                                                                                                F11- D
                                                                                                   E
                                                                                        COURT       APPEALS


                                                                                      2013                  3


                                                                                       BY


      IN THE COURT OF APPEALS OF THE STATE OF WASHING


                                           DIVISION II


KARYN A.CARBAUGH, an individual,                                        No. 42780 0 II
                                                                                  - -


                               Appellant.

       V.




JOHN N. JOSLIN and "
                   JANE DOE"JOSLIN,                               UNPUBLISHED OPINION
husband and wife, and the marital community
comprised thereof, NORMA O. JOSLIN and
JOHN DOE"JOSLIN, wife and husband, and
the marital community comprised thereof,

                               Defendants,

and


PROGRESSIVE NORTHWEST
INSURANCE COMPANY,




                 J. Karyn A. Carbaugh appeals a superior court's judgment against
       JOHANSON, A. .
                  C   —


Progressive Northwest Insurance Company which reduced her arbitration award by offsetting an

amount paid under her personal injury protection (PIP)coverage. We affirm the superior court

holding that Progressive is entitled to the PIP offset for its PIP payments because Carbaugh's

insurance contract contained   an   offset clause and she   was   fully compensated   under her insurance
No.42780 0 II
         - -




policy. We also deny Carbaugh's request for appellate attorney fees and costs because Carbaugh

does not prevail.

                                                    FACTS


         In April 2005, John N. Joslin, while driving his mother's vehicle, struck a vehicle in

which    Carbaugh      was   a   passenger,   injuring   Carbaugh.   Joslin and his mother were both


uninsured.


         Carbaugh had $ 0, 00 PIP coverage and $ 5, 00 underinsured motorist ( IM)coverage
                      1 0                      2 0                           U

through Progressive. Carbaugh's insurance contract with Progressive contained an offset clause.

In the UIM section, under the heading " IMITS OF LIABILITY," provides
                                      L                    it

         In determining the amount we will pay for bodily injury sustained by an insured
         person ... the amount of bodily injury damages which an insured person is
         entitled to   recover ...   shall be reduced by. . .

                 3. any        paid under Part II —
                             sums                  Personal Injury Protection Coverage due
         to bodily injury to the insured person.

Clerk's Papers (CP)at 49 50. In 2005, 2006, and 2007, Progressive made several PIP payments
                         -

to medical providers on Carbaugh's behalf,totaling $
                                                   28.
                                                   7230.
                                                     ,

         In 2008, Carbaugh sued Joslin and Progressive intervened. In April 2011, the Joslins,

Progressive, and Carbaugh entered a stipulation and order of dismissal as to the Joslins and

allowed Carbaugh to pursue her UIM coverage claims directly against Progressive. In July 2011,

1
    The facts are undisputed.
2
    UIM is an acronym for either uninsured or underinsured motorist coverage. Hamm v. State
Farm Mut. Auto. Ins.  Co.,151 Wn. d 303, 306 n. , P. d 395 ( 2004). Carbaugh's policy
                                  2               l 88     3
defines an underinsured motor vehicle as a motor vehicle to which no liability policy applies at
the time of the accident or to which a policy applies but the sum of all applicable limits of
liability is less than the damages which the insured person is entitled to recover.


                                                         2
No. 42780 0 II
          - -




the case proceeded to arbitration; the arbitrator awarded Carbaugh $
                                                                   70
                                                                   7, in special damages
                                                                     131.

and $20, 00 in
       0         general damages, for    a                  27, 31. The arbitrator's decision
                                             total award of $
                                                            70.
                                                              1

awarded Carbaugh " llowable taxable costs and statutory fees [but] did not rule on any insurance
                 a

coverage issues including PIP offset."CP at 14.

       On September 7, 2011, Carbaugh moved the superior court to enter judgment on the

arbitration award.    Because the total award of $
                                                 70
                                                 27, 31. exceeded Carbaugh's UIM policy
                                                   1

limits, Carbaugh sought judgment against Progressive for the full $ 000 UIM policy limits.
                                                                  25,

The next day, Progressive unsuccessfully moved the superior court for a PIP adjustment to the

judgment amount, arguing that if the court awarded Carbaugh $25, 00, she would receive a
                                                               0

double recovery for her medical bills because Progressive had already paid Carbaugh $
                                                                                    28
                                                                                    7,230.

under her PIP coverage.

       The superior court denied Progressive's motion for a PIP offset, without explanation.

Later that month, Carbaugh again moved the superior court to enter a $ 000 judgment on the
                                                                     25,

arbitration award and Progressive filed a motion for reconsideration of the superior court's order

denying the PIP offset. The superior court granted Progressive's motion for reconsideration. It

explained,

       I] order
        n            to make her   whole, she should receive $27, 31. The most she can
                                                                1
       receive on the UIM coverage is $ 000. That means her PIP has to contribute
                                      25,
       2, to make her whole. She received from PIP $
          131                                         28.
                                                      7,   230. Backing out the
       2, to make her whole leaves a reimbursement on the PIP of 5,
          131                                                    28].
                                                                 $    099[.




                                                  3
No. 42780 0 II
          - -



Verbatim Report of Proceedings (VRP) Oct. 7, 2011) at 1. Thus, the superior court ordered
                                     (
that Progressive was entitled to a partial PIP offset of $
                                                         58, entered judgment in the
                                                         5,098. and

amount of 19, 01.to Carbaugh, plus interest, costs, and attorney fees. Carbaugh appeals.
          42
          $ 9
                                            ANALYSIS


         Carbaugh argues that the superior court erroneously granted the PIP offset because if

Progressive receives a PIP offset, 1) will not be fully compensated, 2) offset makes her
                                   ( she                             ( the

worse off because she purchased UIM and PIP coverage from the same insurer, and ( 3)

Progressive had no right to a PIP offset that reduced her award of general damages. We disagree

and conclude that the superior court correctly granted the PIP offset because (1)Carbaugh's

contract allowed Progressive to offset its UIM payments by the amounts paid under PIP

coverage; 2)Carbaugh has been fully compensated and is,not entitled to double recovery; and
          (

3) offset is appropriate even if the offset reduces Carbaugh's general damages.
 an

3
    There is a de minimus discrepancy between the court's oral ruling and the written judgment.
4
    The $
        28
        7, in PIP payments and the $
          230.                     42
                                   19, 01.judgment equal the $
                                     9                       70
                                                             27, 31.awarded by
                                                               1
the arbitrator.

5
  Regarding attorney fees, the superior court specifically noted, So,I didn't do the Hamm [sic]
                                                                   "
calculation, so you have to do the Hamm [sic] calculation, so that's going to drop that $ 099.
                                                                                        28
                                                                                        5,
even lower."VRP (Oct. 7, 2011) at 1. Hamm fees are awarded in insurance cases and are an
exception to the well known " merican rule"on attorney fees. Matsyuk v. State Farm Fire &
                      -       A
Cas. Co., Wn. d 643, 647, 272 P. d 802 (2012)citing Hamm, 151 Wn. d 303).Otherwise
          173     2                    3               (                     2
known as the pro rata fee sharing rule, the Hamm fee rule requires a PIP insurer "to share pro
rata in the attorney fees incurred by an injured person when the recovery benefits the PIP
insurer."Matsyuk, 173 Wn. d at 647.
                        2

6 The parties agree that the superior court had jurisdiction to rule on the offset issue based on
Mercier    v.                   and
                GEICO Indem. Co.,    agree. 139 Wn. App. 891, 903, 165 P. d 375 (2007),
                                       we                                   3
review denied, 163 Wn. d 1028 (2008) and abrogated on other grounds by Little v. King, 147
                      2
Wn. App. 883, 198 P. d 525 (2008).In Mercier, GEICO argued that the superior court properly
                    3
decided the offset because the arbitrator did not have authority to decide any offset issues.


                                                 0
No. 42780 0 II
          - -



         When no relevant facts are in dispute, we review a superior court's decision regarding

insurance coverage de novo. Hillhaven Props.,Ltd. v. Sellen Constr. Co.,
                                                                       133 Wn. d 751, 757,
                                                                             2

948 P. d 796 (1997).Carbaugh and Progressive do not dispute the facts; therefore our review is
     2

de novo.


         In determining whether an insurer is entitled to an offset, we apply a two step approach.
                                                                                    -

An insurer is entitled to      an   offset ...   when both (1) contract itself authorizes it and (2)
                                                              the                                   the

insured is fully compensated by the relevant `applicable measure of damages."'
                                                                             Sherry v. Fin.

Indem. Co.,160 Wn. d 611, 619, 160 P. d 31 (2007)quoting Barney v. Safeco Ins. Co. ofAm.,
                 2                  3             (

73 Wn. App. 426, 429 31, 869 P. d 1093 (1994),
                     -        2              overruled by Price v. Farmers Ins. Co. of

Wash.,133 Wn. d 490, 946 P. d 388 (1997)).
            2             2              Carbaugh's contract with Progressive authorizes

an offset under its UIM section.


         Because the contract itself authorizes an offset, we next determine whether Carbaugh was

fully compensated, entitling Progressive to an offset for the PIP payments it made. Sherry, 160

Wn. d at 619. Insureds are fully compensated when they have recovered all of their damages as
  2

a   result of   a   motor vehicle accident.      Sherry, 160 Wn. d at 621. Insureds are not entitled to
                                                               2

double recovery.        Sherry, 160 Wn. d at 618. After an insured is "` ully compensated for his
                                      2                                f

loss, "' an insurer may seek an offset, subrogation, or reimbursement for PIP benefits already



Mercier, 139 Wn. App. at 898. Division One of this court disagreed, relying on MAR 6. for the
                                                                                    1
arbitrator's authority in mandatory arbitration to manage the full case and decide all issues.
Mercier, 139 Wn. App. at 899. Because the arbitrator made clear that it believed it lacked
authority to determine the offset issue, leaving it specifically for the superior court to decide,
Division One agreed that the superior court acted appropriately in deciding the issue. Mercier,
139 Wn. App. at 902. Likewise, here the arbitrator had authority to rule on the offset issue, but
specifically declined to do so. Therefore, because the arbitrator specifically, though incorrectly,
declined to rule on the offset issue, we agree that the superior court appropriately decided the
issue.



                                                         5
No. 42780 0 II
          - -




paid. Sherry, 160 Wn. d at 618 (quoting Thiringer v. Am. Motors Ins. Co., Wn. d 215, 219,
                    2                                                   91  2

588 P. d 191 (1978)). offset is "` credit to which an insurer is entitled for payments made
     2             An           a
under one coverage against claims made under another coverage within the same policy."'

Matsyuk   v.   State Farm Fire &       Cas. Co.,173 Wn. d 643, 650, 272 P. d 802 (2012) quoting
                                                      2                  3              (

Winters v. State Farm Mut. Auto. Ins. Co., Wn. d 869, 876, 1 P. d 1164 ( 001)).
                                         144 2           3    3        2

         First, Carbaugh argues that an insured is not fully compensated when an insurer receives

a PIP offset reducing the insured's award if the insured's total damages exceed the UIM policy

limits, citing Keenan v. Industrial Indemnity Insurance Co. of the Northwest, 108 Wn. d 314,
                                                                                    2

318 19, 738 P. d 270 (1987),
    -        2             overruled on other grounds by Price v. Farmers Ins. Co. of Wash.,

133 Wn. d 490, 946 P. d 388 (1997),
      2             2             and Taxter v. Safeco Ins. Co. ofAm., Wn. App. 121,
                                                                     44

721 P. d 972 (1986),
     2             review denied, 108 Wn. d 1037 (1987).Carbaugh misreads these cases.
                                        2

         Our Supreme Court in Keenan held that the insurer was entitled to an offset for PIP

payments against amounts payable to the insured under the UIM endorsement and where the

insured was fully compensated for all damages, even taking into account the offset.,108 Wn. d
                                                                                          2

at 317. Keenan quoted the rule from Taxter that " PIP setoff against UIM]coverage is valid
                                                a                    [

only when      the extent   of    the insured's   damages    are    less than his   policy   limits.   Where the


insured's damages exceed those limits, public policy dictates against any PIP offset."Keenan,

108 Wn. d at 318 (quoting Taxter, 44 Wn. App. at 131).
      2

7
    Neither   subrogation   nor   reimbursement    applies   to    Carbaugh's   facts.   Subrogation allows an
insurer to recover what it pays to an insured under a policy by suing the wrongdoerthe insurer
                                                                                    —
steps into the shoes of its insured. Averill v. Farmers Ins. Co.,
                                                                155 Wn. App. 106, 112 n. ,229
                                                                                           2
P. d 830, review denied, 169 Wn. d 1017 (2010). Reimbursement comes into play where an
   3                                2
insurer is permitted to recoup its payment out of the proceeds of an insured's recovery from the
wrongdoerso the insurer's right of recoupment is contingent on a third party recovery by the
            —                                                                -
insured. Averill, 155 Wn. App. at 112 n. .
                                       2
No. 42780 0 II
          - -



          In Keenan, Genevieve Keenan was insured by Industrial Indemnity Insurance Company

Industrial)for $ 0, 00 PIP for medical expenses, 10, 00 PIP for wage loss, and $ 5, 00 UIM
               1 0                               $ 0                           3 0

coverage. Keenan, 108 Wn. d at 316. Keenan was injured in a head on collision with Buell
                        2                                        -

Wood, who had a $ 000 liability policy. Keenan, 108 Wn. d at 315 16. After an arbitrator
                25,                                   2          -

awarded Keenan $44, 78. Industrial sought to reduce the amount it paid Keenan by the
                28,
                  4

25, 00 Keenan received from Wood's insurance and by the $
  0                                                     90
                                                        9, it had paid in Keenan's
                                                          999.

PIP payments. Keenan, 108 Wn. d at 317. Keenan objected to the $
                            2                                  90
                                                               9, offset, but our
                                                                 999.

Supreme Court held that the offset was appropriate. The court explained that the purpose behind

UIM coverage is to

          allow an injured party to recover those damages he or she would have received
          had the   responsible party   maintained   adequate liability       insurance.          The injured
          party is not entitled to be put in a better position, by virtue of being struck by an
          underinsured motorist, than she would be had she been struck by a fully insured
          motorist.


Keenan, 108 Wn. d at 320 21 (citations omitted).
              2          -

          The court further explained that UIM coverage and PIP coverage protect against two

different risks.      Keenan, 108 Wn. d
                                    2        at 322.       PIP coverage guarantees payment of special

damages following an automobile accident, regardless of which party was at fault; while UIM

coverage guarantees payment of both special and general damages, but only if the other driver

was   at fault.   Keenan, 108 Wn. d
                                2               The two coverages
                                        at 322. "                            overlap   at   one   point —payment of

certain   special damages when     the other driver        was   at fault.   Only at this point does the PIP

reimbursement clause operate to deny plaintiff recovery under both coverages." Keenan, 108

Wn. d at 322. The court held that Industrial was entitled to a PIP offset to prevent Keenan from
  2

getting double recovery. Keenan, 108 Wn. d at 321.
                                       2


                                                       7
No.42780 0 II
         - -



           Similarly, in Carbaugh's   case, the PIP offset   prevents double recovery. The arbitrator

awarded Carbaugh $
                 70, $
                 27, 31.7, was for special damages. As in Keenan, Carbaugh is
                   1    70
                         131.

not entitled to a judgment for $ 5, 00 against Progressive in superior court because Progressive
                               2 0

has already paid Carbaugh's PIP medical costs of 7230. So a $ 000 judgment under the
                                                 28.
                                                 $ ,        25,

UIM    policy   would result in double recovery.     Instead, the PIP payments that Progressive has

already paid represent where PIP and UIM overlap and Carbaugh is not entitled to double

coverage of those damages. Keenan, 108 Wn. d at 321.
                                         2

           Carbaugh disagrees that the full $ 000 award would represent double recovery; but in
                                            25,

doing so, she erroneously asks us to rely on a Keenan quote out of context. Carbaugh argues that

we should apply the rule that "[ here the insured's damages exceed those limits, public policy
                              w]

dictates    against   any PIP   offset, " without looking at the circumstances in the Keenan case.

Keenan involved        a   second driver who had $25, 00
                                                    0         liability   insurance.   Because Keenan's


damages exceeded $
                 25, 00, Keenan's
                   0                        UIM coverage      was   available to make her whole. This


coverage differs from the UIM coverage Carbaugh had where the second driver was completely

uninsured. Sherry explained that UIM coverage is unique and "simply insures a driver against

someone else not having enough insurance to pay a judgment, rather than insuring for full

compensation in the case of an accident." Sherry, 160 Wn. d at 622 23. Ultimately, despite
                                                        2          -

some seemingly contrary general language, the Keenan court applied the PIP offset to avoid

double recovery, and we do the same here.




8
    Keenan, 108 Wn. d at 318 (quoting Taxter, 44 Wn. App. at 131).
                  2

                                                    L
No.42780 0 II
         - -




         Carbaugh also argues that Barney, 73 Wn. App. 426, supports her argument; but again
Carbaugh ignores the factual distinction regarding the insurance coverage and asks us to rely on

one
      quote from the    case   taken out of context.   Barney is distinguishable because Barney's

insurance contract did not contain an offset clause allowing Safeco to deduct medical payment

coverage from its UIM coverage; but Carbaugh's insurance contract does. The Barney court

specifically explained that its " olding would be otherwise if the insurance contract contained an
                                h

offset clause permitting Safeco to deduct the amount paid under its medical payments coverage

from the amount due under its UIM coverage." Barney, 73 Wn. App. at 430. The court stated

that if Barney's contract contained an offset clause, then Safeco could take the $5, offset
                                                                                   000

without depriving Barney of full recovery. Barney, 73 Wn. App. at 430. Carbaugh's contract

contains the offset clause, thus Progressive is entitled to an offset without depriving Carbaugh

full recovery of the $
                     70
                     27, 31.awarded under the arbitration.
                       1

         Next, Carbaugh argues that other Washington Supreme Court cases support her argument

that she is entitled to double recovery in this case, citing Matsyuk, 173 Wn. d 643; Hamm v.
                                                                            2

State Farm Mut. Auto. Ins. Co.,
                              151 Wn. d 303, 309, 88 P. d 395 (2004);
                                    2                 3             Winters, 144 Wn. d
                                                                                   2

869; Mahler    v.   Szucs, 135 Wn. d 398, 957 P. d 632, 966 P. d 305 (1998). But again, these
                                 2             2             2


cases are inapplicable. They address the issue of whether an insurer must pay a pro rata share of

the insured's costs and attorney fees in obtaining a PIP offsetnot whether the PIP offset was
                                                               —



9
 Carbaugh also cites a New Mexico case and a Louisiana case in this section. Fickbohm v. St.
Paul Ins. Co.,133 N. . 414, 63 P. d 517 (2002);
                     M            3              Barnes v. Allstate Ins. Co.,608 So. d 1045
                                                                                   2
La. Ct. App. 1992). Because we are not bound by case law from other states and because we
can reach our answer with Washington case law,we do not analyze Fickbohm and Barnes.
to
     Barney, 73 Wn. App. at 427.


                                                  E
No. 42780 0 II
          - -




appropriate. Matsyuk, 173 Wn. d at 647; Hamm, 151 Wn. d at 306; Winters, 144 Wn. d at 872;
                            2                       2                          2

Mahler, 135 Wn. d at 405.
              2

       Next, Carbaugh argues that the PIP offset prejudices her simply because she would have

been better off had she purchased PIP and UIM coverage from two different insurers rather than

one.   She posits two hypothetical situations that she argues explain why Progressive is not

entitled to   an    offset.   But her arguments do not persuade because the insurance that she

purchased contained an offset clause limiting Progressive's liability in situations such as hers.

Thus, the superior court appropriately limited Progressive's liability when it reduced Carbaugh's

award by a portion of the amount Progressive paid under the PIP coverage.

       Finally, Carbaugh argues that Progressive is not entitled to an offset that invades her

award of   general damages. Carbaugh argues that because the arbitrator awarded her $ 000
                                                                                    20,

general damages, the superior court cannot apply a PIP offset that reduces her judgment below

20, 00. We considered and rejected an identical argument in Schrader v. Grange Insurance
  0

Ass'n,83 Wn. App. 662, 922 P. d 818 (1996),
                            2             review denied, 131 Wn. d 1007, and overruled
                                                               2

on other grounds by Price, 133 Wn. d 490.
                                 2

       In Schrader, Grange Insurance Association paid $ 6, 27.in PIP benefits on Schrader's
                                                      50
                                                      4 8

behalf after   an    automobile accident.   83 Wn.   App.   at 665.   An arbitrator awarded Grange

145, 00: $ 000 for general damages and $ 000 for special damages. Schrader, 83 Wn.
   0     115,                          30,

App. at 665. Schrader argued that Grange was entitled to only a $ 000 offset rather than the
                                                                30,

50
46, 27.amount Grange paid under the PIP coverage because the arbitrator allocated $ 000
  8                                                                               30,

for special damages. Schrader, 83 Wn. App. at 666. We disagreed and explained that because

Schrader's policy contained an offset clause, the arbitrator's award did not affect Grange's right


                                                  1.
                                                   0
No. 42780 0 II
          - -



to   offset its actual PIP payments.    Schrader, 83      Wn.   App.   at 668.   We stated, "To grant

Schrader's claim would vitiate the insurance contract and punish the company for promptly

paying [PIP payments] in good faith pending a final determination of liability." Schrader, 83

Wn. App. at 668.. Similarly here, Progressive's offset is not limited by the arbitrator's special

damage award because Carbaugh's contract contained an offset clause and because Progressive

should not be punished for promptly paying Carbaugh's medical bills.

         To conclude, we affirm the superior court's order allowing a PIP offset to Progressive

because (1)Carbaugh's contract contained an offset clause; ( ) superior court's judgment,
                                                           2 the

plus Progressive's PIP payments fully compensated Carbaugh under the arbitrator's 27, 31.
                                                                                  70
                                                                                   $1

award; and (3)Carbaugh is not entitled to double recovery. Accordingly, we affirm the superior

court and hold that Progressive is entitled.to a $
                                                 58
                                                 5098.PIP offset. .
                                                   ,

                                        ATTORNEY FEES


         Carbaugh requests attorney fees and costs on appeal under RAP 18.1 and for responding

to Progressive's motion for reconsideration at the superior court under Olympic Steamship Co. v.

Centennial Insurance Co.,
                        117 Wn. d 37, 54, 811 P. d 673 (1991), Safeco Insurance Co. v.
                              2                2             and

Woodley, 150 Wn. d 765, 773 74, 82 P. d 660 (2004) Because Carbaugh does not prevail on
               2            -       3


appeal, she is not entitled to attorney fees and costs.




                                                  11
No. 42780 0 II
          - -



         We affirm.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0


                                                                             v      t



                                                                Johanson, A. .
                                                                          J.
                                                                           C
We
     conofur:
     7   6tJ
411- A%  Z, -
          0

                 Quinn-
                      BrintnalY J.




                                                                   PI




                                               12
