*1 responded by Newhouse emphasizing grandfather pro- “If we all grandfather rates, visions: in the- existing how world can there be three or four million dollar loss to anybody?” then supra. Senate Journal, Senate adopted the amendment only reconsideration. can conclusion that we draw Legislature aware specifically of some cities’ multiple classifications and that the Legislature sought such exempt existing tax from the schemes the new tax sweep cap.
As of January 1, 1982, B&O Tacoma’s tax rate for ser- percent. 2,§ vices was 0.5 See Tacoma Ordinance 19069 1, passed April years About seven Tacoma actu- ago, reduced the rate ally rate, tax on services to its current percent. 0.48 See Tacoma 25019, Ordinance Decem- passed ber 1991. Enterprise conceded below that Tacoma code definitions, tax Enterprise’s business activity could be taxed under the “service” classification. wе hold
Accordingly, that Tacoma’s tax clas- ‘service’ sification applied as Enterprise specifically exempted grandfather clause contained RCW 35.21.710. Thus, under this secondary rationale, trial court erred.
Reversed.
Houghton JJ., concur. Hunt, Review granted at Wn.2d 1001 [No. 21831-3-II. Two. 1998.] Division October Company of Washington, Resрondent, Insurance Defendant, Lautenbach, v. Gordon Smith, and as Personal Individually Representative,
Appellant. *2 appellant. Ben Bratt, Morse & Shafton Brumbaugh Norman C. Dick and Mark Walstead, S. Mertsching, Husemoen, Barlow, Donaldson & ES., for re- spondent. *3 J. Mathew Lautenbach in died a three-car
Armstrong, July accident on 5, 1993. Glenna Smith and Gordon Laut- parents accepted enbach, the divorced of Mathew, company from the insurance for the at-fault driver in settle- ment of their individual claims and the claim on behalf of agreed Mathew’s estate. Glenna and Gordon to a division $450,000. of the Glenna then arbitrated her claim and the claim, provided with Farmers, which underinsured coverage; motorists Glenna was awarded $300,000 and the principаl estate was $215,000. awarded The issue is whether Farmers is entitled to a credit for the total amount by received Gordon and Glenna or the amount Glenna received a as result of her division with Gordon. We hold that because Glenna and Gordon made an unallocated with the carrier and then allocated the settlement themselves, to a between Farmers is entitled proceeds for entire settlement. credit unallocated
FACTS 5, 1993, in a On Mathew Lautenbach was killed July caused Andrea Webb. Candace Boet- by three-car accident in accident, Mary Kay tcher was also killed Baran- seriously injured. ske Robеrt Baranske were Webb $1,500,000. limits of insured USF&G with in the of the registry USF&G limits deposited policy in exchange court for releases from all claimants. superior the son of Glenna Smith and Mathew Lautenbach was since Lautenbach, who had been divorced Gordon visita- custody infrequent Glenna had Gordon exercised death, At in tion. the time of Gоrdon was arrears Mathew’s $58,500. on his child an amount of support payments for personal Glenna was as the appointed representative a wrongful Mathew’s hired counsel to pursue estate. She and her claim for de- death action behalf the estate Lauten- relationship. of the Gordon struction parent-child his interests bach hired his own attorney represent the suit. with policy
The Smiths had an automobile insurance Washington. policy Farmers Insurance Company (PIP) and underinsured injury protection included personal (UIM) in the amount of Gor- motorists benefits the Farmers his policy don was also insured under had PIP from Mathew’s death. arising policy the funeral expen- towards $2,000, which a doc- however, require sign did not Smith Farmers, ses. $2,000 to be deducted any ument permitting *4 contract. as insurance recovery contemplated by its limit USF&G February to a agreed All claimants $1,500,000 registry. into the court Lautenbach $600,000, with the distribution of preliminary in February, Later Glenna $200,000. receiving claimants $200,000 in of a $59,813.53 from the satisfaction received for back child The support. she had obtained judgment be $59,813.53 ordered that would “debited judge found to be due and GORDON LAU- moneys owing any arising out of the claims that he have may TENBACH Lautenbach,” the death of Mathew includ- connection with parent/child relationship claims for loss of the ing his his share Mathew Lautenbach’s Estate. a of the all claimants division
Ultimately $900,000 remaining Glenna, from USF&G’s settlement. (for Gordon, and the estate received an additional of $450,000). total Gordon later an additional negotiated $23,800 from the other claimants. June Gordon released both his loss of parеnt/ claim
child and his share of Lauten- relationship Mathew Farmers) all (including against bach’s UIM claims $98,800. Thus, for exchange Gordon received a total of $158,613.53 ($98,800 the $59,813.53 child plus support payment). Gordon,
After settling with Glenna arbitrated her claim the estate’s with The Farmers. arbitrators set to the estate damages $215,000, damagеs at for loss of parent/child relationship at The court, award was confirmed in superior but the court declined to set the credit to which Farmers was entitled. Farmers then filed this action a declaratory judgment. Both sides moved for summary judgment. superior court Farmers’ motion for al- granted summary judgment, held the UIM though оbligation court was only $32,500. The as to the method of parties disagree proper calculating Farmers’ credit for the made by USF&G. are underpinnings Glenna’s calculation proposed (1) she,
two: the allocation that Gordon and the estate (2) after agreed upon receiving controlling; she, Gordon, and estate should be treated separately *5 676 sums allocated to Gordon and estate1 liability of
should deducted to arrive at the amount be According proceeds available for Glenna’s individual claim. only approximately calculation, received to Glenna’s she has liability payment $170,000 to from she is entitled satisfy $100,000 $300,000. Farmers’ limit of to her of award Farmers, hand, on the other contends that it entitled paid to a for the entire amount to the Lautenbach credit plus payment. claimants—$473,800 $2,000 so, its If only $39,200, owes the difference between the $475,800. $515,000 total and the Farmers also award estopped claiming argues that Glenna is that more $98,800 than should be allocаted to Gordon because that attorney al- was the amount Glenna’s told them would be located to Gordon. Payments in
A.
Offset Tortfeasor
UIM Claims
“floating layer”
UIM
a
above
avail
liability policy.
Pro
able limits of the tortfeasor’s
Groves v.
App.
gressive Cas.,
133, 136, 137,
50
At the UIM arbitration, the panel awarded the Cramers $10,000 in medical expenses, general damages, in loss of consortium for a total PEMCO thereafter refused further coverage, claiming between the tortfeasor settlement *6 the the Cramers had already been paid more than the arbitrators’ award. The sued, Cramers contending that the wife’s loss of consortium claim was not included in the settlement with the tortfeasor’s insurer.
The rejected court that argument, stating: independent nature of [the wife’s] consortium negotiations the lack of as to in arriving that claim at the settlement with Farmers are immaterial. Having signed a claims, release of all separate and community, for an unallo- $25,000 cated sum, lump the Cramers cannot now insist on imputing an allocation based on the arbitrators’ award so as to enlarge obligations the of the UIM carrier. (footnote omitted).
Cramer, at 566 Glenna Similarly, seeks to the enlarge of Farm- obligation ers by certain allocating amounts to Gordon and the estate. The problem with these allowing agreed allocations to control the amount due under UIM is best il- lustrated here the child by support payment Glenna received from Gordon’s share of the liability settlement. Glenna to agreed allocate approximately $60,000 to Gordon the initial settlement, but the to immediately paid Glenna in satisfaction of Gordon’s de- linquent child If support. Glenna and Gordon had been un- claimants, related at arms negotiating with each length other claimants, and the other Glenna would presumably have сontested this amount. But because of their rela- past to Gordon worked to Glen tionship, payment actually the Thus, payment na’s benefit. instead of this contesting Gordon, And to allow Glenna to Glenna it. supported liability coverage by reduce amount of available to her the is to the of the UIM manipulation this allow Cramer.2 obligation by prohibited this case and Cra- But there is one distinction between Cramer,; mer. and wife went to arbitra- both the husband Thus, court tion and the claims of both were evaluated. the more the was aware that Cramers had been than Here, placed arbitration values their claims. Gordоn’s arbitrated; claim was not arbitration awards covered question claims Glenna and estate. only Cra- this distinction precludes application whether mer rule. hold it does not. We that claim was not arbitrated because Glenna
Gordon’s he make no claim to the UIM Gordon would agreed Glenna that Gordon would proceeds. exchange, the liability proceeds. receive certain share of The benefit to Glenna is that she became the claimant If her award and had exceeded award proceeds. $100,000, she settlement more than would limits. And she not have had be entitled to Farmers’ would those limits with Gordon. The risk to share *7 claim not the value of Gordon’s to pres- that she did have agreement the UIM limits. But that against ent the Cramer rule applies. made. she We conclude Cramer, however, not to offset does allow Farmers Cramer the unallocated applies only to full settlement—$450,000. remaining negоtiated Gordon amount own for his own benefit. That $23,800 on his similar to liability proceeds, deducted from is properly to other the amounts claimants. paid example. another proposed to the estate is 2Glenna’s allocation of our decision on offset of the unallocated view settle- ment, we do not reach Farmers’ estoppel argument.
PIPB. Offset Glenna and the estate assert that Farmers should not be allowed an offset UIM benefits against for the fu- neral benefits Farmers under PIP coverage. argu- ment based clause in PIP following Farmers’ benefits coverage:
No shall be made under coverаge [PIP] unless the person insured . . . shall have in writing that payments amount of such applied shall be toward settlement any any or satisfaction of award entered in his favor underinsured motorists any this or other policy of the Farmers Insurance Group Companies. Glenna contends that because Farmers did not such rеquire a it writing, waived the PIP right offset against UIM benefits.
A waiver is the intentional and voluntary relinquish ment of a known right, Webster, Bowman v. 667, 669, 269 P.2d (1954), and can arise from an insurance company’s failure to insist on listed in procedures its insur See, ance contract. v. e.g., Reynolds Co., Travelers’ Ins. 36, 46-48, Wash. Whether or not PIP benefits can be offset agаinst UIM benefits is governed by the written insurance contract. Co., Ins. Barney Safeco 73 Wn. App. overruled on 429, 869 (1994), P.2d 1093 other grounds Price v. Farmers Ins. 133 Wn.2d
Farmers contends that the general “right recov er” clause in the insurance contract an permits offset even though Farmers did not enforce the in the specific clause A section.3 “right recover” clause similar to the one here an to offset PIP benefits. Keenan v. permits insurer “right person 3The to recover” clause in the contract reads: “When has paid damages by policy another, been us under this and also recovers from we *8 680 Co., Indem.
Industrial Ins. 314, 317-19, 108 Wn.2d 738 (1987). P.2d agree provision by
We with Farmеrs. While the cited Farmers to on a before permits writing paying Smith insist benefit, clause nothing prevents this Farmers recovering such under different clause Thus, only right the contract. Farmers waived its require its repay, a written not to recover agreement right PIP payment. Fees Attorneys’
C.
an
at
request
Glenna Smith and
Estate
award of
fees, for
torneys’
both
action below and
appeal,
S.S. Co. Centennial Ins.
Olympic
Olympic,
an
Under
insured who
attorneys’
entitled
fees.
must sue to obtain
Dayton
v. Farmers Ins.
Olympic
However,
limited
Group,
(1994),
124 Wn.2d
which held
attorneys’
only
the insured could recover
fees
where
an
coverage was
rather
than the vаlue of
disputed,
did not
Glenna’s
Here,
insured’s claim.
Farmers
dispute
but
the amount due under such cover
coverage,
attorneys’
not
Glenna to
fees.
age.
disputes
Such
do
entitle
Ins. Co.,
v. State Farm Mut. Auto.
Mailloux
507, 516-18,
$452,0000—the amount of the unallocated settlement plus $2,000 PIP the total award of payment—against $515,000. of a in accordance with entry judgment
We remand for opinion. this A.C.J., concurs.
Bridgewater, fully person has to the of our after that been shall he reimbursed extent compensated or her for his loss.” Glenna, individually and estate 4The difference should be divided between is, apparently, proportion respective the sole benefi- to their awards. Glenna ciary may disbursement of the and so division not affect the actual such funds. — J. I (concurring) general, agree with Morgan, majority’s and result. I reasoning write because separately I want to emphasize how *9 this case is. peculiar
As holds, the a court majority should not allow co- claimants to affect a UIM obligations carrier’s by unilatеr ally allocating proceeds liability insurance among themselves.5 a court Accordingly, should treat as a single, entity combined those co-claimants who elect to receive joint doing this, carrier.6 however, a court generally should include the same claim ants in the minuend as in the subtrahend.7 For if example, a court includes claimants A B in and it subtrahend, should A include claimants and B in the minuend. If a court A, includes B, claimants and C in the subtrahend, it should A, B, include claimants and inC the minuend.
The peculiarity inherent in this case is majority B, includes A, claimants and (Glenna, C the estate and Gordon) in the subtrahend, but claimants B A and (Glenna estate) and the in the minuend. This is correct only because and Gordon agreed that his claim would not be presented to the arbitrators If valuation. his claim had been presented, we should use a today subtrahend that represents coverage available A, B, (Glenna, estate, C Gordon), and a minuend that represents combined legally amounts Gordon). B, to A, estate, owed and C (Glenna, Reconsideration denied March 1999.
Review denied at 138
Co.,
563, 566,
(1992);
App.
5Cramer v. PEMCO Ins.
67 Wn.
Auto. Ins.