Perez-Crisantos v. State Farm Fire & Cas. Co. ( 2017 )


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    at      ;£:QQ onfih 2)'Dlj
    Ocro
    ~~ SUSAN L. CARLSON
    SUPREME COURT CLERK
    IN THE SUPREME COURT OF THE STATE OF WASHINGTON
    ISIDORO PEREZ-CRISANTOS,           )
    a single man,                      )
    )
    Appellant,     )          No. 92267-5
    )
    v.                          )
    )          EnBanc
    STATE FARM FIRE AND                )
    CASUALTY COMPANY,                  )
    a foreign insurance company, and   )
    DOE CORPORATIONS I through V, )
    )
    Respondents.   )          Filed FEB 0 2   2017
    ___ )
    GONZALEZ, J. - In 2007, the legislature passed, and the voters of this
    state ratified, the Insurance Fair Conduct Act (IFCA), RCW 48.30.015.
    IFCA gives insureds a new cause of action against insurers who
    unreasonably deny coverage or benefits. RCW 48.30.015(1). IFCA also
    directs courts to grant attorney fees and authorizes courts to award triple
    damages if the insurer either acts unreasonably or violates certain insurance
    regulations. RCW 48.30.015(2)-(3), (5). These regulations broadly address
    unfair practices in insurance, not just unreasonable denials of coverage or
    For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
    Perez-Crisantos v. State Farm, No. 92267-5
    benefits. RCW 48.30.015(5). We are asked to decide whether IFCA also
    created a new and independent private cause of action for violation of these
    regulations in the absence of any unreasonable denial of coverage or
    benefits. 1 We conclude it did not and affirm.
    FACTS
    In November 2010, Isidoro Perez-Crisantos was waiting to turn left
    off snowy Wellesley Avenue in Spokane when his car was struck from
    behind by Martin Reyes. Clerk's Papers (CP) at 5, 391. Perez-Crisantos
    was injured and incurred more than $50,000 in medical bills that he contends
    were the result of the accident. Perez-Crisantos had first party personal
    injury protection (PIP) and underinsured motorist insurance (UIM) coverage
    from State Farm Fire and Casualty Company. State Farm paid the PIP
    coverage limits of $10,000 in medical expenses and $400 in lost wages.
    Reyes carried $25,000 in liability insurance. Perez-Crisantos settled with
    Reyes for his policy limits and made a first party UIM claim to State Farm
    for the remaining damages resulting from the accident.            State Farm did not
    pay benefits under the UIM policy. According to Perez-Crisantos, State
    1
    The concurrence objects to the way we have framed the issue, suggesting that this
    caused us to stray from the language and intent of IF CA. But it is the concurrence that
    strays from RCW 48.30.015. Rather than insert language into the statute that the
    legislature purposefully omitted, our decision comports with the actual language ofRCW
    48.30.015 and is framed consistently with the way the parties have framed the issue.
    2
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    Perez-Crisantos v. State Farm, No. 92267-5
    Farm denied his UIM claim after its adjustor, who was not a medical expert,
    concluded that Perez-Crisantos was seeking benefits for excessive
    chiropractic treatment and an unrelated shoulder surgery. According to State
    Farm, it has "not denied underinsured motorist benefits to Mr. Perez-
    Crisantos. It does disagree with the valuation [counsel] has placed on his
    claim." CP at 386. Either way, after Perez-Crisantos objected to the denial,
    State Farm sent the file to a doctor, who concurred with the lay adjustor's
    conclusions.
    Perez-Crisantos sued on a variety of grounds. Among other things, he
    alleged that State Farm had violated IFCA, several of IFCA' s implementing
    regulations, and the Consumer Protection Act (CPA), chapter 19.86 RCW.
    He also brought bad faith and negligence claims. Most of the claims were
    stayed while the UIM claim was sent to arbitration. The arbiter largely
    found for Perez-Crisantos. Based on the damages awarded, it appears the
    arbiter concluded the shoulder injury was related to the accident, disallowed
    some of the chiropractic physical therapy treatments as excessive, and
    awarded Perez-Crisantos a gross amount of about $51,000. After adjusting
    for Reyes's settlement, PIP benefits, and attorney fees, Perez-Crisantos
    received about $24,000 from the UIM arbitration. The court lifted the stay,
    and Perez-Crisantos amended his complaint to make clear he was alleging an
    3
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    Perez-Crisantos v. State Farm, No. 92267-5
    IFCA claim based on the violation of IFCA regulations relating to unfair
    settlement practices. Specifically, he alleged that State Farm forced him to
    litigate in order to get payments that were due to him.
    Meanwhile, Perez-Crisantos sought discovery about State Farm's
    incentive programs and the personnel files of State Farm employees
    involved in processing his claim, apparently seeking evidence that State
    Farm's incentive program was improperly encouraging its employees to
    deny claims or settle them for unreasonably low amounts. While it is not in
    the record, it appears State Farm provided discovery on the incentive
    programs but resisted release of the personnel files. The trial court allowed
    some discovery about the employee compensation and reviewed some
    materials under seal. The judge declined to order State Farm to release the
    personnel files themselves, finding Perez-Crisantos had not made a
    sufficient showing.
    State Farm moved for summary judgment dismissal, largely on the
    merits. It argued that there was no genuine dispute that it had acted
    reasonably and in good faith throughout the claims process, that Perez-
    Crisantos had not alleged a cognizable claim, and that the parties merely had
    a reasonable disagreement about the value of the claim. Unfortunately, the
    record does not reveal State Farm's valuation of the UIM claim. Relying
    4
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    Perez-Crisantos v. State Farm, No. 92267-5
    largely on unreported cases out of federal court, State Farm argued that a
    delay in payment of UIM benefits until after arbitration is not a denial of
    payment under IFCA. CP at 56-57 (citing Beasley v. State Farm Mut. Auto.
    Ins. Co., 
    2014 WL 1494030
    , at *6 (W.D. Wash. Apr. 16, 2014) and Country
    Preferred Ins. Co. v. Hurless, 
    2012 WL 2367073
    , at *4 (W.D. Wash. June
    21, 2012)). Perez-Crisantos moved for partial summary judgment,
    contending that State Farm had violated WAC 284-30-330(7)'s prohibition
    on making a first party claimant litigate to recover '"amounts due under an
    insurance policy by offering substantially less than the amounts ultimately
    recovered in such actions.'" CP at 104 (quoting WAC 284-30-330(7)). He
    also argued that State Farm's summary judgment motion was premature
    because discovery on State Farm's employee incentive program was not
    complete.
    At the summary judgment hearing, the trial judge took issue with
    Perez-Crisantos's characterizing State Farm as having "made a zero offer"
    on the UIM claim. Verbatim Report of Proceedings (VRP) at 10-11. In the
    judge's view, "it verges on being misleading in terms of trying to evaluate
    whether or not you have a basis for a summary judgment." Id. at 11.
    Instead, the judge characterized State Farm as arguing that Perez-Crisantos
    had been fully compensated for his injuries from Reyes's policy limits and
    5
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    Perez-Crisantos v. State Farm, No. 92267-5
    State Farm's PIP payment. She concluded that "[t]here has never been one
    scintilla of evidence" that State Farm's actions were "unreasonable and there
    must have been some ulterior motive" for them, such as "some sort of
    incentive program to 'lowball claims."' ld. at 27. She dismissed the case
    with prejudice on the merits. Perez-Crisantos sought direct review, which
    we granted.
    ANALYSIS
    This case is before us on appeal from summary judgment and asks us
    to interpret a statute. Our review of both is de novo. Auto. United Trades
    Org. v. State, 
    183 Wn.2d 842
    , 853-54,
    357 P.3d 615
     (2015) (citing
    Freeman v. State, 
    178 Wn.2d 387
    , 393, 
    309 P.3d 437
     (2013); Lummi Indian
    Nation v. State, 
    170 Wn.2d 247
    , 257-58, 
    241 P.3d 1220
     (2010)). Summary
    judgment "may be granted if the pleadings, affidavits, and depositions
    before the trial court establish that there is no genuine issue of material fact
    and that as a matter of law the moving party is entitled to judgment." Ruffv.
    County ofKing, 
    125 Wn.2d 697
    ,703,
    887 P.2d 886
     (1995) (citing Dickinson
    v. Edwards, 
    105 Wn.2d 457
    , 461, 
    716 P.2d 814
     (1986)).
    1. IFCA CAUSE OF ACTION
    For many years, insureds have been able to sue their insurers for
    violations of certain insurance regulations in a CPA or bad faith action. See
    6
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    Perez-Crisantos v. State Farm, No. 92267-5
    Truck Ins. Exch. v. VanPort Homes, Inc., 
    147 Wn.2d 751
    ,764, 
    58 P.3d 276
    (2002); Indus. Indemn. Co. v. Kallevig, 
    114 Wn.2d 907
    , 921-22, 
    792 P.2d 520
     (1990). We must decide whether first party insureds can also sue their
    insurance companies under IFCA for regulatory violations. This requires us
    to determine the legislature's intent, which in this case includes the intent of
    the voters who ultimately ratified IFCA. Dep 't ofEcology v. Campbell &
    Gwinn, LLC, 
    146 Wn.2d 1
    , 9-10, 
    43 P.3d 4
     (2002) (citing State v. J.M., 
    144 Wn.2d 472
    , 480, 
    28 P.3d 720
     (2001)); see also Parents Involved in Cmty.
    Sch. v. Seattle Sch. Dist. No. 1, 
    149 Wn.2d 660
    , 671, 
    72 P.3d 151
     (2003)
    (citing State v. Thorne, 
    129 Wn.2d 736
    ,763, 
    921 P.2d 514
     (1996)). If the
    statute, read in the context of all the legislature has said on the subject, is
    plain on its face, we will give it that plain meaning. Campbell & Gwinn,
    146 Wn.2d at 11-12. If after reading the statute in context, it "remains
    susceptible to more than one reasonable meaning, the statute is ambiguous
    and it is appropriate to resort to aids to construction, including legislative
    history." !d. at 12 (citing Cockle v. Dep 't ofLabor & Indus., 
    142 Wn.2d 801
    , 808, 
    16 P.3d 583
     (2001)).
    RCW 48.30.015 says in most relevant part:
    (1) Any first party claimant to a policy of insurance who is
    unreasonably denied a claim for coverage or payment of benefits by
    an insurer may bring an action in the superior court of this state to
    recover the actual damages sustained, together with the costs of the
    7
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    Perez-Crisantos v. State Farm, No. 92267-5
    action, including reasonable attorneys' fees and litigation costs, as set
    forth in subsection (3) of this section.
    (2) The superior court may, after finding that an insurer has
    acted unreasonably in denying a claim for coverage or payment of
    benefits or has violated a rule in subsection (5) of this section,
    increase the total award of damages to an amount not to exceed three
    times the actual damages.
    (3) The superior court shall, after a finding of unreasonable
    denial of a claim for coverage or payment of benefits, or after a
    finding of a violation of a rule in subsection (5) of this section, award
    reasonable attorneys' fees and actual and statutory litigation costs,
    including expert witness fees, to the first party claimant of an
    insurance contract who is the prevailing party in such an action.
    (5) A violation of any of the following is a violation for the
    purposes of subsections (2) and (3) of this section:
    (a) WAC 284-30-330, captioned "specific unfair claims
    settlement practices defined."
    The relationship between subsections (2), (3), and (5) is, as Judge
    Peterson put it, "vexing." Workland & Witherspoon, PLLC v. Evanston Ins.
    Co., 
    141 F. Supp. 3d 1148
    , 1155 (E.D. Wash. 2015). Subsections (2) and (3)
    give the trial court the discretion to award triple damages and directs that it
    award attorney fees if the insurer is found to have acted unreasonably or
    violated listed insurance regulations. Subsection (5) lists the relevant
    regulations. But given that the trier of fact must find that the insurer acted
    unreasonably under subsection (1 ), and that such a finding mandates
    8
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    Perez-Crisantos v. State Farm, No. 92267-5
    attorney fees under subsection (3) and gives the trial court discretion to
    award treble damages under subsection (2), it is not clear what a finding of a
    regulatory violation accomplishes.
    The regulations in question are long-standing and have long been
    enforceable by the insurance commissioner, and, in some cases, by first
    party insureds in bad faith or CPA actions. LAWS OF 1947, ch. 79 § 30.01
    (partially codified at RCW 48.30.010); Wash. St. Reg. 78-08-082 (Aug. 16,
    1978); Truck Ins. Exch., 
    147 Wn.2d at 764
    ; Kallevig, 
    114 Wn.2d at 921-22
    .
    These regulations largely direct insurance companies to act fairly and
    promptly. WAC 284-30-330, -350, -360, -370, -380. The violation of some
    of these regulations could themselves be potentially actionable under IFCA
    for that reason. See, e.g., WAC 284-30-330( 4) (declaring "[r]efusing to pay
    claims without conducting a reasonable investigation" unfair). The violation
    of some of these regulations are not necessarily enough, on their own, to be
    actionable. For example, insurers are required to respond within 10 working
    days to "communications from [an individual] claimant reasonably
    suggesting that a response is expected." WAC 284-30-360(3). This would
    be violated by a response on the 11th day.
    Perez-Crisantos argues that State Farm compelled him to litigate his
    UIM claim through "a pre-suit offer of $0," CP at 104, which, he contends,
    9
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    Perez-Crisantos v. State Farm, No. 92267-5
    violated insurance regulations that deem it unfair or deceptive to "[c]ompel[]
    a first party claimant to initiate or submit to litigation, arbitration, or
    appraisal to recover amounts due under an insurance policy by offering
    substantially less than the amounts ultimately recovered in such actions or
    proceedings." WAC 284-30-330(7). He contends that this regulatory
    violation is independently actionable under IFCA. State Farm contends that
    the statute clearly sets forth the basis for private causes of action and those
    causes of action do not include regulatory violations.
    Local federal courts have split on this question. 2 For example, last
    year, one judge found that IFCA does create an implied cause of action
    under Washington law for violation of the listed regulations. Langley v.
    GEICO Gen. Ins. Co., 
    89 F. Supp. 3d 1083
    , 1085 (E.D. Wash. 2015).
    Another judge on the same bench found it did not. Workland, 141 F. Supp.
    3d at 1156.
    Perez-Crisantos urges us to follow the Langley decision. 3 In Langley,
    the court applied the three-part test set forth in Bennett v. 1-lardy, 
    113 Wn.2d 2
    A learned practitioner has observed that IFCA cases tend to be heard in federal court
    sitting in diversity jurisdiction. Shannon M. Kilpatrick, Sounding the Alarm: Is Diversity
    Jurisdiction Interfering with Washington State's Development ofits Own Body of Law
    Related to the Insurance Fair Conduct Act?, 49 GONZ. L. REv. 553, 554 (2014). Many of
    the cases are unreported.
    3
    Perez-Crisantos also cites three cases for the proposition that recent federal cases allow
    IFCA claims based on regulatory violations. Appellant's Br. at 22 (citing Merrill v.
    Crown Life Ins. Co., 
    22 F. Supp. 3d 1137
     (E.D. Wash. 2014); Hell Yeah Cycles v. Ohio
    10
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    Perez-Crisantos v. State Farm, No. 92267-5
    912, 920-21, 
    784 P.2d 1258
     (1990) and concluded that IFCA contains an
    implied cause of action for violation of the listed regulations. Langley, 89 F.
    Supp. 3d at 1089. Under that test, "we must resolve the following issues:
    first, whether the plaintiff is within the class for whose 'especial' benefit the
    statute was enacted; second, whether legislative intent, explicitly or
    implicitly, supports creating or denying a remedy; and third, whether
    implying a remedy is consistent with the underlying purpose of the
    legislation." Bennett, 113 Wn.2d at 920-21 (quoting In re Wash. Pub.
    Power Supply Sys. Sec. Litig., 
    823 F.2d 1349
    , 1353 (9th Cir. 1987)). The
    Langley opinion concluded that the plaintiff was '"within the class for whose
    especial benefit the statute was enacted."' Langley, 89 F. Supp. 3d at 1089
    (quoting Bennett, 113 Wn.2d at 920). As Langley properly noted, the
    specific purpose of IFCA was to provide insureds with another legal
    resource against their insurer for wrongful denials. I d. The opinion
    concluded that the implied remedy is consistent with IFCA's purpose of
    protecting insureds. I d. at 1090-91 (citing Trinity Universal Ins. Co. ofKan.
    v. Ohio Cas. Ins. Co., 
    176 Wn. App. 185
    ,201,
    312 P.3d 976
     (2013)).
    Sec. Ins. Co., 
    16 F. Supp. 3d 1224
     (E.D. Wash. 2014); Hover v. State Farm Mut. Auto.
    Ins. Co., 
    2014 WL 4239655
     (E.D. Wash. 2014)). All three cases say in passing that an
    IFCA claim can be based on a regulatory violation, but none explain or apply that
    statement. Merrill, 22 F. Supp. 3d at 1148; Hell Yeah Cycles, 16 F. Supp. 3d at 1235-36;
    Hover, 
    2014 WL 4239655
    , at *4. We do not find them illuminating.
    11
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    Perez-Crisantos v. State Farm, No. 92267-5
    We respectfully disagree with the Langley opinion that legislative
    intent supports creating an implicit IFCA cause of action. IFCA explicitly
    creates a cause of action for first party insureds who were "unreasonably
    denied a claim for coverage or payment ofbenefits." RCW 48.30.015(1).
    IFCA does not state it creates a cause of action for first party insureds who
    were unreasonably denied a claim for coverage or payment of benefits or
    "whose claims were processed in violation of the insurance regulations listed
    in (5)," which strongly suggests that IFCA was not meant to create a cause
    of action for regulatory violations. '" [W]here a statute specifically
    designates the things upon which it operates, there is an inference that the
    Legislature intended all omissions."' State v. LG Elecs., Inc., 
    186 Wn.2d 1
    ,
    9, 
    375 P.3d 636
     (2016) (quoting In re Pers. Restraint ofHopkins, 
    137 Wn.2d 897
    , 901, 
    976 P.2d 616
     (1999)). And where the legislature includes
    particular language in one section of a statute but omits it in another, the
    exclusion is presumed intentional. Millay v. Cam, 
    135 Wn.2d 193
    , 202, 
    955 P.2d 791
     (1998).
    We recognize that IFCA is ambiguous, and as it is ambiguous, courts
    have appropriately turned to extrinsic evidence of legislative intent. See
    Campbell & Gwinn, LLC, 146 Wn.2d at 12 (citing Cockle, 142 Wn.2d at
    12
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    Perez-Crisantos v. State Farm, No. 92267-5
    808). The Langley court found evidence of legislative intent in the 2007
    Voters' Pamphlet, which explained that
    "ESSB 5726 would authorize any first party claimant to bring a
    lawsuit in superior court against an insurer for unreasonably denying a
    claim for coverage or payment of benefits, or violation of specified
    insurance commissioner unfair claims handling practices regulations,
    to recover damages and reasonable attorney fees, and litigation costs."
    Langley, 89 F. Supp. 3d at 1090 (emphasis added) (quoting Explanatory
    Statement, Referendum Measure 67, State of Washington Voters Pamphlet,
    General Election 14 (Nov. 6, 2007)). This court has considered the official
    voter's pamphlet to determine the meaning of initiatives before. Parents
    Involved in Cmty. Sch., 
    149 Wn.2d at
    671 (citing Thorne, 
    129 Wn.2d at 763
    ). The Langley court reasonably found the emphasized language
    evidence of legislative intent to create a private cause of action for violation
    of insurance regulations. See also FINAL B. REP. ON ENGROSSED SUBSTITUTE
    S.B. 5726, at 1-2, 60th Leg., Reg. Sess. (Wash. 2007) (noting that under the
    act, "[a] plaintiff may also recover damages upon a finding that the insurer
    violated one of five rules adopted by the Office of the Insurance
    Commissioner").
    However, as amicus curiae the American Insurance Association notes,
    the ballot title that would have been in front of voters as they voted on IFCA
    13
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    Perez-Crisantos v. State Farm, No. 92267-5
    did not suggest IFCA creates private cause of action for regulatory
    violations. The official ballot title said:
    The legislature passed Engrossed Substitute Senate Bill 5726 (ESSB
    5726) concerning insurance fair conduct related to claims for
    coverage or benefits and voters have filed a sufficient referendum
    petition on this bill.
    This bill would make it unlawful for insurers to unreasonably deny
    certain coverage claims, and permit treble damages plus attorney fees
    for that and other violations. Some health insurance carriers would be
    exempt.
    StateofWashington Voters Pamphlet, General Election 13 (Nov. 6, 2007),
    http://www.sos.wa.gov/_assets/elections/Voters'%20Pamphlet%202007.pdf,
    [https://perma.cc/9QB9-Y9QU].         This language does not suggest an intent
    to create a private cause of action for regulatory violations. Quite the
    opposite: it suggests that IFCA creates a cause of action for unreasonable
    denials of coverage and also permits treble damages in some circumstances.
    On balance, we conclude that the legislative history suggests that IFCA does
    not create a cause of action for regulatory violations.
    We recognize that the pattern jury committee recently came to the
    opposite conclusion. The pattern jury instruction for an IFCA claim
    provides:
    (Name of plaintiff) claims that (name of insurer) has violated
    the Washington Insurance Fair Conduct Act. To prove this claim,
    (name of plaintiff) has the burden of proving each of the following
    propositions:
    14
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    Perez-Crisantos v. State Farm, No. 92267-5
    (1) That (name of insurer) [unreasonably denied a claim for
    coverage] [unreasonably denied payment of benefits] [or]
    [violated a statute or regulation governing the business of
    insurance claims handling];
    (2) That (name ofplaintiff) was [injured] [damaged]; and
    (3) That (name of insurer's) act or practice was a proximate
    cause of(name ofplaintiff'§} [injury] [damage].
    If you find from your consideration of all of the evidence that
    each of these propositions has been proved, your verdict [on this
    claim] should be for (name of plaintiff). On the other hand, if any of
    these propositions has not been proved, your verdict [on this claim]
    should be for (name of insurer).
    6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
    CNIJ_, 320.06.01 (6th ed. 2013 Supp.) (alterations in original). Put another
    way, the pattern jury committee concluded that IFCA created a cause of
    action if an insurer "unreasonably denied a claim for coverage," or
    "unreasonably denied payment of benefits," or "violated a statute or
    regulation governing the business of insurance claims handling." !d.
    (emphasis added). That last alternative contemplates, at least, violations of
    the regulations listed in RCW 48.30.015(5).
    But jury instn1ctions are not the law. State v. Brush, 
    183 Wn.2d 550
    ,
    557, 
    353 P.3d 213
     (2015). It is not at all clear that implying a cause of
    action is consistent with the legislature's intent as expressed in the actual
    statutory language. As the Workland opinion observed in rejecting the claim
    15
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    Perez-Crisantos v. State Farm, No. 92267-5
    that IFCA made regulatory violations actionable, "If the legislature truly
    intended to create a third IFCA cause of action arising out of subsection (5),
    they would have utilized the same or similar language as in subsection (1)."
    Workland, 141 F. Supp. 3d at 1155. See also Morella, 
    2013 WL 1562032
    ,
    at *3 n.2 (rejecting similar claim); Hurless, 
    2012 WL 2367073
    , at *3-4
    (same); Cardenas v. Navigators Ins. Co., 
    2011 WL 6300253
    , at* 6 (W.D.
    Wash. Dec.16, 2011) (same). Instead, IFCA makes regulatory violations
    relevant to the apportioned attorneys' fees and damages associated with that
    derivative violation. See Mut. ofEnumclaw Ins. Co. v. Myong Suk Day, No.
    75633-8-I, 
    2016 WL 7210718
    , at *8 (Wash. Ct. App. Dec. 12, 2016)
    (apportioning attorney fees based on the issues prevailed upon at appeal).
    This interpretation is consistent with our canons of statutory construction
    prohibiting us from reading language into subsection (1) that the legislature
    expressly omitted and from rendering any portion of subsections (2) and (3)
    superfluous. Moreover, this interpretation is consistent with existing
    precedent and avoids absurd results.    We note that the only reported
    Washington state case on IFCA described the statute consistently with
    Workland. See Ainsworth v. Progressive Cas. Ins. Co., 
    180 Wn. App. 52
    ,
    79,
    322 P.3d 6
     (2014). Ainsworth notes that "[s]ubsection (1) describes two
    separate acts giving rise to an IFCA claim. The insured must show that the
    16
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    Perez-Crisantos v. State Farm, No. 92267-5
    insurer unreasonably denied a claim for coverage or that the insurer
    unreasonably denied payment of benefits. If either or both acts are
    established, a claim exists under IFCA." 
    Id.
     (citing RCW 48.30.015).
    Finally, we note that it is unlikely the legislature would have intended to
    create a private cause of action for violation of only some of the specific
    regulations listed in RCW 48.30.015(5). For example, if we found that
    violation of regulations listed in IFCA was independently actionable, then
    "[m]aking a claim payment to a first party claimant or beneficiary not
    accompanied by a statement setting forth the coverage under which the payment
    is made," not responding until the 11th working day to "pertinent
    communications from a claimant reasonably suggesting that a response is
    expected," and notifying a claimant on the 16th day that a claim had been
    accepted would all be actionable even if the insured was never unreasonably
    denied coverage or the payment of benefits. See WAC 284-30-330(9), -360(3),
    -380(1 ).
    We conclude that IFCA does not create an independent cause of
    action for regulatory violations. 4
    4
    The concurrence, purporting to avoid confusion surrounding IFCA's purpose and
    scope, instead would perpetuate the confusion that already exists. Compare
    Langley, 
    89 F. Supp. 3d 1083
     (implied cause of action), with Workland, 
    141 F. Supp. 3d 1148
     (no implied cause of action). It simply prefers the current
    confusion to a clear holding that subsections (2), (3), and (5) ofiFCA do not
    17
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    Perez-Crisantos v. State Farm, No. 92267-5
    2. SUMMARY JUDGMENT
    Perez-Crisantos argues that summary judgment dismissal of his claims
    was inappropriate because there were material facts in dispute. He also
    contends that his partial summary judgment motion should have been
    granted and that more discovery into State Farm's incentive programs was
    required. The trial judge dismissed the case on the merits because she
    concluded that State Farm had acted reasonably and that State Farm had not
    '"lowball[ ed]' their insured such that their insured was required to litigate."
    VRP at 24.
    Disparity between an offer and an arbitration award alone does not
    establish a violation of WAC 284-30-330(7). Am. Mfrs. Mut. Ins. Co. v.
    Osborn, 
    104 Wn. App. 686
    , 701, 
    17 P.3d 1229
     (2001) (citing Keller v.
    Allstate Ins. Co., 
    81 Wn. App. 624
    , 
    915 P.2d 1140
     (1996)). There has to be
    something more. !d. In this case, Perez-Crisantos suggests that something
    more can be found in the fact PIP benefits were allowed based on the same
    evidence and his suspicion that the incentive program created bad incentives.
    But State Farm never disputed that some ofPerez-Crisantos's injuries came
    from the accident; it is not necessarily inconsistent for an insurer to pay the
    one and balk at the other based on its valuation of the claim. The fact State
    create an independent implied cause of action in addition to that expressly created
    in subsection (1 ).
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    Perez-Crisantos v. State Farm, No. 92267-5
    Farm paid PIP benefits is not sufficient to create a material question of fact
    that State Farm violated insurance regulations by rejecting some ofPerez-
    Crisantos' s UIM claim.
    As to the CPA claim, in order to prevail "a plaintiff must establish
    five distinct elements: (1) unfair or deceptive act or practice; (2) occurring in
    trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or
    her business or property; (5) causation." Hangman Ridge Training Stables,
    Inc. v. Safeco Title Ins. Co., 
    105 Wn.2d 778
    , 780, 
    719 P.2d 531
     (1986). A
    CPA claim can be predicated on a violation of WAC 284-30-330. Kallevig,
    
    114 Wn.2d at 923
     ("A violation of WAC 284-30-330 constitutes a violation
    ofRCW 48.30.010(1), which in turn constitutes a per se unfair trade practice
    by virtue of the legislative declaration in RCW 19.86.170."). State Farm
    agrees that an insured can establish the first and second elements of a CPA
    claim by showing the insurer violated one of the relevant WAC provisions.
    But State Farm contends that Perez-Crisantos has failed to make that
    showing because he did not present a genuine issue of fact that it violated
    any provision of WAC 284-30-330. We agree. Even taking the facts in the
    light most favorable to Perez-Crisantos, as we must, he has not shown a
    genuine issue that State Farm acted unreasonably.
    19
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    Perez-Crisantos v. State Farm, No. 92267-5
    Perez-Crisantos also argues that summary judgment was premature
    because more discoveryinto State Farm's incentive programs was needed.
    State Farm argues that Perez-Crisantos failed to object to summary judgment
    on the record before the trial court. State Farm observes, correctly, that a
    party can move for summary judgment before discovery is complete: "A
    trial court may continue a summary judgment hearing if the nonmoving
    party shows a need for additional time to obtain additional affidavits, take
    depositions, or conduct discovery." Bldg. Indus. Ass 'n of Wash. v.
    McCart~y,   
    152 Wn. App. 720
    , 742, 
    218 P.3d 196
     (2009) (citing CR 56(f)).
    "The trial court may deny a motion for a continuance when (1) the
    requesting party does not have a good reason for the delay in obtaining the
    evidence, (2) the requesting party does not indicate what evidence would be
    established by further discovery, or (3) the new evidence would not raise a
    genuine issue of fact." Butler v. Joy, 
    116 Wn. App. 291
    , 299, 
    65 P.3d 671
    (2003) (citing Tellevik v. 31641 W. Rutherford St., 
    120 Wn.2d 68
    , 90, 
    838 P.2d 111
    , 
    845 P.2d 1325
     (1992)). At the summary judgment hearing, the
    trial judge specifically declined to allow more discovery into personnel files
    of State Farm employees because she found insufficient evidence that such
    an intrusion was appropriate to show the incentive program was having a
    malign effect on claims processing. Perez-Crisantos did not specifically
    20
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    Perez-Crisantos v. State Farm, No. 92267-5
    assign error to that ruling or show that it was in error. Given the facts
    before trial judge at the time of summary judgment, we find no error. 5
    CONCLUSION
    We hold that an IFCA claim cannot be predicated on a regulatory
    violation alone. We find that summary judgment was appropriately granted
    and affirm.
    5 Perez-Crisantos's motion for attorney fees under RCW 48.30.015(3) and RCW
    19.86.090 is denied.
    21
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    Perez-Crisantos v. State Farm, No. 92267-5
    WE CONCUR:
    22
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    Perez-Crisantos v. State Farm Fire & Casualty Co.
    No. 92267-5
    STEPHENS, J. (concurring in result only)-In 2007, the legislature enacted
    and the people ratified the Insurance Fair Conduct Act (IFCA), RCW 48.30.015, to
    strengthen the remedies and penalties available for the unfair handling of first-party
    insurance claims. To date, litigation under IFCA has proceeded mainly in federal
    court, with this case marking the first time this court has been asked to entertain
    arguments as to the statute's meaning. Encouraged by amici, the majority embraces
    this opportunity to offer an interpretation, even though interpreting IFCA is
    unnecessary and irrelevant to the resolution of this case.
    We should await an appropriate case before taking such a significant step, and
    instead resolve this appeal on the grounds reached below. The superior court
    dismissed this case on summary judgment because the plaintiff could not establish a
    violation ofWashington Administrative Code (WAC) 284-30-330(7). The majority
    affirms this holding. It is therefore entirely unnecessary to decide whether a WAC
    For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
    Perez-Crisantos v. State Farm Fire & Casualty Co., 92267-5
    (Stephens, J., concurring in result only)
    violation gives rise to an implied cause of action under IFCA. I fear that the
    majority's gratuitous "holding" on IFCA will lead to confusion and will frustrate the
    intent of this remedial statute. I respectfully dissent from that holding, though I
    concur in the decision to affirm the superior court's order on summary judgment.
    I. This Appeal Does Not Require the Court To Decide Whether a WAC Violation
    Supports Remedies and Penalties under IFCA
    The majority frames the issue in this case as whether a violation of WAC 284-
    30-330(7) supports an implied cause of action under IFCA.             Majority at 2, 7.
    Nonetheless, it ultimately agrees with the superior court that Isidoro Perez-Crisantos
    failed to present sufficient evidence of a violation of the insurance regulation. It thus
    affirms the dismissal of his claims based on the Consumer Protection Act (CPA),
    chapter 19.86 RCW, and bad faith and negligence, as well as IFCA. I agree with
    this decision.
    In granting summary judgment of dismissal, the superior court drew no
    distinction between the plaintiffs allegations based on the WAC provision and his
    overarching allegation that State Farm Fire and Casualty Company acted
    unreasonably. The court noted, "We do not have a lot of law on IFCA. We have
    quite a bit of law on some of these WACs. The point is that the issue for the court
    is to determine if the insurance company is acting reasonably or unreasonably."
    Verbatim Report ofProceedings (Aug. 21, 2015) (VRP) at 23. The court continued,
    -2-
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    Perez-Crisantos v. State Farm Fire & Casualty Co., 92267-5
    (Stephens, J., concurring in result only)
    "The issue before the court is whether or not State Farm reasonably handled this
    claim, and that their position was a reasonable position. And that they did not
    'lowball' their insured such that their insured was required to litigate. That is what
    this claim is about." Jd. at 24. Here, the superior court was plainly describing a
    claim under WAC 284-30-330(7), which addresses unfair settlement conduct that
    forces an insured to arbitrate or litigate. That provision states:
    The following [practices] are hereby defined as unfair methods of
    competition and unfair or deceptive acts or practices of the insurer in the
    business of insurance, specifically applicable to the settlement of claims:
    (7) Compelling a first party claimant to initiate or submit to litigation,
    arbitration, or appraisal to recover amounts due under an insurance policy by
    offering substantially less than the amounts ultimately recovered in such
    actions or proceedings.
    WAC 284-30-330(7). The superior court explained:
    The gravamen of the WAC is that the plaintiff is being forced to
    [arbitrate or litigate] because of the intransigence and unreasonableness
    of the first party insurance company. My view is that is not what ...
    went on in this case. There was a reasonable dispute between the two
    parties that ultimately had to be resolved through an arbitration
    proceeding, and it was.
    VRP at 26-27. Having concluded that State Farm did not violate WAC 284-30-
    330(7)-or more generally act unreasonably-the superior court determined that
    further proceedings (including additional discovery) were unnecessary. Id. at 29
    ("Really, the discussion ends at that point.").
    -3-
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    Perez-Crisantos v. State Farm Fire & Casualty Co., 92267-5
    (Stephens, J., concurring in result only)
    Understanding the basis for the superior court's summary judgment ruling,
    which the majority affirms, this case is not an appropriate vehicle for deciding
    whether a WAC violation (if proved) could support liability under IFCA. While the
    briefing before this court invites consideration of that broader issue, we should resist.
    I would await better briefing and a full opportunity to consider the impact of an IFCA
    holding in a case where it matters.
    II The Majority's Putative "Holding" Adds to the Confusion Surrounding
    IFCA 's Purpose and Scope
    The majority concludes that "an IFCA claim cannot be predicated on a
    regulatory violation alone." Majority at 21. To reach this conclusion, it frames the
    issue in terms of whether the cause of action created in IFCA's subsection (1) is
    exclusive, or whether instead "IFCA also created a new and independent private
    cause of action for violation of these regulations in the absence of any unreasonable
    denial of coverage or benefits." I d. at 2 (emphasis added). This framing of the issue
    is somewhat confusing and leaves many questions unanswered.
    As the majority notes, federal district courts in Washington have considered
    whether there is an implied cause of action under IFCA premised on violations of
    certain WAC provisions. See Langley v. GEICO Gen. Ins. Co., 
    89 F. Supp. 3d 1083
    (E.D. Wash. 2015) (holding there is an implied cause of action); Workland &
    Witherspoon, PLLC v. Evanston Ins. Co., 
    141 F. Supp. 3d 1148
     (E.D. Wash. 2015)
    -4-
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    Perez-Crisantos v. State Farm Fire & Casualty Co., 92267-5
    (Stephens, J., concurring in result only)
    (disagreeing with Langley). These courts have found it difficult to make sense of all
    the language in IFCA under such a framework, with Judge Rosanna Malouf Peterson
    noting in Work/and that the relationship between subsections (2), (3), and (5) is
    "vexing." Work/and, 141 F. Supp. 3d at 1155. It may be that the difficulty arises
    not from any inherent flaw in IFCA but from addressing the question in terms of an
    implied cause of action separate from that provided in subsection (1), rather than
    reading IFCA in light of its purpose under chapter 48.30 RCW.
    Chapter 48.30 RCW addresses unfair practices and fraud in the business of
    insurance. RCW 48.30.010 generally outlines available "remedies and penalties"
    against insurers who engage in unfair or deceptive acts or practices. Amended
    alongside the enactment ofRCW 48.30.015, RCW 48.30.010(7) references IFCA's
    language prohibiting insurers from "unreasonably deny[ing] a claim for coverage or
    payment of benefits to any first party claimant." Importantly, chapter 48.30 RCW
    does not purport to enumerate all available causes of action; instead, it contemplates
    a range of possible private actions, in addition to enforcement actions by the
    insurance commissioner. Private actions may include claims sounding in bad faith,
    negligence, or breach of contract, as well as statutory claims.
    IFCA, as part of chapter 48.30 RCW, must be understood in this context.
    While RCW 48.30.015(1) creates a new cause of action based on unreasonable
    -5-
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    Perez-Crisantos v. State Farm Fire & Casualty Co., 92267-5
    (Stephens, J., concurring in result only)
    denials of claims for coverage or benefits, subsections (2) and (3) speak to new
    remedies and penalties superior courts are authorized or required to impose when
    certain findings are made. Subsections (2) and (3) refer to remedies and penalties
    based upon a finding "that an insurer has acted unreasonably in denying a claim for
    coverage or payment of benefits or has violated a rule in subsection (5) of this
    section." RCW 48.30.015(2), (3) (emphasis added). The majority's interpretation
    renders the second half of this sentence inoperative, requiring the superior court to
    find a violation of subsection (1) as a precondition to affording IFCA remedies and
    penalties-despite the obvious disjunctive phrasing.
    I believe a problem with the majority's analysis is that it asks the wrong
    question, i.e., whether subsections (2), (3), and (5) ofiFCA create an implied cause
    of action in addition to that expressly created in subsection (1). 1 Rather than asking
    what the statute implies, we should consider what it actually says. Subsections (2)
    and (3) expressly provide that the superior court may treble the proven actual
    damages and shall award reasonable attorney fees and costs upon finding a violation
    of the insurance regulations identified in subsection (5). Additionally, subsection
    1 Infairness to the majority, the parties and amici sometimes frame the question this
    way, following the analysis of the federal district court in Langley. See Langley, 89 F.
    Supp. 3d at 1084-85; Appellant's Br. at 22-27; Br. ofResp't State Farm at 16-20; Br. of
    Amicus Curiae Am. Ins. Ass'n at 7-11; Br. of Amicus Curiae Wash. State Ass'n for Justice
    Found. at 14.
    -6-
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    Perez-Crisantos v. State Farm Fire & Casualty Co., 92267-5
    (Stephens, J., concurring in result only)
    (6) emphasizes that IFCA "does not limit a court's existing ability to make any other
    determination regarding an action for an unfair or deceptive practice of an insurer or
    provide for any other remedy that is available at law." RCW 48.30.015(6). Reading
    IFCA's language in context, it reflects the legislature's awareness-an awareness
    that permeates chapter 48.30 RCW-that claims alleging unfair or deceptive
    insurance conduct may take a variety of forms. Indeed, multiple claims based on the
    same underlying conduct are generally brought in a single action, and the language
    in subsection (I) intending to broaden available remedies should not be misread to
    restrict them.
    After the dust settles on this case, questions will remain as to what remedies
    and penalties IFCA authorizes, even if we accept as a holding the majority's
    unnecessary conclusion that subsections (2), (3), and (5) do not create an implied
    cause of action. I believe today' s opinion will engender only further debate and not
    the definitive interpretation the majority is apparently reaching for. I would resolve
    this case on the grounds reached by the court below without addressing the question
    '
    of whether a WAC violation alone can support a claim under IFCA. Accordingly, I
    dissent from the majority's analysis ofiFCA but concur in its decision to affirm the
    summary judgment order of dismissal.
    -7-
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    Perez-Crisantos v. State Farm Fire & Casualty Co., 92267-5
    (Stephens, J., concurring in result only)
    -8-