EASTAUGH, Senior Justice.
When Keith Jones sued Todd Christianson for severe personal injuries Jones suffered while working for Christianson's landscaping business, Christianson tendered his defense to his general liability insurer. It did not accept his tender. It instead sent him a letter that told him he should defend himself and that discussed an exclusion for claims of employees. Christianson then began to incur
Todd Christianson owns and has owned a number of past and current Alaska businesses.
In 2003 Christianson approached Mike Dennis, an agent at CHI, and sought insurance. A different brokerage firm had obtained insurance for Christianson's businesses in 2002. Christianson later testified that when he talked to Dennis, he "was looking for complete insurance on all my commercial entities that needed insurance." He testified that he expected the broker to "get the information, find out about my business and make sure I'm covered." He asserts in his appellate reply brief that he expected CHI to obtain insurance covering "all liabilities and potential liabilities" for his landscaping business. It appears that CHI understood that it was primarily responsible for obtaining insurance covering Titan. Christianson admitted when his deposition was taken that he owned entities that he did not insure through CHI. But he also testified that he provided Dennis with information about GALL, titles and registration on his vehicles, and "all [his] past [commercial insurance] policies," including `GALL's. CHI's Titan file included a list of vehicle registrations; the file listed at least two vehicles registered to GALL, including the truck pertinent here. CHI knew when the insurance was placed that Christianson's business used a piece of equipment known as a hydroseeder or hydromulcher. We refer to it here as a "hydroseeder" for consistency with the superior court decision we are reviewing.
CHI obtained three policies insuring Titan: a workers' compensation policy from AIG, a general liability policy from Great Divide Insurance Company, and an auto policy from Cascade National Insurance Company. The three policies took effect in April and May of 2003. Christianson was an insured under the two liability policies.
Keith Jones was an employee of Titan. In June 2003 Jones was severely injured in a work-related accident with the hydroseeder being used by Titan. The hydroseeder was owned by GALL, but was "on loan" to Titan. It was mounted on a truck most recently registered to GALL. Because GALL's assets were subject to a federal tax lien at the time, Christianson had not transferred them to Titan. Titan reported the accident to CHI, and Titan's workers' compensation insurer, AIG, was notified. AIG then provided workers' compensation benefits to Jones.
On September 14, 2004 Jones filed a personal liability lawsuit against the manufacturer of the hydroseeder (Bowie Industries, Inc.) and Christianson individually and doing business as GALL. Titan was not a defendant. As to Christianson, the lawsuit alleged
Great Divide replied to the tender by letter dated September 24, 2004. The letter was addressed to Christianson and Titan; it stated that Great Divide was investigating the claim and that, in the interim, Christianson would have to file an appropriate response to Jones's lawsuit and pay for his own defense. The letter stated that should Great Divide determine that it did have a duty to provide coverage or a defense, Christianson would be reimbursed for the reasonable fees and costs of his defense. The letter then referred to and quoted the policy's exclusion of coverage for claims of bodily injury to an employee of the insured. The letter stated that "[s]hould it be determined or confirmed through the investigation ... that Keith Jones was an employee of Titan Enterprises, LLC ... at the time of the incident, Great Divide Insurance Company may refuse to defend or indemnify you for this matter." Although Great Divide did not then, or ever, agree to defend Christianson or reimburse his defense costs with respect to the Jones lawsuit, the letter asserted that Great Divide was reserving all its rights under its policy.
Christianson soon began personally incurring legal fees in defending himself in the Jones lawsuit.
In March 2006, about 18 months later, Great Divide sent Christianson a letter denying coverage and filed a complaint in federal court seeking a judgment declaring that its policy did not cover Christianson for Jones's claims. In November 2006 Dennis's deposition was taken in Great Divide's declaratory judgment action. Dennis took CHI's Titan file to the deposition and agreed that it contained a list of vehicle registrations that Dennis would use "to create an application with." Dennis also testified that if Christianson was using GALL vehicles in his Titan business, CHI should have told Christianson to register them to Titan. He agreed that auto coverage listing only Titan as an owner might well exclude liability coverage for GALL. Asked whether, because some of the vehicles appeared to be owned by GALL, CHI attempted to make sure GALL was an insured, he answered, "no."
The Jones personal injury trial was scheduled to begin in August 2007. In March 2007 Christianson tendered defense of the Jones lawsuit to Titan's auto insurer, Cascade National.
The Jones personal injury trial eventually commenced in February 2008. Christianson and GALL prevailed at trial. The superior court entered a directed verdict for Christianson and the jury returned a verdict for GALL. This court later reversed the defendants' judgments.
Christianson sued CHI on August 6, 2008. His complaint alleged that CHI and Dennis breached their professional duty of care in exposing him to the costs of litigation and the risk of an uninsured judgment, and therefore caused him "to spend money in his own defense." It also alleged that Christianson had incurred over $100,000 in attorney's fees in defending against Jones's claims and the insurers' declaratory judgment actions. CHI's answer denied liability. In 2010 CHI
Before deciding CHI's summary judgment motion, Superior Court Judge Frank A. Pfiffner held an evidentiary hearing to determine when the statute of limitations began to run. The court heard the testimony of Christianson and his lawyer, reviewed exhibits that included passages from Dennis's deposition, and read Christianson's deposition. The court granted CHI's summary judgment motion after making findings of fact about the contents and effect of the September 24, 2004 letter and what information Christianson would have learned had he then made an inquiry. The court made the following findings about the letter and its effect:
(Emphasis in original.)
The court then made these findings about what an inquiry "at that point" would have revealed:
The superior court consequently ruled that the applicable three-year statute of limitations had begun running on September 24, 2004, the date of Great Divide's initial letter to Christianson, and that the limitations period had expired before Christianson commenced suit in August 2008. It therefore dismissed Christianson's complaint.
Christianson appeals.
When the superior court holds an evidentiary hearing to resolve factual disputes about when a statute of limitations began to run, we review the resulting findings of fact for clear error.
The ultimate issue here is whether the superior court correctly decided that Great Divide's initial letter put Christianson on inquiry notice and that the statute of limitations on Christianson's malpractice claim against CHI therefore began to run when Great Divide sent him that letter. Christianson agrees that "the application of the discovery rule controls the result in this appeal," but advances various arguments to support his contention that the court erred factually and legally. He also argues that the court erred in resolving the "reasonable inquiry" issue.
Alaska applies a three-year statute of limitations for professional malpractice actions.
If a person makes a reasonable inquiry that does not reveal the elements of the cause of action within the limitations period while a reasonable time remains within which to file suit, the discovery rule tolls the running of the limitations period until a reasonable person would obtain actual knowledge of, or would again be prompted to inquire into, the cause of action.
The discovery rule therefore simply determines when the cause of action accrues for purposes of triggering the applicable limitations period.
The first question is whether, as the superior court ruled, Christianson was put on inquiry notice by Great Divide's September 24, 2004 letter. That legal question turns on whether the superior court committed clear error in finding the facts that led it to conclude that Christianson had "enough information to alert him that he should begin an inquiry to protect his rights." The next question is whether Christianson made a reasonable inquiry that did not timely reveal all elements of his cause of action. That question turns on whether the superior court committed clear error in finding facts bearing on what Christianson would have learned had he made an inquiry after receiving the September 24, 2004 letter. It also turns on whether the court failed to make fact findings material to the reasonable-inquiry issue and therefore committed legal error.
After conducting the evidentiary hearing, the superior court made findings of fact about the information Christianson possessed when or soon after he received the September 24, 2004 letter. We quoted its pertinent findings above, in Part II.B.
In summary, the court found that the letter told Christianson he had to "protect [his] own interest" and should consider consulting an attorney to respond to Jones's complaint. It found that the liability insurer had effectively disclaimed its duty to defend Christianson. It found that the letter disclosed a "preliminary determination" that the accident did not trigger the duty to defend. It
Christianson disputes these findings. We review them for clear error.
But before beginning that analysis, we consider the undisputed facts in their most elemental form. As of the fall of 2004, Christianson had expected CHI to procure insurance coverage for his landscaping activities. He knew Jones was suing him for reasons connected with those activities. He knew Great Divide, following his tender, had not provided him a defense. He knew Great Divide had identified two policy provisions that potentially foreclosed coverage. He knew he was incurring defense costs. Those circumstances were enough to put him on notice that he needed to make an inquiry to determine why Great Divide was not providing him a defense — including asking whether CHI had failed to secure adequate insurance for his businesses.
Gudenau & Co. v. Sweeney Insurance, Inc. is analogous.
Once Christianson began incurring defense costs, all elements of the alleged tort — the claim he filed almost four years later — were present: duty (to use adequate professional skill); breach of the duty (in failing to secure coverage allegedly requested or to recommend that GALL get coverage); causation (of the coverage gap by the alleged breach); and damages (from incurring defense costs).
Moreover, the evidence persuades us that the superior court's findings of fact concerning the content and effect of the letter are not clearly erroneous. After Christianson
The letter also called attention to the employee exclusion and stated: "Should it be determined or confirmed through the investigation... that Keith Jones was an employee of Titan Enterprises, LLC ... at the time of the incident, Great Divide Insurance Company may refuse to defend or indemnify you for this matter." Christianson knew Jones was a Titan employee and therefore knew Great Divide's employee exclusion was factually applicable to Jones's personal injury claims. Christianson has not discussed any theory that might have justified a reasonable belief in 2004 that this exclusion was inapplicable on legal or factual grounds. He has likewise not discussed any theory that would have justified a reasonable belief Great Divide might have a change of heart.
Christianson also knew GALL, not Titan, owned the hydroseeder and the truck carrying it. Christianson knew he had sought coverage for the equipment that was to be used in Titan's operations and believed he had talked with CHI about GALL. He knew he had given CHI his vehicle registrations, including those for vehicles owned by GALL, and thus the registration for the equipment central to Jones's lawsuit against Christianson. And from his communications with CHI when the insurance was being placed, he must have known the facts that later caused him to testify that CHI had not told him that he should insure GALL or vehicles registered to GALL. He does not claim CHI ever told him that the truck or hydroseeder was covered by any liability insurance obtained by CHI.
Normally no duty to inquire can be imposed under the discovery rule unless the plaintiff should know he has suffered some loss attributable to the defendant,
The dissenting opinion contends that Jarvill v. Porky's Equipment, Inc.
Christianson does not contend that he was unaware that Great Divide's conduct, as described in its September 24, 2004 letter, was causing him to incur significant expenses. He does not appeal the superior court's finding that "[a]t least for the time being, Mr. Christianson was on his own and began incurring actual damages in the form of litigation costs." Christianson began to incur attorney's fees almost immediately. He was
The dissent contends that there was only a "potential future injury" and that Christianson "had not yet suffered an injury attributable to CHI." These contentions are incorrect. He was suffering an injury attributable to CHI's alleged malpractice because he was paying expenses an insurer would have borne had CHI secured the coverage Christianson claimed he had expected.
Nor does the theoretical possibility his out-of-pocket defense expenses might be reimbursed in the future obviate the fact Christianson was then suffering an actual injury that triggered the duty of inquiry as a matter of law. The possibility an insurer might later indemnify an insured party does not stop the statute of limitations from running once the party has been injured by the insurer's failure to defend.
The dissent argues that Christianson could not then (in the fall of 2004) have sued CHI for malpractice. This contention mis-comprehends the discovery rule, which presupposes that a person who knows enough to have a duty to inquire may not yet know enough to file suit — that is, he has not yet discovered all of the existing elements of his cause of action. The issue to be decided by the superior court was whether Christianson had sufficient knowledge as of the fall of 2004 to require him to inquire whether he had a cause of action related to Great Divide's refusal to defend him in the Jones litigation.
Christianson advances three main contentions in arguing that the superior court misinterpreted the September 24, 2004 letter.
He first contends that the letter did not disclaim the duty to defend. We conclude that the superior court did not misinterpret the letter and did not clearly err in characterizing it as disclaiming a duty to defend Christianson. The letter on its face conveyed that message, even though it purported to reserve a future right to reimburse reasonable defense costs following Great Divide's coverage investigation. The letter made it clear that the insurer was not providing Christianson a defense in Jones's personal injury lawsuit, and instead told Christianson to defend himself.
Christianson notes that the September 24, 2004 letter held out the possibility that Great Divide would reimburse him for reasonable defense costs if it concluded after investigation that there was coverage. But that message does not negate the letter's meaning or effect, and Christianson himself apparently read the letter as presently denying him a defense, because he promptly retained counsel to defend him, at substantial personal expense.
Similarly, Christianson asserts that the letter's discussion of exclusions was not unusual and did not inform him that his tender would ultimately be rejected. He also asserts that his vigorous defense in Great Divide's declaratory judgment action shows he genuinely believed he was covered, and that the federal court's later declaration of no coverage did not prove that his position was frivolous or that he had believed it had no merit. These assertions do not demonstrate any error by the superior court in interpreting the letter and its effect on a reasonable person; the superior court simply had to decide whether Christianson was on inquiry notice. Christianson's subjective belief did not preclude a finding of fact that the letter would cause a reasonable person with Christianson's knowledge to realize there was a question about whether the broker was responsible for the potential coverage gap identified in Great Divide's letter. Christianson's alleged "good faith belief" in contesting Great Divide's 2006 declaratory judgment action does not demonstrate that the court clearly erred in interpreting the letter or in finding that it put Christianson on inquiry notice in 2004. Moreover, Christianson has offered no analysis of the September 24 letter that would plausibly demonstrate any reason to think, in 2004 or now, that Great Divide's policy actually
Second, Christianson contends that Great Divide's March 15, 2006 letter finally denying any duty to defend shows that Great Divide's September 24, 2004 letter had not denied a duty to defend. But neither the sending nor the content of the 2006 letter renders clearly erroneous the superior court's interpretation of the 2004 letter and its effect on the application of the discovery rule.
And, notwithstanding the dissent's contentions, the insurer's actual failure to defend Christianson in 2004 made irrelevant to the inquiry-notice issue any contention that the September 24, 2004 letter did not convey a final, absolute refusal to defend.
Third, Christianson contends that insurance companies rarely accept a tender without a reservation of rights. But Great Divide did not accept his tender and defend him under a reservation; it instead told him he should defend himself, causing him to begin suffering damages.
The superior court's findings of fact about what the September 24 letter said are not clearly erroneous.
Christianson argues that, despite the letter, he was not put on inquiry notice.
In addition to the letter, the superior court's inquiry-notice ruling relied on findings that Christianson had asked his broker to purchase "all-inclusive" insurance; that Christianson knew Jones was a Titan employee; and that Great Divide's failure to defend him was causing him to incur "actual damages in the form of litigation costs." These findings are not clearly erroneous, and Christianson does not challenge them on appeal.
Christianson seems to argue that the court should have found additional facts that he thinks were relevant to the inquiry-notice issue: that he had a good-faith belief he was covered when he contested Great Divide's declaratory judgment action; that Dennis did not admit, until he was deposed in 2006, he had failed to recommend purchasing needed
Christianson's arguments have little or no relevance to the inquiry-notice issue. And they do not show that the superior court committed any legal or factual error.
We assume without deciding that a broker's reassurances that could persuade a reasonable client that the broker had obtained the needed insurance coverage or had been professionally faultless could be relevant to the inquiry-notice issue.
But there is no evidence of such reassurances here. Christianson asserts that CHI, through Dennis, had represented that Christianson and his companies were fully covered for Jones's injury. The testimony he cites only concerns reassurances about the workers' compensation coverage, not the accuracy of Great Divide's letter or the application of the employee exclusion to the Jones lawsuit.
No reassurances based on workers' compensation could have obviated the duty to inquire: Despite the workers' compensation remedy and the exclusive liability statute, Jones had sued Christianson, causing him to incur defense costs. For purposes of the discovery rule, no reassurances concerning workers' compensation could have been so compelling that the superior court could be regarded as having erred legally or factually.
Moreover, if Dennis told Christianson he was "covered" by workers' compensation, it was potentially relevant only to the merits of Jones's lawsuit; it was irrelevant to the question of whether Great Divide's exclusion applied to Jones's claims or to the question of whether the broker had breached the duties Christianson later claimed it owed him. No insurer, including the workers' compensation insurer, was defending Christianson against Jones's lawsuit; a reassurance that the exclusive liability statute barred Jones's lawsuit could not have satisfied a reasonable person, because it did not address Christianson's exposure to substantial defense expenses. Consequently, a defendant raising the exclusive liability issue as a defense to the tort suit should have realized that the defense might not be successful, that CHI's reassurance might be incorrect,
Failing to find facts relevant to a material, factual dispute could be legal error,
The superior court concluded that a reasonable person in Christianson's "circumstances would have had enough information to alert him that he should begin an inquiry to protect his rights." It held that Christianson "had a duty to investigate all potential claims, including those against his broker." Because the circumstances put Christianson on notice of the likelihood there was a coverage gap, of the possibility his broker was responsible for that gap, and of the certainty he was suffering financial harm, the court's inquiry-notice rulings were not factually or legally erroneous.
It is irrelevant there were other possible explanations, not implicating CHI, why Christianson was incurring defense costs. As we stated in Gudenau & Co. v. Sweeney Insurance, Inc.,
The existence of other possibilities did not excuse or satisfy a duty to inquire.
This does not mean that Christianson then had to know enough either to sue CHI for professional malpractice or to decide whether Great Divide had erroneously interpreted its insuring duties. For purposes of applying the discovery rule, the superior court only had to decide whether Christianson knew enough to put him on notice that he should inquire whether he had a cause of action against CHI.
We hold that the superior court did not err in holding that Christianson was on inquiry notice.
The superior court ruled that because Christianson was on inquiry notice and because a reasonable inquiry would have revealed the essential elements of the cause of action, the statute of limitations began to run on September 24, 2004.
Under the discovery rule, a cause of action "accrues if, within the statutory period, the essential elements [of the cause of action] may reasonably be discovered."
The dissent argues that the superior court "erred by failing to make findings about whether Christianson's inquiry was reasonable," but Christianson did not preserve that argument. His opening appellate brief does not argue that the superior court failed to make findings about reasonableness; it instead argues that the court failed to consider his inquiry, specifically, his tender to Cascade National in 2007. Only one sentence of his reply brief claims that the court made no finding about reasonableness. He asserts there that the superior court never found that his inquiry was not reasonable. Failing to make a finding is not the same as failing to consider a fact.
Even if the issue had been preserved, Christianson discusses no evidence that would have permitted a finding that he made an objectively reasonable inquiry that delayed the running of the limitations period. The statute of limitations is tolled if "a person makes a reasonable inquiry which does not reveal the elements of the cause of action within the statutory period at a point where there remains a reasonable time within which to file suit."
The superior court made pertinent findings. It found that "[a] reasonable inquiry would involve an investigation of both his insurer's position and the actual coverage that his broker obtained for him." It found that "an inquiry [in October 2004] would have revealed ... that CHI failed to advise Mr. Christianson of the need to obtain coverage for the continued operation of GALL's hydroseeder. The inquiry would also have revealed that Cascade National was unwilling to cover the loss." Given what Christianson actually did and did not do after Jones sued and after Great Divide sent the September 24, 2004 letter, we read these findings as effectively finding that Christianson did not make a reasonable inquiry. And the superior court's discussion of what facts a reasonable inquiry would have revealed, given Christianson's undisputed failure to learn those facts, would preclude a finding that he had made a reasonable inquiry.
There is no evidence Christianson contacted CHI to determine whether there was a gap in his liability coverage, and if there was, whether CHI was responsible for that gap. His only contacts with CHI after Jones sued him appear to have resulted in reassurances that Jones's exclusive remedy was workers' compensation. No reassurances on that topic could have justified a reasonable belief that CHI had obtained liability insurance covering Christianson for Jones's lawsuit and covering his defense expenses in that action. Any reasonable inquiry would have promptly revealed that workers' compensation did not bar Jones's tort lawsuit. Jones's exclusive remedy against Christianson in Christianson's capacity as owner or operator of Titan
Christianson also asserts that the superior court "ignore[d] the significance" of the admissions made by Dennis at his deposition in 2006. But the court took that deposition into account when it found the same information would have been revealed if Christianson had inquired in 2004. The court also implicitly found Christianson's inquiry was unreasonable because he had not learned that information sooner. Christianson also seems to argue that only in 2006 did Dennis's admissions reveal any failure by CHI; he asserts that until then, Dennis represented that Christianson and his companies were "fully covered for Jones'[s] injury." But Christianson never testified that Dennis told him any insurer, including Great Divide, owed Christianson a defense in the Jones lawsuit or would indemnify his potential liability to Jones. Christianson's description of Dennis's reassurances cannot be read as reassurances that CHI had obtained any liability insurance that covered Christianson in Jones's tort suit.
Nor was there any evidence Christianson made other efforts to determine whether he in fact had liability coverage for the Jones lawsuit. It should have been readily apparent to him that Great Divide was probably correct in thinking the employee exclusion applied. Christianson has offered no analysis of the September 24 letter or Great Divide's policy that would demonstrate any plausible reason to think then or now that Great Divide's insurance policy actually covered him in Jones's lawsuit. Christianson's allegations of good faith in contesting Great Divide's declaratory judgment action do not demonstrate that he made a reasonable inquiry or that the superior court clearly erred.
Christianson contends that the superior court ignored "the circumstances and legal significance" of his tender to Cascade National, Titan's auto insurer. That contention is answered by the superior court's finding that a reasonable inquiry in the fall of 2004 would have revealed that Cascade National was unwilling to cover the loss. Christianson has not shown that finding was clearly erroneous. Moreover, he refers us to no evidence he thought in 2004 that Cascade National's policy covered Jones's claims. Indeed, he refers us to no evidence he thought in 2004 he had any liability coverage other than Great Divide's. Even after Great Divide declined in 2004 to defend him, causing him to begin incurring defense costs, he did not tender defense of the Jones lawsuit to Cascade National until 2007. He likewise refers us to no evidence that it would have been reasonable for him to think that CHI, by obtaining the Cascade National auto coverage for Titan, had discharged its alleged professional duty to obtain insurance protecting him from claims based on use of vehicles owned by GALL.
Christianson's opening appellate brief implies that an insurance form produced from the CHI files at the 2006 deposition of Dennis caused him to tender the defense to Cascade National. But because Christianson claims he first learned of that form in 2006, it could not have caused him to think in 2004 that CHI had obtained coverage for suits like Jones's; the form he first saw in 2006 likewise could not have justified his failure to make a reasonable inquiry after he received Great Divide's September 24, 2004 letter. On the other hand, the availability of the form in CHI's file supports the superior court's finding that the same information would have been available upon request made to CHI had Christianson made any reasonable inquiry after receiving Great Divide's letter. Given the conceded importance of liability insurance to Christianson after Jones sued, and given that Christianson was personally paying for his own defense, it was unreasonable for Christianson to fail to ask CHI for the Cascade National policy until Dennis was deposed in November 2006.
The superior court did not clearly err or commit legal error in resolving the reasonable-inquiry issue.
Christianson argues that the superior court's decision has practical and public policy implications, such as encouraging excessive or premature malpractice litigation.
The discovery rule can sometimes give rise to tension between a claimant's need to make timely claims and a possible social desire to discourage avoidable malpractice lawsuits. And we assume, as Christianson implies, that a party defending himself in a personal injury lawsuit or in an insurer's action seeking a no-coverage declaration would prefer not to be distracted from his defense efforts by having to inquire about his insurance broker's possible malpractice or having to sue the broker for malpractice. But what the discovery rule effectively does — requiring a party to take steps to protect its interests — is simply a reflection of what the statutes of limitations do.
Potentially conflicting social interests do not broadly vitiate the discovery rule, or indeed, the applicable statute of limitations. Nor do they prevent the discovery rule's application here, where such tensions might have been easily mitigated. Reasonable inquiry would have given Christianson that information in ample time to sue CHI before the statutory period expired or to obtain CHI's agreement to extend the limitations period until after any coverage and liability issues were resolved. And in any event, Christianson had a full three years after he began incurring defense costs in which to sue or reach an extension agreement with CHI.
Public policy was not somehow violated by applying the discovery rule to Christianson.
Finally, Christianson argues briefly that the limitations period equitably tolled. As CHI points out, he did not raise this issue in the superior court. We also conclude that he did not brief it adequately in this court and has consequently waived the argument.
While rightly conceding that Christianson did not raise equitable tolling in the superior court and did not adequately brief the issue on appeal, the dissent would nonetheless hold that the limitations period was equitably tolled while the insurance companies' declaratory judgment actions and Jones's personal injury lawsuit were pending. But because the superior court in conformity with our precedent held an evidentiary hearing to resolve the factual disputes relevant to the lawsuit's timeliness,
The dissent would apply Brannon v. Continental Casualty Co.
Brannon concerned the timeliness of an insured's claims against his liability insurer. We adopted California's equitable tolling rule in duty-to-defend cases and held that although an insured may immediately file a contract action against the insurer for breach of the duty to defend, the insured is not required to do so.
The dissent argues that a party should not be required to defend two lawsuits simultaneously. In Part IV.C we considered and rejected Christianson's equivalent policy argument. And Brannon would not prevent simultaneous lawsuits even if no broker claim were being made: An insurance company (or an insured) may always sue seeking a declaration on coverage issues before the underlying lawsuit ends. We there recognized that any party could immediately ask a court to construe the insurance contract rather than wait for any underlying litigation to end, stating, "[t]he California approach ... allows (but does not force) an insured to file suit for breach immediately after the insurance company denies the defense."
The rule proposed by the dissent would permit a broker like CHI to be sued for malpractice many years after it placed the insurance and the insured began suffering actual damages from the broker's alleged malpractice. This is not the case to adopt such a sweeping change.
The dissent, in discussing equitable tolling, relies on Peat, Marwick, Mitchell & Co. v. Lane.
Equitable tolling would not excuse the untimeliness of Christianson's lawsuit or justify remand.
We AFFIRM the judgment of the superior court.
CARPENETI, Chief Justice, not participating.
FABE, Justice, dissenting.
FABE, Justice, dissenting.
Because I disagree with the court's application of the discovery rule in this case, I respectfully dissent. "Under the discovery rule, a cause of action accrues `when a person discovers, or reasonably should have discovered, the existence of all elements essential to the cause of action.'"
The court concludes that the superior court did not err in finding that "the statute of limitations began running [on September 24, 2004,] when Christianson learned information that should have caused him to make an inquiry that would have discovered the essential elements of his cause of action against CHI."
In Thomas v. Cleary, we held that suspected future harm is not enough to ripen a claim of professional malpractice.
And we also held that, even though the Clearys knew about the accountant's misconduct and knew that they would be liable if the IRS ever did assess a deficiency, they had not yet suffered the required injury because the IRS had not yet assessed a tax deficiency against them: "Even if [the client] discovers [the professional's] negligent acts before he suffers damages, the cause of action for malpractice is not complete until actual damages are suffered."
The present case is similar. Christianson's malpractice claim against CHI was not yet ripe when Christianson received Great Divide's September 24, 2004 letter because the letter left open the possibility that Great Divide would defend Christianson or reimburse him for a defense. The letter said only that Great Divide "may refuse to indemnify [Christianson] in this matter" (emphasis added) and that Great Divide would provide Christianson with its position regarding coverage sometime in the future. If, after sending the letter, Great Divide (or one of Christianson's other insurers) had provided coverage instead of denying it, Christianson would not have been harmed and would not have had a cause of action. Prior to an actual denial of coverage from Great Divide, any injury from CHI's alleged malpractice was purely speculative. Therefore, Christianson's claim for malpractice could not have ripened before a formal denial of coverage.
The court places great emphasis on the fact that Christianson incurred defense costs after Great Divide's September 24, 2004 letter informed him that Great Divide "may refuse to defend or indemnify [him] for this matter." The court cites to cases from other jurisdictions to support its contention that the fact of incurring attorney's fees completes the elements of a malpractice tort claim against an insurance broker and triggers the statute of limitations.
As we held in Jarvill v. Porky's Equipment, Inc., the statute of limitations on a claim cannot begin to run until the claim is ripe.
On appeal we rejected the argument of Porky's Equipment.
In my view, the present case is indistinguishable from Porky's Equipment. No matter what Christianson should have suspected when Great Divide first informed him it was considering denying his claim, he had no right of action against CHI until he had actually been denied insurance coverage. Like the warning that the boat's hull was too thin, Great Divide's letter signaled potential future injury. But it was only when the boat actually sank that harm was done and a claim accrued; if the boat had stayed afloat, there would have been no claim. And if, after sending its initial letter, Great Divide had provided coverage and reimbursed Christianson for his defense, then Christianson would have had no right of action against CHI for malpractice. Therefore, Christianson's claim could not have been brought when he received Great Divide's letter, and the statute of limitations cannot have started to run then.
The court claims that it is irrelevant to the discovery rule issues whether or not Christianson could have filed a malpractice lawsuit against CHI after receipt of Great Divide's
The superior court found that a reasonable person, looking at Great Divide's September 24, 2004 letter, would have felt absolutely certain that Great Divide would eventually deny coverage, and that therefore the letter was as good as a formal denial. The superior court concluded that Christianson suffered injury in September 2004. Today the court concludes that this finding was not clearly erroneous.
The superior court found that the letter was an actual denial of coverage for two reasons. First, the superior court found that the letter essentially informed Christianson that he "was on his own" and that Christianson began incurring damages shortly thereafter. Second, the superior court found that the letter's discussion of exclusions in Christianson's policy informed him that he was not covered. In my view, the superior court's analysis on both of these points was incorrect.
I conclude that it was plain error to interpret Great Divide's September 24, 2004 letter as a definitive denial of coverage. The letter stated clearly and repeatedly that Great Divide was not yet denying coverage or a defense. Specifically, the letter stated: "We have assigned [an adjuster] to investigate the circumstances of this incident.... Once the investigation has been conducted, we will review the information and documentation obtained.... We will then provide you with our position regarding coverage." (Emphasis added.) It also indicated that "Great Divide may refuse to defend or indemnify you for this matter." (Emphasis added.) Great Divide could have decided to defend Christianson without contradicting anything it wrote in the letter.
The superior court's attempt to reconcile this clear language with its conclusion that Great Divide's letter actually denied coverage led to factual findings that contain internal
The superior court also placed great weight on Great Divide's statement that it would be "necessary for [Christianson] to protect [his] own interest in regard to the Complaint." The superior court found that this phrase was "critical" and interpreted it to mean that "Great Divide was effectively disclaiming its duty to defend Mr. Christianson." But this phrase was sandwiched between important qualifying language, which the superior court failed to discuss. Immediately before, Great Divide indicated that such action would only be necessary "[i]n the interim" until it provided Christianson with its "position regarding coverage." And later in the same paragraph, Great Divide promised to reimburse Christianson "[s]hould we determine that we do in fact have a duty to provide a defense in this matter." I would hold that it was clear error to interpret these plainly noncommital statements as a definitive denial of coverage.
The superior court's analysis is not saved by its insistence that the letter forced Christianson to provide his own defense. Because Great Divide explicitly left open the possibility that it would reimburse Christianson for this expense, Christianson had not yet suffered any injury attributable to CHI. The strongest claim that the facts will bear is the court's observation that "[Christianson] was therefore aware he was presently suffering an out-of-pocket loss [for which] Great Divide might not reimburse him...."
It was also clear error for the superior court to find that Great Divide's discussion in the September 24, 2004 letter of exclusions in Christianson's policy was equivalent to an actual disclaimer of the duty to defend and indemnify. This is essentially a finding that, through careful analysis of the policy exclusions, Christianson could have predicted that Great Divide would eventually deny coverage. But we have rejected the idea that the insured should be expected to go beyond the express representations of his insurer to divine the scope of his coverage. In Gudenau & Co., Inc. v. Sweeney Insurance, Inc., we concluded that "[i]nsurance policy exclusions do not necessarily have independent meaning for a layperson" and held that the statute of limitations began to run not when the insured read his policy, which contained an exclusion of coverage, but when the insurer actually rejected the claim.
And engaging in a murky and fact-sensitive inquiry into whether a hypothetical reasonable person would, despite Great Divide's express language to the contrary, treat the September 24, 2004 letter as a definitive denial of a defense is inconsistent with the bright-line nature of a statute of limitations. "Statutes of limitations should be capable of application without engendering extensive litigation before the case on the merits is litigated. Thus, in theory, the statutes of limitations should begin to run on the occurrence of a definitive event."
I conclude that Christianson's malpractice claim was not yet ripe and that the statute of limitations on his claim did not begin to run until Great Divide formally denied coverage
Even if the statute of limitations period would otherwise have started upon receipt of the September 24, 2004 letter, the equities of the case demand that the statute of limitations be tolled until the conclusion of Christianson's underlying litigation with Jones and Christianson's insurers. The equitable tolling doctrine "relieve[s] a plaintiff from the bar of the statute of limitations when he has more than one legal remedy available to him."
It should be noted that Christianson did not argue below that the statute of limitations on his malpractice claim should be equitably tolled while he was pursuing other legal remedies. Nor was the issue adequately briefed before us. But in Larson v. State,
After Christianson received Great Divide's September 24, 2004 letter, he litigated three other actions before filing his claim for malpractice against CHI. First, he defended himself in the personal injury suit filed by Jones, the Titan employee who was injured using the hydroseeder. Second, Christianson litigated a declaratory judgment action filed by Great Divide for non-liability. Finally, Christianson litigated a similar action filed by Cascade National. In my view, all three of these actions demand that the statute of limitations on Christianson's malpractice claim be tolled.
In Brannon v. Continental Casualty Co., we examined a similar situation.
On review we adopted the rule that "although the statutory period for breach of the duty to defend commences upon the refusal to defend, it is equitably tolled until the underlying action is terminated by final judgment."
In addition to preventing injustice to the insured, we also recognized that tolling the statute of limitations would "promote judicial economy, lead to certainty of damages, and assist courts by establishing a `bright-line rule'" about the statute of limitations period.
In September 2004 Titan employee Keith Jones sued Christianson to recover for injuries sustained while using a hydroseeder. The fact that Christianson was being sued and was required to defend himself justifies tolling the statute of limitations on his claim for malpractice for the same reason it justified tolling the statute of limitations in Brannon: It would be unjust to require Christianson to defend himself against Jones and to litigate against his insurance broker at the same time. Christianson would otherwise be required to litigate two cases simultaneously when it was only because of CHI's alleged negligence that Christianson was required to litigate even one.
There is also a clear interest in judicial economy and certainty of damages to be served by allowing Christianson to bring his malpractice claim after judgment has been entered in the underlying lawsuit. The full extent of the damages allegedly caused by CHI's negligence could not be known until the defense had been paid for and judgment entered in the underlying suit. And such a holding would create a bright-line rule without the need for speculative findings. I therefore believe the equities of this case are indistinguishable from those in Brannon.
Christianson also litigated declaratory judgment actions against his insurers, and the statute of limitations on Christianson's malpractice suit should have been tolled pending resolution of these claims. Requiring Christianson to proceed against CHI while litigating declaratory judgment actions against his insurers would force him to take contradictory positions. In the declaratory judgment actions he would seek to show that Great Divide or Cascade National owed him a defense. In the malpractice suit he would seek to show the opposite — that CHI negligently left him exposed to liability. Forcing him to take these contradictory positions at the same time could prejudice him in both actions.
Several jurisdictions have determined that requiring a litigant to take these types of contradictory positions is "untenable."
The fact that Great Divide and Cascade, not Christianson, initiated the declaratory judgment actions to litigate the scope of coverage seems of little consequence to the analysis of equitable tolling in this case. Christianson was actively litigating the question of coverage in both declaratory judgment actions, and if Christianson had prevailed in either action, his subsequent suit against CHI would have been unnecessary. He therefore had multiple legal remedies available to him regardless of which party filed the complaint in those cases. I conclude that the equities in this case require the statute of limitations to be tolled until the resolution of the lawsuit against Christianson and the resolution of the declaratory judgment actions with Christianson's insurers.
Our well-established equitable tolling doctrine requires that, in addition to establishing the proper equities of the case, three conditions must be met before a statute of limitations may be tolled: "(1) pursuit of the initial remedy gives defendant notice of plaintiff's claim, (2) defendant's ability to gather evidence is not prejudiced by the delay, and (3) plaintiff acted reasonably and in good faith."
It appears that these conditions were similarly satisfied in this case as a matter of law.
And CHI was not prejudiced by any delay. Once CHI was on notice of its potential liability, it had the ability and motivation to gather evidence to defend itself.
Citing Gudenau & Co., Inc. v. Sweeney Insurance, Inc.,
In my view, it was error to conclude that the statute of limitations on Christianson's malpractice claim started to run on September 24, 2004. Christianson had not yet suffered a definite injury, and so an essential element of his claim had not yet accrued. I also believe that the statute of limitations in this case should have been tolled until the resolution of Christianson's underlying litigation. I therefore respectfully dissent.
The superior court did not precisely describe the gap in the auto policy Cascade National issued to Titan. It seems to have arisen out of the fact that the truck carrying the hydroseeder was most recently registered to GALL, not Titan. Apparently no auto policy covered GALL at the time of the accident.
That description also raises an immaterial dispute. The finding the court did make was the foundation for the court's inquiry-notice ruling. Any dispute about whether the letter also denied a duty to indemnify is irrelevant to this appeal because the letter failed to accept the defense tender. A liability insurer's duty to defend is broader than its duty to indemnify. See, e.g., Afcan v. Mut. Fire, Marine & Inland Ins. Co., 595 P.2d 638, 645 (Alaska 1979) ("[T]he insurer may have an obligation to defend although it has no ultimate liability under the policy."). Whether or not its letter also denied coverage or a duty to indemnify, Great Divide's failure to defend Christianson would have breached its defense duty if its policy covered Christianson.
Whether an inquiry was reasonable is a "genuine issue[] of material fact which must be resolved at an evidentiary hearing." Id. at 908. We have held that, where the plaintiff has made an inquiry, the court should ask not whether an ideal inquiry would have produced knowledge, but whether the inquiry that was made was reasonable. Id.
The superior court failed to examine whether Christianson's inquiry was reasonable under this standard. Christianson investigated the existence of a claim for malpractice against CHI by tendering the defense to his insurers and litigating the scope of their obligations in declaratory judgment actions. Only three sentences in the superior court's opinion conceivably relate to the issue of whether this inquiry was reasonable, and they are all merely observations about the characteristics of an ideal inquiry:
Today this court reads these "as effectively finding that Christianson did not make a reasonable inquiry." Op. at 405. But these sentences contain no such finding; they do not examine Christianson's conduct at all. Instead of examining whether "a plaintiff's particular inquiry ... was reasonable," the superior court examined whether "a reasonable inquiry would have produced knowledge," an approach we identified as clear error in Pedersen. 822 P.2d at 908.
