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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION ONE

JERRY L. LLOYD, individually,               )

                                            )       No. 65618-0-I

                      Appellant,            )

                                            )       ORDER GRANTING 

              v.                            )       MOTION TO PUBLISH

                                            )       OPINION 

Allstate Insurance Company,)

a foreign insurer; Deerbrook         )

Insurance Company, a foreign         )

insurer,                                    )

                                            ) 

                      Respondents. )

________________________________            )

       Respondents, Allstate Insurance Company and Deerbrook Insurance Company, 

have filed a motion to publish the opinion filed February 21, 2012; appellant, Jerry 

Lloyd, has filed a response to respondents' motion to publish the opinion; and the 

hearing panel has considered its prior determination and finds that the opinion will be of  

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precedential value; Now, therefore, it is hereby  

       ORDERED that the written opinion shall be published and printed in the 

Washington Appellate Reports. 

       DONE this _____ day of April, 2012.

                                                    FOR THE COURT:

                                                             Judge 

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JERRY L. LLOYD, individually,               )
                                            )       No. 65618-0-I
                      Appellant,            )
                                            )       DIVISION ONE
              v.                            )
                                            )
Allstate Insurance Company,          )      UNPUBLISHED OPINION
a foreign insurer; Deerbrook                )
Insurance Company, a foreign         )      FILED:  February 21, 2012
insurer,                                    )
                                            ) 
                      Respondents.          )
________________________________)

       Becker, J.  --  Jerry Lloyd appeals 
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the trial court's grant of summary judgment in favor of two insurance companies 

in a dispute over the settlement value of his wrecked automobile.  We conclude 

Lloyd has failed to demonstrate the existence of any reasonable dispute 

concerning the facts that are material to his claims.

                                         Facts

       Jerry Lloyd owned a 2005 Chevrolet Malibu Classic that was involved in 

an accident on August 18, 2008.  At the time of the accident, he had an 

automobile insurance policy with Deerbrook Insurance Company.  In the event of 

a collision, Lloyd's policy permitted him to recover the "Actual Cash Value" of his 

vehicle, subject to a $500 deductible. Lloyd called Deerbrook to report the 

accident on the evening of August 18, 2008.  He was informed that his claim 

would be handled by Allstate Insurance Company.

       Allstate asked Lloyd to take the vehicle to an auto shop for an appraisal.  

The shop examined the vehicle and determined it was a "total loss" because 

repair costs totaled $7,977.87, which exceeded the value of the car.  The motor 

mounts were cracked, the frame of the car was bent, and the air bag system had 

to be replaced.  Lloyd took the car to two more repair shops for second opinions

and was given the same evaluation.  

       A technical representative for Allstate went to view the car.  This person 

reported to Autosource Valuation Services, a third party car appraisal service,

that the engine was "well-maintained" and the interior, exterior, and tires had 

been in "good" condition before the collision, except for moderate wear to the 

seats, minor wear to the carpets, and 
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minor damage to the exterior trim. 

       Autosource completed its report on September 4, 2008.  The report set 

the "Total Condition Adjusted Market Value" of the car -- before adding sales tax 

and licensing fees -- at $8,510.  This value was based on a "typical vehicle" with 

an odometer reading of 48,990 miles.  It took into account the good condition of 

Lloyd's car, including the well-maintained interior, exterior, and engine.  

Autosource attached to its report a list of 10 other 2005 Chevrolet Malibu 

Classics for sale within a 24 mile radius, with prices ranging from $8,899 to 

$9,995.  These cars had odometer readings ranging from 27,009 to 66,859 

miles.  

       The odometer reading of Lloyd's car was 113,855 miles.  An Allstate 

representative requested a corrected report to account for the higher mileage of

Lloyd's car. In the corrected report, Autosource calculated a new value of 

$5,105 by subtracting $3,405 to account for the higher mileage of Lloyd's car.  

This report did not alter the original report's statement as to the car's well-

maintained interior, exterior, and engine.  

       On September 9, 2008, Allstate adjuster Steven Graham telephoned

Lloyd to offer him $5,105.00 for the actual cash value of the car.  After adding 

sales tax and fees and subtracting Lloyd's $500.00 deductible, Graham offered 

Lloyd a net payout of $5,102.18.  

       Lloyd refused the offer.  He told Graham he had seen comparable cars 

selling for more and his car was worth more.  Graham explained that the car's 

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"very high mileage" reduced its value. Lloyd insisted that the high mileage did 

not matter because of his car's regular service records.  Graham agreed to 

reevaluate by asking Autosource for a new valuation based on a different 

methodology.  He also told Lloyd he would be willing to consider any market 

research he could provide.  

       Autosource returned a revised report on September 10, 2008.  The new 

report provided two quotes from local car dealers, based on the dealers'

professional opinions of the car's actual cash value given its condition and 

mileage.  The dealers gave quotes of $6,075.00 and $6,500.00, which grew to 

$6,654.63 and $7,115.75, respectively, after adding sales tax and license fees.

       The next day, Graham called Lloyd to extend a second offer of $6,654.63.

Lloyd rejected this offer, stating that he needed between $9,000.00 and 

$13,000.00 to replace his car.  Graham later testified that he was prepared to 

offer the higher estimate of $7,115.75 to settle the claim, but he did not do so 

either then or later.    

       On October 17, 2008, Allstate received a letter from attorney Alana Bullis, 

stating that Lloyd had retained her to represent him, that Lloyd wished to invoke 

the appraisal clause of his policy, and that he had selected an appraiser.  

Allstate retained an appraiser the same day.  The following week, Allstate's 

appraiser, Mark Olson, prepared a report concluding that Lloyd's car was worth 

$6,183.79, taking into consideration its "very clean" condition and high mileage.  

The two appraisers met on October 27, 2008.  They agreed on an "Award of the 

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Loss" in the amount of $6,683.79, plus sales tax and licensing fee.  

       On November 3, 2008, Graham spoke to Bullis and explained that he 

would be sending Lloyd a check for $6,815.16.  This amount included the full

appraisal award, increased by sales tax and fees and decreased by his $500.00

policy deductible.  Bullis claimed that Allstate was not entitled to subtract the 

deductible.  Graham asked Olson whether the appraisers had included the 

deductible in the appraisal award.  Olson told him they had not.  Lloyd's own 

appraiser confirmed Olson's answer in a letter to Bullis.

       Before Graham issued the check, however, Lloyd decided that he wanted 

to keep his car.  Graham subtracted $545.38 from the settlement to account for

the car's salvage value and sent Lloyd a check in the amount of $6,269.78 on 

November 26, 2008.  Lloyd cashed the check promptly.  Later, he changed his 

mind about keeping the car.  He asked Graham to take the car back and repay 

him the salvage value.  On January 21, 2009, Graham issued Lloyd a second 

check for the $545.38 salvage value.  Lloyd cashed it promptly.  As of that date,

Allstate had paid Lloyd a total of $6,815.16 in settlement of his claim.  Allstate 

deemed the matter finished and the claim paid.  

       On March 6, 2009, Lloyd filed a lawsuit against Allstate alleging violations 

of the duty of good faith and fair dealing, violations of various provisions of the 

Washington Administrative Code, violations of the Consumer Protection Act, 

chapter 19.86 RCW, and breach of contract.  He amended his complaint on 

June 16, 2009, adding Deerbrook as a defendant.  Allstate and Deerbrook 

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moved for summary judgment.  The trial court granted summary judgment in 

favor of the insurance companies.  This appeal followed.

       When reviewing an order on summary judgment, we engage in the same 

inquiry as the trial court. Cummins v. Lewis County, 156 Wn.2d 844, 852, 133 

P.3d 458 (2006).  Summary judgment is proper where the entire record shows 

there is no genuine issue of material fact and the moving party is entitled to 

judgment as a matter of law.  CR 56(c); Cummins, 156 Wn.2d at 852. We review 

the record taking all facts and reasonable inferences in the light most favorable 

to the nonmoving party. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 

774, 784, 30 P.3d 1261 (2001).

                                      BAD FAITH
       Lloyd argues that the insurers breached their duty of good faith and 

engaged in unfair and deceptive trade practices by extending unreasonably low 

settlement offers. Because the two offers were unfairly low, he contends, he was 

compelled to invoke the appraisal clause, incurring additional expense and 

delay.  

       An insurer's duty of good faith includes an affirmative duty to promptly 

investigate claims and attempt to effectuate fair and equitable settlements,

without resort to litigation, arbitration, or appraisal.  WAC 284-30-330(6)-(7); 

Coventry Assocs. v. Am. States Ins. Co., 136 Wn.2d 269, 279-81, 961 P.2d 933 

(1998).  To establish bad faith, an insured is required to show that the insurer's 

actions were unreasonable, frivolous, or unfounded.  Mutual of Enumclaw Ins. 

Co. v. Dan Paulson Constr. Inc., 161 

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Wn.2d 903, 916, 169 P.3d 1 (2007). An insurer does not act in bad faith where 

it "acts honestly, bases its decision on adequate information, and does not 

overemphasize its own interest."  Werlinger v. Clarendon Nat'l Ins. Co., 129 Wn. 

App. 804, 808, 120 P.3d 593 (2005), review denied, 157 Wn.2d 1004 (2006). 

The determinative question is the reasonableness of the insurer's actions in light 

of all the facts and circumstances of the case. Anderson v. State Farm Mut. Ins. 

Co., 101 Wn. App. 323, 329-30, 2 P.3d 1029 (2000), review denied, 142 Wn.2d 

1017 (2001).  Where reasonable minds could not differ as to the reasonableness 

of the insurer's actions, summary judgment is appropriate.  See Hertog, ex rel. 

S.A.H. v. City of Seattle,138 Wn.2d 265, 275, 979 P.2d 400 (1999).

       Graham's two settlement offers were both reasonable and based on 

"adequate information."  Werlinger, 129 Wn. App. at 808.  Allstate promptly and 

thoroughly investigated Lloyd's loss by sending a field representative to view the 

car and having the car examined by a private auto body shop.  The two offers 

Graham extended were based directly on Autosource's market research, which 

incorporated the field representative's observations that the car's interior, 

exterior, and engine were in good condition.  Both offers tendered 100 percent of 

the actual cash value accorded to the car by Autosource appraisals.  There is no 

evidence that Graham made any attempt to reduce the appraisals arbitrarily. 

       Lloyd contends the original Autosource valuation of $8,510 was an 

accurate representation of his car's value.  Because his car's engine was 

regularly serviced and the car was in otherwise clean condition, Lloyd's theory 

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goes, the field representative who requested the original Autosource valuation 

made an appropriate decision to ignore the car's high mileage. Therefore, 

Graham acted unfairly when he adjusted the value downward and offered a 

substantially lower figure.  

       Lloyd points to no evidence to support this theory.  Ample record 

evidence contradicts it.  Graham testified that the initial $8,510 figure was 

generated in error and that reliance on that figure would have been 

unreasonable.  Graham's testimony is corroborated by the Olson appraisal, 

which reduced the car's value by $2,500 to account for its high mileage; the

corrected Autosource appraisal, which reduced it by $3,405; and Autosource's

list of "comparable" cars selling for higher prices, all of which had odometer 

readings much lower than the reading on Lloyd's car.  Lloyd did not rebut this 

evidence.  

       Lloyd also argues that Graham's first offer of $5,105 was unreasonable

for the simple reason that it was lower than later appraisals of the car.  This 

theory is also unpersuasive.  A mere number comparison is inadequate to show 

bad faith where the lower offer was reasonable in light of evidence available at 

the time the offer was made.  See Keller v. Allstate Ins. Co., 81 Wn. App. 624, 

633, 915 P.2d 1140 (1996) (rejecting a "strict number comparison approach" and 

concluding an $8,000 offer was reasonable despite a later $75,000 jury verdict).  

       Lloyd next argues that Graham violated the insurer's fiduciary duty to give 

equal consideration to its policyholders' interests when he offered him the low-

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end figure in the revised report, rather than the high-end figure. Because Lloyd 

raises this fiduciary duty theory for the first time on appeal, we do not consider it.  

RAP 9.12.  

       Lloyd's final theory is that Graham acted unfairly when he neglected to 

call Lloyd or his attorney to tender a higher offer based on the higher of the two 

quotes from local car dealers.  This argument is also unpersuasive.  Graham 

testified that when he extended the offer of $6,654.63 in September based on 

the lower quote, Lloyd told Graham to expect a call from "his attorney" and then 

hung up the phone.  It was not unreasonable for Graham to await contact from 

the as yet unidentified attorney, rather than to call Lloyd back to try and settle 

the claim.  See WAC § 284-30-330(19) (prohibiting an insurance company from 

"negotiating or settling a claim directly with any claimant known to be 

represented by an attorney without the attorney's knowledge and consent").  And 

once Graham received a letter from Bullis invoking the appraisal clause of the 

policy, it was not unreasonable for Graham to proceed down the appraisal route,

as Bullis requested.  

       Viewing the evidence in the light most favorable to Lloyd, the record 

presents no legitimate dispute concerning the reasonableness of the insurers'

actions regarding Lloyd's claim.  Lloyd has pointed to no evidence showing that 

Graham behaved dishonestly, arbitrarily, or anything other than reasonably in 

settling his claim.  The claims alleging bad faith and unfair or deceptive acts 

were properly dismissed.  

                                              10 

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                         BREACH OF APPRAISAL AWARD

       The appraisal award provided:  "We, the undersigned, having completed 

the appraisal process, hereby render an Award of the Loss in the amount of:  

$6,683.79 + Sales Tax Lic. Fee."

       Lloyd's breach of contract claim alleges that the insurers breached the 

terms of the appraisal award when they subtracted his $500 policy deductible 

from the award.  

       Lloyd concedes that the insurers were entitled under his insurance policy 

to subtract the $500 deductible from a determination of the "actual cash value" of 

the car after a collision.  He contends that because the appraisal award used 

different terminology -- referring to an "award of the loss" rather than an "actual 

cash value" -- the insurers had no authority under his policy to subtract the 

deductible.  

       Where it describes the appraisal process, the policy employs both terms:

       Both you and The Company have a right to demand an appraisal of 
       the loss. . . . Each appraiser will state the actual cash value and 
       the amount of loss. . . . A written decision . . . will determine the 
       amount of the loss. 

Olson explained to Graham that he understood the appraisal award to be a 

determination of the "actual cash value" of Lloyd's car that "in no way took into 

consideration the $500.00 deductible."  Lloyd's appraiser wrote to Bullis 

confirming Olson's explanation.  Graham testified that in his role as a claims 

adjuster, he routinely subtracted deductibles from "any claim that we settle for a 

policy-holding insured customer," without regard to whether the settlement 

occurred via the appraisal clause or by 
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ordinary negotiation.  

       Considering this evidence along with the language of the policy and the 

language of the award, we conclude the appraisers' use of the phrase "award of 

the loss" did not mean that they failed to find the actual cash value.  It is plain 

that the award of the loss was for the actual cash value.  This conclusion is 

consistent with the general rule, cited by Lloyd, that an appraised award is 

conclusive as to the amount of loss.  Bainter v. United Pac. Ins. Co., 50 Wn. 

App. 242, 748 P.2d 260, review denied, 110 Wn.2d 1027 (1988).  

                                      DAMAGES

       Lloyd claims he is entitled to additional economic damages for loss of 

use, costs related to submitting to the appraisal process, paying out-of-pocket 

for repairs, and waiting to receive his settlement "for some time." He claims 

entitlement to ongoing damages until Allstate repays his $500 deductible.

       Lloyd's claim that he is entitled to damages for having to submit to the 

appraisal process is unsupported.  He invoked the appraisal clause after 

refusing two prompt and reasonable offers by Allstate.  There is no evidence that 

Graham was an unwilling negotiator.  This claim could have been settled 

reasonably without turning to the appraisal process.  Graham's second offer was 

$1,000 higher than his first offer, and he testified that he was prepared to extend 

an even higher offer in order to settle the claim, but Lloyd ended the call before 

he could do so.  

       Because Lloyd has failed to raise any genuine dispute that the insurers 

breached any duty they owed to him, his 
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other theories of inadequate damages are unfounded.  The insurers were 

contractually entitled to subtract his $500 deductible.  Lloyd has received a full 

settlement of his claim under his policy. 

       The respondents request an award of fees pursuant to RAP 18.9 for 

defending a frivolous appeal.  The appeal is not "so totally devoid of merit that 

there was no reasonable possibility of reversal."  Streater v. White, 26 Wn. App. 

430, 434-35, 613 P.2d 187, review denied, 94 Wn.2d 1014 (1980).  The request 

is denied.

       Affirmed.

WE CONCUR:

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