an easement is defined as “‘a right to enter and use property for some

specified purpose.’” Majority at 12 (quoting Affil. FM Ins. Co. v. LTK Consulting Servs.,

Inc., 170 Wn.2d 442, 458, 243 P.3d 521 (2010) (plurality opinion)). And a profit à

prendre is defined as “‘the right to sever and to remove some substance from the land.’”

Id. (internal quotation marks omitted) (quoting Affil. FM Ins., 170 Wn.2d at 458). But

here the tribe’s treaty right to harvest shellfish on Robbins’ tidelands is not disputed.

Such harvesting necessarily includes entering Robbins’ tidelands, digging the clams, and

removing the clams from Robbins’ tidelands. Even if the tribe only attempted to harvest

but found no clams to remove, the tribe would still have entered and used Robbins’

tidelands for purposes of the harvest. That the harvest (even if unsuccessful) necessarily



                                              8
No. 96726-1
Madsen, J., dissenting


requires the entry and use of the tidelands establishes that the right asserted by the tribe

entails an easement. Regardless of how the removal of the shellfish may be

characterized, the necessity of entry and use of the tideland for purposes of the harvest is

crystal clear. There is no uncertainty that entry and use of the tideland (the definition of

an easement) is required under the tribe’s treaty right. For these reasons, I disagree with

the majority’s view that no easement is present for purposes of the policy exclusion noted

above.

          Because, in my view, an easement is present, I turn to the second element of the

relevant policy exclusion, whether the tribe’s asserted treaty right (which, as noted,

necessarily entails an easement) is “disclosed by the public records.” 3 CP at 231. I

disagree with Robbins’ view that the treaty’s existence in United States statutes is

sufficient to put the title insurer on notice of its existence and content. See Suppl. Br. of

Robbins at 12-13. The policy expressly excludes “public or private easements not

disclosed by the public records.” CP at 231. As noted, the policy defines “public

records” as “records which, under the recording laws, impart constructive notice with

respect to said real estate.” Id. at 232. In Washington, such public recording means

recorded at the county auditor’s office. For example, in Dave Robbins Construction, LLC

v. First American Title Co., 158 Wn. App. 895, 904-05, 249 P.3d 625 (2010), Division

One of the Court of Appeals held that a title insurer had no obligation to search the

Washington historical register before issuing a title policy. As here, “public records” was


3
    The majority did not reach this issue. See majority at 15 n.9.

                                                   9
No. 96726-1
Madsen, J., dissenting


defined as “those records established for the purpose of imparting constructive notice of

matters relating to real property to potential purchasers.” Id. at 904. The listing of

property on the state heritage register (rather than with the county auditor) was

insufficient to impart constructive notice of matters relating to real property to potential

purchasers. In so holding, Division One relied on this court’s decision in Ellingsen v.

Franklin County, 117 Wn.2d 24, 27, 810 P.2d 910 (1991), explaining as follows:

              In Ellingsen, Franklin County claimed a conveyance of an easement
       gave constructive notice to a bona fide purchaser when that conveyance
       was filed in the county engineer’s office, even though it was not recorded
       with the county auditor. The Supreme Court disagreed, holding this
       interpretation would render title searches impossible and useless:
                      Under the County’s theory all records of these
              multiple, scattered public offices would impart constructive
              notice of everything contained in those records because, like
              the engineer’s office, those are public records in public
              offices. . . . To import constructive notice from every piece
              of paper or computer file in every government office, from
              the smallest hamlet to the largest state agency, would wreak
              havoc with the land title system. As a matter of fact, it would
              render impossible a meaningful title search.
       Ellingsen, 117 Wn.2d at 29-30. For this reason, the court held that to give
       constructive notice of matters relating to real property, a statute must
       specifically declare the statute is intended to give constructive notice. Id. at
       27. “In the absence of such declaration there is no constructive notice.” Id.
       Here, the statute establishing the Washington heritage register contains no
       declaration it is intended to provide constructive notice to potential
       purchasers of real property, and as such, it does not provide such notice.
       The list of properties kept in the Washington heritage register therefore is
       not a “Public Record” under the policy, and the trial court properly
       dismissed the claim [against the insurer].

Dave Robbins Constr., 158 Wn. App. at 905 (first alteration in original). The same is

true here; as noted, the title insurance policy at issue excludes from coverage

encumbrances that are not disclosed in the public record, meaning not recorded with the

                                              10
No. 96726-1
Madsen, J., dissenting


county auditor. The tribe’s treaty rights were not recorded with the county auditor and,

thus, were excluded from the title policy by its express terms.

       For the reasons discussed above, in my view, MCTI had no duty to defend based

on the tribe’s letter to Robbins. Accordingly, I dissent.




                                                                    u




                                             11
No. 96726-1
(Gordon McCloud, J., concurring in dissent)




                                     No. 96726-1


      GORDON McCLOUD, J. (concurring in dissent)—I agree with the majority

that an insurance contract may contain a term that requires the insurer to “defend”

an insured against “demands” even before a complaint is filed. Majority at 8-10. I

also agree with the majority that the insurance policy at issue here contained such a

term: the policy states that insurer Mason County Title Insurance Company

(MCTI) “will … defend the insured with respect to all demands and legal

proceedings founded upon a claim [of certain types].” Clerk’s Papers at 232

(emphasis added).

         But the dissent is correct that there was no such “demand” made in this

case and, hence, there was no duty placed on MCTI to “defend.” Rather, the

Squaxin Island Tribe sent Leslie and Harlene Robbins (collectively Robbins) a

letter giving the background of its rights under the 1854 Treaty of Medicine Creek

along with its plan to exercise those treaty rights in the future. Dissent at 3-7.

                                           1
No. 96726-1
(Gordon McCloud, J., concurring in dissent)


          I would end the analysis there. Specifically, I do not join the dissent’s

further assertion that the treaty is “not disclosed in the public record.” Dissent at

10 (Squaxin Island Tribe’s treaty rights are “not disclosed in the public record,

meaning not recorded with the county auditor.”). This limitation on the

authoritativeness, breadth, and public nature of Indian treaties like the one at issue

here contradicts controlling case law.

      Actually, treaties—including treaties between the United States government

and an Indian tribe—constitute the “supreme law of the land.” State v. Buchanan,

138 Wn.2d 186, 201, 978 P.2d 1070 (1999) (“[A] treaty with Indians is the

supreme law of the land and is binding on the State until Congress limits or

abrogates the treaty.” (citing U.S. CONST. art. VI; Antoine v. Washington, 420 U.S.

194, 201, 95 S. Ct. 944, 43 L. Ed. 2d 129 (1975); State v. McCormack, 117 Wn.2d

141, 143, 812 P.2d 483 (1991))). That means “A treaty [with a Tribe] constitutes

an express federal law.” Cougar Den, Inc. v. Dep’t of Licensing, 188 Wn.2d 55,

60, 392 P.3d 1014 (2017), aff’d, __ U.S. __, 139 S. Ct. 1000, 203 L. Ed. 2d 301

(2019).

      To be sure, many laws—like zoning and other local laws—might well

constitute matters outside the “public record” as defined here. But the treaty in this

case—which is an “express federal law” and the “supreme law of the land”—is

different. The treaty at issue here contains an explicit retention (not a conveyance)
                                           2
No. 96726-1
(Gordon McCloud, J., concurring in dissent)


of a property right (not a regulation) in the original owner (not a transferee). No

recording was necessary to make that a matter of public record for all purposes.

         I therefore concur in the dissent.




                                          3
