Ali Hamza & Zahra Hamza v. GEICO Advantage Insurance Company, et al, 40554-1

MURPHY, J. — Ali and Zahra Hamza had underinsured motor vehicle coverage (UIM) as part of their insurance policy with GEICO Advantage Insurance Company (GEICO). Ali Hamza was involved in an accident caused by a phantom vehicle driven by Leander Robinson. The Hamzas sought UIM benefits without providing GEICO the policy limits information for Robinson, the third-party tortfeasor. The Hamzas filed suit against Robinson and GEICO. Through discovery, Robinson‘s policy limits were produced by his insurance provider, and GEICO tendered UIM benefits to the Hamzas. The Hamzas dismissed their claims against Robinson but not against GEICO.

On GEICO‘s motion for summary judgment, the trial court dismissed the Hamzas’ extra-contractual claims for common law bad faith, violations of the Insurance Fair Conduct Act (IFCA), RCW 48.30.015, and violations of the Consumer Protection Act (CPA), chapter 19.86 RCW. Later, the court dismissed the Hamzas’ claim for breach of contract.

Here, the Hamzas failed to prove the at-fault driver (Robinson) was underinsured by producing evidence of the tortfeasor‘s bodily injury insurance indemnification limits. GEICO did not, therefore, deny coverage. Rather, GEICO correctly advised the Hamzas that it could not evaluate the UIM claim until the at-fault driver‘s policy limits were known. GEICO extended UIM coverage once that information was provided. There are no genuine issues of material fact that support extra-contractual claims or a breach of contract claim. GEICO was entitled to judgment as a matter of law. We affirm.

FACTS

GEICO sold the Hamzas an insurance policy that included UIM coverage, under “Section IV,” entitled “Underinsured Motorists Coverage Protection For You and Your Passengers for Injuries Caused by Underinsured and Hit and Run Motorists.” Clerk‘s Papers (CP) at 47 (emphasis omitted). Key terms defined in the policy include, in pertinent part:

DEFINITIONS

. . . .

5. Phantom vehicle means a motor vehicle which causes bodily injury or property damage to an insured and has no physical contact with the insured or the vehicle which the insured is occupying at the time of the accident.

. . . .

8. Underinsured Motor Vehicle means a land motor vehicle or trailer:

(a) which has no bodily injury and property damage liability bond or policy in effect at the time of the accident;

(b) Which has a liability bond or insurance that applies at the time of the accident but the limits of that insurance are less than the amount the insured is legally entitled to recover for damages;

(c) Whose insurer denies coverage;

(d) Whose insurer is or becomes insolvent;

(e) A hit-and-run vehicle; or

(f) A phantom vehicle.

If there is an accident involving a phantom vehicle the facts of the accident must be proven. We will accept competent evidence. We will not accept the testimony of the insured or that of any person having a claim under this coverage resulting from the accident.

. . . .

LOSSES WE WILL PAY

We will pay damages an insured is legally entitled to recover from the owner or operator of an underinsured motor vehicle due to:

1. Bodily injury sustained by that insured and caused by an accident;

. . . .

LIMITS OF LIABILITY

. . . .

8. We will pay, up to the limits selected, any amount of damages for bodily injury which the named insured is legally entitled to recover from the owner or operator of the other vehicle to the extent that those damages exceed the limits of bodily injury carried by the owner or the operator.

. . . .

CONDITIONS

. . . .

3. ASSISTANCE AND COOPERATION OF THE INSURED

After we receive notice of a claim, we require the insured to take any reasonable and necessary action to preserve his recovery rights against any person or organization who may be legally responsible.

CP at 47-50.

On September 3, 2020, Leander Robinson failed to yield at an intersection when Ali Hamza had the right of way. As a result, Hamza swerved to avoid a collision with Robinson‘s vehicle and drove off the roadway into a fence. Police interviewed Robinson at the scene. Robinson stated no physical contact occurred between the cars.

On July 22, 2022, nearly two years after the incident, the Hamzas submitted a UIM claim to GEICO, alleging the accident was caused by a phantom vehicle. The claim included the police report and Ali Hamza‘s medical records and bills. GEICO contacted Hamza‘s attorney, who stated Robinson was uninsured. GEICO determined Robinson was insured by Bristol West and provided that information to Hamza‘s counsel.

In a letter to the Hamzas, GEICO explained that UIM coverage applied to the extent that damages exceeded the at-fault driver‘s liability limits. The Hamzas renewed their request for tender of UIM benefits asserting Bristol West denied coverage.¹ GEICO followed up with Bristol West and Hamza‘s counsel. Counsel for the Hamzas provided GEICO with what they called a “coverage denial” letter but was actually a letter in which Bristol West denied liability on behalf of Robinson. Bristol West confirmed liability coverage with GEICO but declined to disclose the policy limits on the basis that they denied liability due to the lack of contact between the cars during the incident.

GEICO made multiple unsuccessful attempts to obtain Robinson‘s insurance declarations page or otherwise determine Robinson‘s policy limits. GEICO also retained an accident reconstructionist who determined Robinson intruded into Ali Hamza‘s path of travel and caused him to reasonably react by swerving.

On February 14, 2023, GEICO responded to the Hamzas’ demand for UIM benefits explaining that Robinson‘s vehicle qualified as a phantom vehicle and thus an underinsured vehicle, but UIM coverage was excess or secondary to Robinson‘s primary policy with Bristol West. GEICO stated that because Bristol West‘s policy was primary, it could not complete its UIM coverage analysis until Robinson‘s policy limits information was provided. GEICO requested that the Hamzas provide this information as soon as possible.

The Hamzas sent GEICO an IFCA notice on April 7, 2023, and four months later, sued GEICO for breach of contract, bad faith, violation of the CPA, and IFCA violations. In the same suit, they brought a negligence claim against Robinson. Robinson‘s policy limit for bodily injury coverage with Bristol West was provided through discovery. Robinson tendered his policy limits, and GEICO tendered the UIM limits. The claims against Robinson were dismissed.

On May 17, 2024, GEICO moved for partial summary judgment, asking the court to dismiss the extra-contractual claims. GEICO argued that (1) UIM coverage was available only when primary limits had been exhausted, consistent with RCW 48.22.030(1); (2) the policy‘s limit of liability provision was consistent with Washington UIM law, under which the UIM insurer stepped into the shoes of the at-fault tortfeasor and possessed the same defenses; and (3) the insured bore the burden of establishing that the tortfeasor was underinsured. GEICO maintained it acted reasonably and in accordance with the insurance policy and Washington law by repeatedly requesting Robinson‘s insurance limits before fully evaluating the UIM claim. GEICO asserted that no unreasonable denial of coverage or benefits occurred, defeating the IFCA claim as a matter of law. It further contended that the CPA claim failed for lack of an unfair or deceptive act or cognizable injury to business or property. Finally, GEICO argued that the Hamzas’ breach of contract, negligence, and bad faith claims failed because GEICO “acted reasonably and in good faith” by conducting a reasonable investigation, promptly responding to demands, repeatedly seeking necessary information, and never denying coverage. CP at 141.

The Hamzas cross-moved for summary judgment, claiming GEICO unreasonably denied coverage and breached its contract with them. They argued (1) their insurance policy covered damages the insured is legally entitled to recover from an underinsured motorist, (2) GEICO‘s own definition of phantom vehicle triggered coverage upon proof of loss, and (3) there was no requirement for the insured to prove the tortfeasor‘s insurance status or limits. The Hamzas contended that GEICO failed to conduct a reasonable investigation and improperly shifted the burden to them, and that suspicion of sufficient coverage was not a valid basis to deny UIM benefits.

The trial court granted GEICO‘s motion and denied the Hamzas’ motion. The court dismissed the Hamzas’ extra-contractual claims.

GEICO then moved for summary judgment on the remaining breach of contract claim. GEICO argued the breach of contract claim was extinguished when it tendered the UIM limits, which the Hamzas accepted and cashed. In response, the Hamzas reiterated that breach occurred on one of several possible dates when payment of UIM benefits was due and challenged the trial court‘s earlier ruling on the extra-contractual claims. The court granted GEICO‘s motion.

The Hamzas appeal.

ANALYSIS

We review a trial court‘s summary judgment order de novo, engaging in the same inquiry as the trial court. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Summary judgment is appropriate when there is no genuine issue as to any material fact and “the moving party is entitled to a judgment as a matter of law.” CR 56(c). We view the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Keck, 184 Wn.2d at 370.

The dispositive issue on appeal is the nature of UIM insurance. UIM coverage is excess coverage that applies only after the insured establishes both that they are legally entitled to recover damages from an underinsured motorist and that those damages exceed the tortfeasor‘s available liability limits. Because the Hamzas never made that threshold showing, GEICO had no contractual obligation to tender UIM benefits, and its response in not doing so, pending receipt of Robinson‘s policy limits, was not a breach of contract, nor did it constitute a basis for extra-contractual claims of common law bad faith, violations of IFCA, or violations of the CPA.

UIM insurance supplies a second layer of excess insurance coverage that “‘floats’ on top of recovery from other sources.” Fisher v. Allstate Ins. Co., 136 Wn.2d 240, 244, 961 P.2d 350 (1998) (quoting Blackburn v. Safeco Ins. Co., 115 Wn.2d 82, 87, 794 P.2d 1259 (1990). An insured becomes eligible for UIM benefits only upon demonstrating that they are “‘legally entitled to recover‘” from the underinsured motorist. Id. (quoting RCW 48.22.030(2)). The insurer is then required to pay the insured‘s uncompensated damages “‘until the underinsurance policy coverage is exhausted or until the insured is fully compensated, whichever occurs first.‘” Fisher, 136 Wn.2d at 244 (internal quotation marks omitted) (quoting Hamilton v. Farmers Ins. Co., 107 Wn.2d 721, 723, 733 P.2d 213 (1987)).

“Interpretation of an insurance contract is a question of law reviewed de novo.” Holden v. Farmers Ins. Co. of Wash., 169 Wn.2d 750, 755, 239 P.3d 344 (2010). We construe the policy as a whole and give its language “‘a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance.‘” Seattle Tunnel Partners v. Great Lakes Reinsurance (UK) PLC, 200 Wn.2d 315, 321, 516 P.3d 796 (2022) (internal quotation marks omitted) (quoting Queen City Farms, Inc. v. Cent. Nat‘l Ins. Co. of Omaha, 126 Wn.2d 50, 65, 882 P.2d 703, 891 P.2d 718 (1994)). Undefined terms receive their “‘plain, ordinary, and popular meaning.‘” Id. (internal quotation marks omitted) (quoting Queen City Farms, 126 Wn.2d at 77). Ambiguities are resolved in favor of the insured, but only if extrinsic evidence fails to clarify the parties’ intent. Weyerhaeuser Co. v. Com. Union Ins. Co., 142 Wn.2d 654, 665-66, 15 P.3d 115 (2001).

Section IV of Hamza‘s policy with GEICO expressly includes a phantom vehicle within the definition of an underinsured motor vehicle and promises to pay “damages an insured is legally entitled to recover from the owner or operator of an underinsured motor vehicle.” CP at 48. Critically, the “Limits of Liability” section provides that GEICO will pay, up to the selected limits, those damages for bodily injury that the named insured is legally entitled to recover from the owner of the other vehicle “to the extent those damages exceed the limits of bodily injury carried by the owner.” CP at 49. When read as a whole, the policy therefore affords phantom vehicle coverage only to the extent the insured‘s damages are not covered by the phantom vehicle owner‘s liability insurance. The limits of that coverage must be known—or shown to be insufficient or unavailable—before UIM benefits become due. The Hamzas’ contrary reading, which would trigger full UIM coverage upon mere proof of a phantom vehicle accident without regard to the owner‘s insurance status, cannot be reconciled with the plain language of the “Limits of Liability” provision of the UIM policy.

The legislative history of RCW 48.22.030 confirms this understanding. In 1967, the Washington Supreme Court held that a hit-and-run vehicle satisfied the “physical contact” requirement for uninsured motorist (UM) coverage even when the contact was indirect. Johnson v. State Farm Mut. Auto. Ins. Co., 70 Wn.2d 587, 589, 424 P.2d 648 (1967). In Johnson, the court emphasized that UM provisions were “intended to protect the insured against losses occasioned under circumstances where recovery cannot be had against the party causing the injury.” Id. at 590. Specifically, those circumstances were “(1) where the offending party is uninsured; and (2) where the identity of the offending party cannot be ascertained.” Id. The following year, the legislature enacted RCW 48.22.030, mandating UM coverage. LAWS OF 1967, ch. 150, § 27.

In Hartford Accident & Indemnity Co. v. Novak, 83 Wn.2d 576, 581, 520 P.2d 1368 (1974), the court extended protection to true phantom vehicles that made no physical contact at all. The court reiterated that the statute‘s purpose was to “‘protect the public from the ravages of the negligent and reckless driver‘” and to shield injured parties from “‘insolvent motor vehicle drivers who will not or cannot provide financial recompense.‘” Id. (quoting Touchette v. Nw. Mut. Ins. Co., 80 Wn.2d 327, 332, 494 P.2d 479 (1972)). Because the legislature omitted the physical contact requirement, it “intended to afford protection to an insured for injuries or damages proximately caused by a hit-and-run vehicle, irrespective of its actual physical contact with the vehicle of the insured.” Id. at 582. The court summarized the statute‘s core purpose as “to protect persons who are injured or damaged by other motorists who in turn are not insured and cannot make whole the injured party.” Id. at 583.

RCW 48.22.030 was later amended to add both uninsured and underinsured motorist coverage and explicit phantom vehicles language. LAWS OF 1980, ch. 117, § 1; LAWS OF 1981, ch. 150, § 1; Britton v. Safeco Ins. Co. of Am., 104 Wn.2d 518, 525 n.3, 707 P.2d 125 (1985). The phantom vehicle provision was designed to protect drivers injured by an unidentified motorist without physical contact—a subset of the classic hit-and-run scenario.

Here, however, the driver who caused the accident, Robinson, was identified. Regardless, the common sense understanding of UIM coverage remains unchanged: an owner purchases liability insurance to protect others from their own negligent driving and purchases UIM coverage to protect themselves from any damage caused by another vehicle that is underinsured. Millers Cas. Ins. Co., of Texas v. Briggs, 100 Wn.2d 1, 8, 665 P.2d 891 (1983). Nothing in the statute or case law transforms UIM coverage into first-party, no-fault protection whenever a phantom vehicle is involved.

The Hamzas contend GEICO bore the burden of proving Robinson‘s policy limits. We disagree. The policy‘s “ASSISTANCE AND COOPERATION OF THE INSURED” clause requires the insured “to take any reasonable and necessary action to preserve [their] recovery rights against the person . . . who may be legally responsible.” CP at 50. It appears the Hamzas did not make an effort to hold Robinson legally responsible for the accident before submitting their UIM claim to GEICO. Similarly, it appears that only after GEICO identified Bristol West as Robinson‘s insurer did the Hamzas file a claim with Bristol West. When Bristol West denied liability (not coverage), the Hamzas abandoned their effort and instead asserted to GEICO that Robinson was a phantom vehicle and their UIM coverage had been denied. The Hamzas were obligated to pursue and preserve their claim against Robinson. Had they done so, Bristol West—as it later did—would have disclosed applicable limits. By failing to pursue Robinson and Bristol West, the Hamzas never established that their loss fell within the scope of the UIM coverage they purchased. GEICO therefore had no contractual duty to tender UIM benefits. GEICO‘s repeated engagement in good faith requests for the information necessary to evaluate the UIM claim was such that GEICO did not breach its contract with the Hamzas.

Because the Hamzas failed to demonstrate that Robinson was underinsured, GEICO‘s act of withholding tender of UIM benefits was consistent with both the language of the insurance policy and Washington law. The trial court correctly granted summary judgment on the extra-contractual claims and breach of contract claim.

Attorney fees

The Hamzas request attorney fees and costs on appeal under RAP 18.1. We deny this request.

CONCLUSION

We affirm the trial court‘s order granting summary judgment dismissal of the Hamzas’ extra-contractual claims and breach of contract claim. We also deny the Hamzas’ request for attorney fees.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

Murphy, J.

WE CONCUR:

Cooney, A.C.J.

Lawrence-Berrey, J.

Notes

1

Under the Hamzas’ policy, if Bristol West denied coverage, Robinson‘s vehicle then qualified as an underinsured motor vehicle.

Case Details

Case Name: Ali Hamza & Zahra Hamza v. GEICO Advantage Insurance Company, et al

Court Name: Court of Appeals of Washington

Date Published: Sep 1, 2026

Citation: 40554-1

Docket Number: 40554-1

Court Abbreviation: Wash. Ct. App.