LAU, J.
¶ 1 Progressive Casualty Insurance Company appeals the order granting partial summary judgment in Tyler Ainsworth's favor on his income continuation (wage loss) benefit claim under applicable provisions of his automobile insurance policy.
¶ 2 On July 14, 2010, Tyler Ainsworth suffered neck and back injuries on Interstate 5 in Seattle when an "18 wheeler" tractor trailer truck traveling 50 to 55 miles per hour rear-ended the car he was driving.
¶ 3 Progressive's claim representative, Michelle Becerra, calculated the amount of wage loss benefits.
¶ 4 Becerra obtained medical updates from Ainsworth's primary care physician, Dr. Christopher Smith. In a letter dated September 21, 2010, Dr. Smith stated that Ainsworth was "making excellent progress" and indicated that he could resume full-time work, "[w]ith [r]estrictions," on October 15, 2010. Dr. Smith specified, "Current restrictions are lifting no more than 50 pounds. Rarely more than 25 pounds. [Ainsworth] will need more frequent rest breaks. Ten minutes per hour." He also noted that the restrictions would remain in effect pending a "follow-up visit in 3 to 4 weeks." Finally, he indicated that he had "not yet determined" the date on which Ainsworth would regain the ability to work without restrictions.
¶ 5 On September 27, 2010, Becerra noted in Progressive's claim log that she "rcvd [sic] clarification from Dr. Smith re: Tyler wage loss." (Formatting omitted). Her note continued, "As of 10/15/10 [Ainsworth] can increase to 8 hrs day." (Formatting omitted.)
¶ 6 Progressive stopped paying Contour wage loss benefits on October 14, 2010. The next day, Ainsworth returned to work at Contour as a full-time, hourly employee. He later claimed 60 hours of work missed in October and November 2010 due to medical appointments with various health care providers for injury-related treatment.
¶ 7 On December 7, 2010, Ainsworth requested additional wage loss benefits for the Contour wages he lost while attending these medical appointments. Progressive denied the claim. It concluded that Ainsworth's contractual entitlement to wage loss benefits ended on October 15, 2010, the date Dr. Smith released him to resume restricted full-time work. In a letter dated December 29, 2010, Becerra denied additional benefits, explaining that Progressive's obligation to pay wage loss benefits under the policy ended on "the date on which the insured person is reasonably able to perform the duties of his or her usual occupation...." She stated, "We have not received anything to date that Mr. Ainsworth is not able to perform the duties of his usual occupation. Therefore, additional wage loss is not owed."
¶ 8 Ainsworth sued Progressive, alleging breach of contract, a violation of IFCA based on the failure to pay wage loss benefits due under the policy, and other claims not relevant in this appeal. He then moved for partial summary judgment, arguing it was undisputed that he lost Contour and Pagliacci wages due to accident-related bodily injuries. He calculated that Progressive owed him $5,458.18 in unpaid benefits — $736.12 for lost Contour wages and $4,722.06 for lost Pagliacci wages. He asked the court to award unpaid benefits as contract-based damages, along with attorney fees and costs. He also asked the court to enhance his award under IFCA's treble damages provision, RCW 48.30.015(2).
¶ 9 Progressive responded, arguing that its duty to pay wage loss benefits for lost Contour wages terminated as a matter of law when Ainsworth resumed restricted full-time employment on October 15, 2010. It also argued, "With regard to Pagliacci, Plaintiff has never provided any note from a doctor restricting him from Pagliacci and has admitted that he never received a restriction relating to this employer." It then argued that no IFCA violation occurred, since the record contained no proof that it unreasonably denied Ainsworth's claim for wage loss.
¶ 10 The trial court granted Ainsworth's partial summary judgment motion, ruling, "The uncontested medical evidence is that Plaintiff, the insured, was not `reasonably able' to perform the duties in his two jobs
¶ 11 In this action to recover personal injury protection (PIP) wage loss benefits, Progressive contends that it properly paid wage loss benefits "throughout Ainsworth's convalescence" and stopped payments only when Ainsworth's doctor released him to work full-time on October 15, 2010. Br. of Appellant at 5. It relies on policy language that states benefits end when the insured is "reasonably able to perform the duties of his or her usual occupation." It also contends no benefits are payable for wage loss to attend medical appointments and Ainsworth failed to mitigate his damages. Ainsworth responds that Progressive raised no material issues of fact that he "remained medically restricted" from performing his usual job duties or failed to mitigate his damages. Resp't's Br. at 20.
¶ 12 When reviewing a grant of summary judgment, we engage in the same inquiry as the trial court. RAP 9.12; Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 737, 844 P.2d 1006 (1993). Summary judgment is appropriate only when, after reviewing all facts and reasonable inferences in the light most favorable to the nonmoving party and all questions of law de novo, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
¶ 13 An affidavit "`does not raise a genuine issue of fact unless it sets forth facts evidentiary in nature, i.e., information as to what took place, an act, an incident, a reality as distinguished from supposition or opinion.'" Johnson v. Recreational Equip., Inc., 159 Wn.App. 939, 954, 247 P.3d 18 (2011) (quoting Snohomish County v. Rugg, 115 Wn.App. 218, 224, 61 P.3d 1184 (2002)). "Likewise, ultimate facts, conclusions of fact, conclusory statements of fact or legal conclusions are insufficient to raise a question of fact." Rugg, 115 Wash.App. at 224, 61 P.3d 1184. A party opposing a motion for summary judgment may not rely on speculation, argumentative assertions that unresolved factual issues remain, or its affidavits considered at face value. Rather, the nonmoving party must set forth specific facts that sufficiently rebut the moving party's contentions and disclose that a genuine issue as to a material fact exists. Herman v. Safeco Ins. Co. of Am., 104 Wn.App. 783, 787-88, 17 P.3d 631 (2001).
¶ 14 "The courts liberally construe insurance policies to provide coverage wherever possible." Bordeaux, Inc. v. Am. Safety Ins. Co., 145 Wn.App. 687, 694, 186 P.3d 1188 (2008). Construction of an insurance policy is a question of law. Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wn.2d 50, 65, 882 P.2d 703 (1994). We examine the policy "to determine whether under the plain meaning of the contract there is coverage." Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 576, 964 P.2d 1173 (1998). "Terms undefined by the insurance contract should be given their ordinary and common meaning, not their technical, legal meaning." Allstate Ins. Co. v. Peasley, 131 Wn.2d 420, 424, 932 P.2d 1244 (1997). Terms in an insurance policy "must be given a fair, reasonable, and sensible construction as would be given by an average insurance purchaser." Mid-Century Ins. Co. v. Henault, 128 Wn.2d 207, 213, 905 P.2d 379 (1995). We interpret an insurance contract from the point of view of the average person
¶ 15 "A determination of coverage involves two steps: first, `[t]he insured must show the loss falls within the scope of the policy's insured losses.'" Moeller v. Farmers Ins. Co. of Wash., 173 Wn.2d 264, 271-72, 267 P.3d 998 (2011) (alteration in original) (quoting McDonald v. State Farm Fire & Cas. Co., 119 Wn.2d 724, 731, 837 P.2d 1000 (1992)). "Then, in order to avoid coverage, the insurer must `show the loss is excluded by specific policy language.'" Moeller, 173 Wash.2d at 272, 267 P.3d 998 (quoting McDonald, 119 Wash.2d at 731, 837 P.2d 1000).
12 STEVEN PLITT, DANIEL MALDONADO & JOSHUA D. ROGERS, COUCH ON INSURANCE 3D § 171:45, at 171-46 (2006) (footnote omitted).
12 PLITT, ET AL, supra, § 171:53, at 171-54 to -55 (footnote omitted); see also 5B MATTHEW KING, WASHINGTON INSURANCE LAW AND LITIGATION § 4:1, at 29-30 (2013-14).
¶ 16 The relevant PIP policy language here provides:
(Formatting omitted.)
¶ 17 Progressive agreed to pay income continuation benefits if Ainsworth lost income from work as a result of a bodily injury caused by an automobile accident. The burden rests on Ainsworth to demonstrate coverage under the policy language quoted above — that he lost Contour and Pagliacci wages, that all wage loss resulted from bodily injuries caused by the automobile accident, and that he was not reasonably able to perform the duties of his usual occupation.
¶ 18 The following material facts are undisputed. Ainsworth submitted a completed pre-printed application form for PIP wage loss benefits to Progressive indicating his current employers as Contour and Pagliacci. He answered, "yes" in response to the question, "Did you lose wages or salary as a result of your injury?" (Formatting omitted.) He also reported his "disability from work began" on July 14, 2010, the accident date. (Formatting omitted.) He signed the application and authorization to release medical information to Progressive. Six days after the accident, Becerra mailed letters to
¶ 19 Based on the wage loss information provided by Contour, Becerra prepared a PIP wage calculation sheet for Ainsworth's Contour wage loss claim but prepared no calculations for his Pagliacci wage loss claim. The calculation worksheet shows Becerra's wage loss calculations for Contour for the period of July 28, 2010, through October 14, 2010. For this period, Progressive does not dispute that Ainsworth's treating physician, Dr. Smith, declined to release him to work due to his accident-related disability.
¶ 20 Progressive periodically obtained medical disability information from Dr. Smith to determine eligibility for wage loss benefits. Dr. Smith's April 13, 2012 declaration testimony, submitted in support of Ainsworth's motion for partial summary judgment, stated:
Ainsworth testified during his deposition, quoted below, that pizza delivery was "not a light duty job." He stated the work was fast-paced and physically burdensome. He reiterated that he missed hours after Dr. Smith cleared him for restricted full time work due to "[e]xcruciating pain from [his] injuries from the accident."
¶ 21 Ainsworth also submitted numerous exhibits, including Progressive's electronic claim file for Ainsworth through March 25, 2011, and Dr. Smith's medical disability updates on Ainsworth noted above. In opposition to partial summary judgment, Progressive submitted Ainsworth's deposition testimony, Ainsworth's responses to requests for admission and interrogatories, and a declaration from Becerra's supervisor, Jaimee Manley, with various exhibits attached. It submitted no testimony from Becerra.
¶ 22 Progressive contends that the plain meaning of the income continuation benefit provision found in paragraph 3(b)(i) controls. That provision provides that wage loss benefits end when the insured "is reasonably able to perform the duties of his or her usual occupation."
¶ 23 The undisputed evidence shows Dr. Smith released Ainsworth to work full-time under "significant restrictions." Dr. Smith's written status update to Progressive on September 21, 2010, indicated those restrictions limited Ainsworth from "lifting no more than 50 pounds. Rarely more than 25 pounds. He will need more frequent rest breaks. Ten minutes per hour." On October 15, 2010, Dr. Smith restricted Ainsworth to no frequent lifting of 25 pound items and 10 minute rest breaks every hour. As of April 13, 2012, Dr. Smith had not yet cleared Ainsworth "to resume working without restrictions." As quoted below, Dr. Smith's undisputed declaration testimony concluded that so long as Ainsworth's job duties involve frequent lifting of 25 pound items, he "is not reasonably able to perform the duties of his job...."
¶ 24 Ainsworth's testimony shows that the "duties of his usual occupation" at Pagliacci and Contour, require him to routinely lift 25 pounds or more. His November 22, 2011 deposition taken by Progressive establishes his job duties for both employers routinely require him to lift items over 25 pounds. Progressive's attorney questioned Ainsworth about the medical restriction's effect on his usual job duties at Contour and Pagliacci.
¶ 25 Viewing the evidence in a light most favorable to Progressive, the record evidence shows Ainsworth was not reasonably able to perform his usual work duties at Pagliacci due to the significant weight restrictions imposed by Dr. Smith.
¶ 26 Our review of the record shows, and Progressive does not dispute, that it paid no wage loss benefits related to Ainsworth's Pagliacci
¶ 27 Progressive's response to Ainsworth's partial summary judgment motion consists almost entirely of conclusory and argumentative assertions and evidence quoted out of context. For example, Progressive claimed, based on the Manley declaration, that it "accepted Ainsworth's PIP wage loss claim and began making payments according to the specific terms and conditions of the policy under Washington law." Br. of Appellant at 5. It argues, "Progressive continued to make these payments throughout Ainsworth's convalescence, until October 15, 2010, when he was cleared by his doctor to return to work full-time." Br. of Appellant at 5. While this testimony may address Progressive's discussion about the Contour claim, it avoids any discussion about the Pagliacci claim, for which it paid no benefits for any period. The testimony further states that Ainsworth amended his complaint "to include an additional claim for wage loss at Pagliacci." As further example, Progressive argued "Ainsworth deliberately chose treatment appointments knowing that they would occur during his working hours." Br. of Appellant at 3. Progressive failed to cite any record evidence to support this assertion. The clear implication of this unsupported argument is to suggest an improper motive for Ainsworth's timing of medical appointments during working hours. We address this assertion below.
¶ 28 Progressive relies on Tyrrell v. Farmers Ins. Co. of Wash., 140 Wn.2d 129, 994 P.2d 833 (2000), and Foote v. Viking Ins. Co. of Wisconsin, 57 Wn.App. 831, 790 P.2d 659 (1990), to argue, "In the State of Washington, PIP provisions have been narrowly construed." Br. of Appellant at 14. Nothing in either of these cases supports this argument.
¶ 29 In sum, Progressive submitted no evidence that raises a genuine issue of material fact on the Pagliacci wage loss claim. None of Progressive's partial summary judgment submissions address why it never paid Ainsworth for his undisputed Pagliacci wage loss for the period from July 28, 2010, through October 15, 2010, even though it paid his Contour wage loss for this period. Progressive does not dispute that Dr. Smith confirmed that Ainsworth's disability for this period prevented his release to work. It submitted no evidence to rebut or raise questions about any of Dr. Smith's opinions or conclusions.
¶ 30 In addition, Progressive's partial summary judgment submissions failed to raise any genuine material issues of fact on the question of whether Ainsworth was "reasonably
¶ 31 Progressive argues that "PIP benefits are not intended for attending appointments." Br. of Appellant at 16 (formatting omitted). It cites to Patton v. Commissioner of Social Security, No. 10-13314, 2011 WL 4577250 (E.D.Mich. Sept. 30, 2011) (unpublished), and In re Gagnon, 147 N.H. 366, 787 A.2d 874 (2001). Patton and Gagnon are inapposite. Patton involved an administrative Social Security disability hearing and Gagnon involved a workers' compensation board appeal. Neither case pertains to automobile insurance PIP wage loss benefits. Progressive's assertion frustrates the very purpose of PIP benefits discussed above — to provide vehicle accident victims quick and adequate compensation for economic losses regardless of fault. Wage loss compensation is one of the basic economic losses covered by PIP insurance policies. As noted above, wage loss compensation reimburses the injured claimant for wages lost which he would have received had he not been injured. It "provides protection from economic hardship caused by the loss of a wage earner's income."
¶ 32 As quoted above, Ainsworth submitted evidence that he missed time from work for reasonably necessary medical appointments to treat his bodily injuries sustained in the automobile accident. Ainsworth submitted his pay stubs to verify the time loss. Dr. Smith testified by declaration that he prescribed massage and physical therapy to treat Ainsworth's bodily injuries. He also referred Ainsworth for mental health counseling for severe depression suffered as a result of the accident and injuries. He also referred Ainsworth for treatment with a physiatrist (rehabilitation physician). Progressive does not dispute that these medical treatments were reasonable, necessary, and related to the bodily injuries Ainsworth sustained in the accident. It is undisputed that Ainsworth would not have lost time from work to attend these medical appointments had it not been for the accident.
¶ 33 Progressive cites to no policy limitation, exclusion, or provision that precludes compensation for wages lost while attending reasonable and necessary medical appointments to treat accident-related bodily injury. The insuring agreement plainly covers wage loss benefits for "losses or expenses incurred because of bodily injury...."; see Foster v. Aetna Cas. & Sur. Co., 240 N.J.Super. 122, 572 A.2d 680 (1990) (plaintiff was entitled to reimbursement for gasoline expense, parking fees, tolls, and lost wages incurred in traveling to medical facility 35 miles from plaintiff's home where travel was reasonable and necessary because no closer facility was available).
¶ 34 We are unpersuaded by Progressive's unsupported assertion that time loss from work to attend reasonably necessary medical appointments is not compensable under PIP benefits. Because Ainsworth lost wages he would have received had it not been for the accident, in order to obtain reasonably necessary medical treatment, he is entitled to wage loss compensation under the plain reading of the policy.
¶ 35 Progressive claims that Ainsworth failed to mitigate his damages by setting appointments during work hours.
¶ 36 Ainsworth submitted evidence that he missed time from work at Contour due to the following medical appointments:
Progressive raised no genuine material fact issues that the above appointment schedule was unreasonable under the circumstances. Progressive assumes without citation to authority that the duty to mitigate is satisfied only if an injured claimant schedules medical appointments on weekends or outside of normal business hours. Progressive also suggests this duty requires an injured claimant to seek out medical care providers who see patients on weekends and outside of normal business hours. The burden rests on Progressive to show that the timing of medical appointments with Ainsworth's health care providers was unreasonable. Progressive's mere submission of general appointment times for various healthcare providers falls short of meeting its burden to show Ainsworth unreasonably failed to mitigate his damages.
¶ 37 We conclude that Progressive raises no genuine material issues of fact that Ainsworth unreasonably failed to mitigate Contour damages related to his medical appointments.
¶ 38 Progressive challenges the trial court's IFCA award premised on two grounds.
¶ 39 Under IFCA, if the trial court finds that an insurer "acted unreasonably in denying a claim for coverage or payment of benefits," RCW 48.30.015(2), or that it violated one of the regulations enumerated in RCW 48.30.015(5),
¶ 40 Here, whether cast as an unreasonable denial of a claim for coverage or payment of benefits, the undisputed record discussed above establishes IFCA violations premised on both acts — an unreasonable denial of wage loss benefit coverage and unreasonable denial of wage loss payments — involving both employers.
¶ 41 We are also unpersuaded by Progressive's claim that "payment of benefits for Ainsworth's loss was based on a reasonable interpretation of the policy ..." Br. of Appellant at 22. As discussed above, Progressive's interpretation of the policy ignored the plain text of the income continuation benefit clause. As noted above, Progressive acknowledged that the relevant income continuation clause is plain and unambiguous.
¶ 42 Progressive next challenges the trial court's IFCA award of "actual damages." The trial court doubled "the amount of actual damages under RCW 48.30.015(2) to $10,916.36." Progressive argues the trial court's wage loss benefit award does not constitute "actual damages" subject to IFCA's treble damages provision. It argues the trial court relied on "an extra-contractual theory of law." Br. of Appellant at 24. It also argues, "The penalty for IFCA violations, like with bad faith or CPA claims, should only apply to the harm caused above and beyond the denial of benefits." Br. of Appellant at 28. It relies on bad faith and CPA case authority to make its point.
¶ 43 Ainsworth is correct that in Progressive's response to the partial summary judgment motion, "Progressive's argument that the trial court improperly doubled Ainsworth's damages is raised for the first time on appeal." Resp't's Br. at 32. Progressive does not address or rebut this assertion. Our review of Progressive's partial summary judgment response indicates it made the present arguments for the first time on appeal. It is well settled that "[w]e will not review an issue, theory, argument, or claim of error not presented at the trial court level." Lindblad v. Boeing Co., 108 Wn.App. 198, 207, 31 P.3d 1 (2001). A party must inform the court of the rules of law it wishes the court to apply and afford the trial court an opportunity to correct any error. Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983). Failure to do so precludes raising the error on appeal. Smith, 100 Wash.2d at 37, 666 P.2d 351. "While an appellate court retains the discretion to consider an issue raised for the first time on appeal, such discretion is rarely exercised." Karlberg v. Otten, 167 Wn.App. 522, 531, 280 P.3d 1123 (2012). Progressive failed to preserve the alleged error it now asserts on appeal. And it fails to argue why an exception to this rule applies in this case.
¶ 44 The trial court awarded attorney fees and costs to Ainsworth under IFCA (RCW 48.30.015(3)) and Olympic Steamship Co. v. Centennial Insurance Co., 117 Wn.2d 37, 811 P.2d 673 (1991). CP 438. We affirm the award.
¶ 45 Under Olympic Steamship, "an award of fees is required in any legal action where the insurer compels the insured to assume the burden of legal action, to obtain the full benefit of his insurance contract, regardless of whether the insurer's duty to defend is at issue." Olympic S.S., 117 Wash.2d at 53, 811 P.2d 673. The rule does not apply where the parties solely dispute "the value of the claim presented under the policy." Dayton v. Farmers Ins. Grp., 124 Wn.2d 277, 280, 876 P.2d 896 (1994). In sum, the rule applies in coverage disputes but not in valuation disputes. Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 147, 930 P.2d 288 (1997).
¶ 46 To avoid the Olympic Steamship rule, Progressive attempts to characterize this case as a valuation dispute, as opposed to a coverage dispute. We are not persuaded by this claim. "Coverage disputes include both cases in which the issue of any coverage is disputed and cases in which `the extent of the benefit provided by an insurance contract' is at issue." Leingang, 131 Wash.2d at 147, 930 P.2d 288 (quoting McGreevy v. Oregon Mut. Ins. Co., 128 Wn.2d 26, 33, 904 P.2d 731 (1995)). Here, Progressive denied Ainsworth's claim for lost Contour wages on the basis that payments terminated under the plain policy language. It never challenged Ainsworth's valuation of the claim. Further, it never adjusted Ainsworth's Pagliacci claim for any time period. Because this case clearly involves a coverage dispute for purposes of an award of fees and costs under Olympic Steamship, we affirm the trial court's award of fees and costs.
¶ 47 In sum, Progressive raised no genuine material issues of fact related to whether Ainsworth was entitled to wage loss compensation under the policy's insuring agreement and whether Progressive violated IFCA when it unreasonably denied a claim for coverage and unreasonably denied payment of benefits. Progressive also failed to preserve for appeal its challenge to the actual damages awarded under IFCA. We affirm the trial court's order on partial summary judgment.
WE CONCUR: VERELLEN and SCHINDLER, JJ.
"(5) A violation of any of the following is a violation for the purposes of subsections (2) and (3) of this section:
"(a) WAC 284-30-330, captioned `specific unfair claims settlement practices defined';
"(b) WAC 284-30-350, captioned `misrepresentation of policy provisions';
"(c) WAC 284-30-360, captioned `failure to acknowledge pertinent communications';
"(d) WAC 284-30-370, captioned `standards for prompt investigation of claims';
"(e) WAC 284-30-380, captioned `standards for prompt, fair and equitable settlements applicable to all insurers'; or
"(f) An unfair claims settlement practice rule adopted under RCW 48.30.010 by the insurance commissioner intending to implement this section. The rule must be codified in chapter 284-30 of the Washington Administrative Code." RCW 48.30.015. Ainsworth alleged various violations under the insurance commissioner regulations noted above that support an IFCA violation. We also note that Progressive argues for the first time in its reply brief that its claim investigation was reasonable. Reply Br. of Appellant at 17-18. The argument is untimely. RAP 10.3(c); Hudson, 124 Wash.2d at 120, 874 P.2d 160; Sacco, 114 Wash.2d at 5, 784 P.2d 1266. Even assuming Progressive timely raised the issue, the record evidence raises no material issues of fact.
