Dewitt Construction, Inc. v. Charter Oak Fire Insurance Company

We reject DeWitts argument that Washington law permits no allocation of settlement if the insurer breaches the duty to defend. First, the Washington Supreme Court, in Kirk v. Mt. Airy Ins. Co., 951 P.2d 1124, 1128 (Wash. 1998), held that when an insurer breaches the duty to defend in bad faith, the insurer is estopped from asserting that alleged claims are outside the scope of coverage. Absent bad faith, the insurer is "liable for the judgment entered provided that the act creating liability is a covered event and provided the amount of the judgment is within the limits of the policy." Id. at 1126 (emphasis added). Because there was no bad faith here, see infra Section III, allocation is appropriate. To conclude otherwise would be to afford the same remedy in cases where the insurer has breached the duty to defend in good faith as in cases where such breach was in bad faith. Second, DeWitts partial reliance on Nautilus v. Transamerica Title Ins. Co., 534 P.2d 1388, 1393 (Wash. App. 1975), is misplaced because there the court rejected allocation where there was one claim and there were several legal theories of recovery. Here we have several claims; coverage of one claim does not automatically bring the others into the scope of the policy absent bad faith.