Gerken V. Mutual Of Enumclaw Insurance Co‪.‬

SWEENEY, J. -- Floyd E. Gerken was injured when the vehicle he was driving skidded onto the shoulder of the road and overturned. At the scene of the accident, he told a state trooper he swerved off the road to avoid hitting an unidentified vehicle that veered sharply into his lane. Mutual of Enumclaw Insurance Company (MOE), which insured the vehicle, denied Mr. Gerken underinsured motorist coverage because he had not provided independent corroboration of the accident. Mr. Gerken brought a declaratory judgment action against MOE. On cross motions for summary judgment, the court ruled there was sufficient competent corroborating evidence to satisfy RCW 48.22.030(8)(a). The court granted summary judgment in favor of Mr. Gerken and awarded him attorney fees and costs. MOE appeals contending the evidence presented is not sufficient to corroborate the existence of a phantom vehicle. In a consolidated appeal, MOE contends the court erred in awarding Mr. Gerken fees and costs. We affirm the summary judgment and the award of attorney fees. We reverse the award of litigation costs.