Full Opinion

FILED NOVEMBER 10, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE MESERET SHIFERAW, ) No. 39643-6-III ) Respondent, ) ) v. ) ) PUBLISHED OPINION NATIONWIDE AFFIINITY ) INSURANCE COMPANY OF ) AMERICA, an Ohio insurance company, ) ) Appellant. ) MURPHY, J. — Meseret Shiferaw brought claims against her insurer, Nationwide Affinity Insurance Company of America (Nationwide), for (1) violation of the Insurance Fair Conduct Act (IFCA), RCW 48.30.010-.015, (2) a breach of the duty of good faith, (3) violation of the Consumer Protection Act (CPA), chapter 19.86 RCW, and (4) negligence. The jury awarded substantial compensatory damages on the IFCA, bad faith, and negligence claims, and $47 million in punitive damages under Ohio law. The trial court enhanced the IFCA award and applied a two-times multiplier to its award of attorney fees and costs. Nationwide appeals. Shiferaw cross-appeals the denial of injunctive relief under the CPA. No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. We affirm the awards and judgments for bad faith, negligence, and the CPA violation. We reverse the IFCA award and judgment, and remand with instructions to dismiss that claim with prejudice. We reverse the punitive damages award and judgment. We affirm the denial of a new trial. We reverse the attorney fee and cost awards and related judgments, and remand for a complete redetermination of fees and costs, including whether any multiplier remains appropriate in light of the reduced judgment. The CR 59(j) ruling presents no reversible error. We decline Nationwide’s request to reassign this case to a different trial court judge on remand. On cross-appeal, we reverse the denial of injunctive relief and remand for reconsideration under the correct legal standard. BACKGROUND On August 16, 2017, while driving in Alberta, Canada, Meseret Shiferaw entered an intersection after failing to stop at a stop sign. Her vehicle was struck by a semi-truck driven by Paul Coyle. Shiferaw and her husband, Solomon Agere, were seriously injured. Their three children died as a result of the collision. Coyle was also injured. Shiferaw held a Washington-issued personal auto policy with $50,000 per person/$100,000 per occurrence bodily injury liability limits. The policy’s out-of-state coverage clause increased those limits to the province of Alberta’s $200,000 minimum 2 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. requirement for third-party liability coverage. 1 Nationwide timely paid collision, UIM (underinsured motorist), and PIP (personal injury protection) benefits to Shiferaw. Nationwide recognized early on that Shiferaw was solely at fault for the collision, that she was underinsured, and that the multiple claims in this major loss would exceed the available policy limits. Agere retained counsel and sought compensation for himself and for the estates of his three children. Beginning on October 6, 2017, Agere’s counsel started making formal demands to Nationwide for payment of full liability limits. Coyle’s claim remained open under Alberta’s two-year limitation period; he never made a formal settlement demand to Shiferaw or Nationwide. 2 Nationwide’s adjusters took the position that a global resolution of all claims would best protect Shiferaw from exposure to claims in excess of available liability insurance coverage. They declined to settle the intrafamily claims or toll the Washington statute of limitations period while Coyle’s claim remained unknown and unresolved, reasoning that payment of insurance proceeds to a single claimant would 1 It was not always clear to the parties whether the policy limits should be calculated in Canadian or United States currency. Nationwide’s initial position was that CAN$200,000 was the policy limit and Agere’s presuit settlement demands were consistent with Nationwide’s position. Ultimately, it was determined that US$200,000 was the aggregate limit. 2 Under the province of Alberta’s Limitations Act, RSA (Revised Statutes of Alberta) 2000, chapter L-12, the general rule is a claim for personal injury must be brought within two years of the occurrence resulting in an injury. 3 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. terminate Nationwide’s defense and indemnity obligations and leave Shiferaw exposed without an insurer-provided defense. In early June 2019, Agere’s counsel again made a settlement demand for full policy limits. Because of uncertainty as to whether the Canadian two-year statute of limitations might apply to a lawsuit brought by Agere in Washington, counsel stated they could no longer wait for resolution of any claim asserted by Coyle. Nationwide rejected Agere’s settlement demand and advised Shiferaw, in a letter dated June 27, 2019, that a lawsuit may soon be filed against her. On August 12, 2019, Agere’s counsel sent a final presuit settlement demand letter to Nationwide requesting policy limits that included the following: The crux of all this is that Nationwide will be putting its insureds in the very unfair position of forcing a husband to sue his wife for his own injuries and the deaths of their children when there is neither a liability nor damages dispute. I hope Nationwide does not force this course of action, but the only options to avoid it are (1) immediate agreement to pay the policy limits in settlement of the claims for the childrens’ estates and for [Agere] (which I have the authority to accept) or (2) Nationwide’s written confirmation that it does not object to its insured signing a tolling agreement extending the limitations period for four additional months. Ex. P-21 at 1-2; Clerk’s Papers (CP) at 555-56. The next day, Nationwide e-mailed Agere’s counsel to memorialize a phone conversation where Nationwide (1) confirmed it would not be able to extend the statute 4 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. of limitations, (2) noted all claims should be settled at the same time to protect their insured from excess liability, and (3) requested a copy of Agere’s filed complaint. Nationwide’s concern was that tolling for Agere could then require waiving of the statute of limitations for Coyle. Under Canadian law, if Nationwide paid out the first limit to Coyle and there is a second claimant, Nationwide would have to offer the same limit to the second claimant, thus $200,000 to Coyle and $200,000 to Agere. On August 15, 2019, Agere, individually and in his capacity as personal representative of the estates of the three children, initiated an action in Spokane County Superior Court against Shiferaw. The next day, Agere amended the complaint to add Nationwide as a defendant. Unbeknownst to Nationwide, on May 16, 2019, Coyle had filed a lawsuit against Shiferaw in the province of Alberta, Canada. Prior to filing the Washington lawsuit, Shiferaw retained George Ahrend as personal counsel. Once Agere had initiated his lawsuit, Nationwide assigned defense counsel to Shiferaw for both the Washington and Canadian actions and internally transferred the file to a legal examiner with experience in complex claims. Shiferaw’s assigned defense counsel filed a notice of appearance on August 27, 2019. Ahrend formerly appeared in the lawsuit for Shiferaw on August 30. Shiferaw’s assigned defense counsel filed a notice of withdrawal and substitution on September 10 for a different assigned counsel to take over, specifying in the notice that George Ahrend remained as 5 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. private counsel for Shiferaw. Counsel for Nationwide in its capacity as a defendant appeared in the action on September 11. On September 25, 2019, three documents were filed in the following order: (1) the substituted counsel assigned by Nationwide to represent Shiferaw filed a notice of withdrawal of counsel, noting the withdrawal was effective immediately and again noting Ahrend remained as private counsel for Shiferaw; 3 (2) David Beninger filed a notice of association of counsel with Ahrend on behalf of Shiferaw; and (3) on the pleading paper of the withdrawing law firm, Shiferaw filed an answer and affirmative defenses to Agere’s amended complaint, with cross claims asserted against Nationwide. Although the answer was represented to be filed by and through the attorneys who were withdrawing, as well as Ahrend, only Ahrend signed the pleading and the signature block for the withdrawing attorneys was left blank. 4 A third law firm assigned by Nationwide to defend Shiferaw later associated with Ahrend and Beninger after the second firm was granted leave to withdraw. 3 This notice did not comply with the requirement in CR 71(c)(1) that 10 days’ notice be given to allow for any objections to withdrawal. 4 On October 2, 2019, the substituted law firm and counsel as assigned by Nationwide filed a notice of intent to withdraw that complied with the notice requirements of CR 71, also noting Ahrend and Beninger remained private counsel for Shiferaw. Shiferaw through Ahrend objected to the withdrawal, prompting a motion for withdrawal with corresponding briefing. After a hearing on the motion, leave was granted on November 1, 2019, for the second assigned defense counsel to withdraw. 6 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. Shiferaw asserted the following against Nationwide in her September 25, 2019, cross claims: 1. Defendant Nationwide failed to properly negotiate, settle and protect Meseret Shiferaw's interests in one or more of the ways admitted herein, including but not limited to failing to negotiate in good faith, affirmatively explore and relay all terms of settlement or negotiation(s), settle within limits, toll the statute of limitations to avoid suit, advise, assist and communicate, timely tender, offer or interplead limits, timely and properly investigate, evaluate, communicate, settle, defend, pay, obtain informed consent, and/or respond in good faith and in compliance with the contract, statutory and regulatory requirements resulting in a public lawsuit and personal exposure to Meseret Shiferaw in excess of the liability limits. These actions were not in the best interests of Nationwide's insured Meseret Shiferaw and have caused her injury, harm, expense, prejudice and/or damages. 2. As a result, Plaintiff Meseret Shiferaw is forced to defend herself and asserts crossclaims against Nationwide arising in tort, contract, under the common law, statutes, regulations and in equity. These crossclaims include but are not limited to for breach of contract, bad faith, insurance negligence, violation of the Consumer Protection Act (“CPA,” RCW 19.86 et seq.,), estoppel, for joint and several liability, for fault within the meaning of RCW 4.22 et seq., including negligence, gross negligence, reckless, unfair or deceptive conduct, and for declaratory other relief including that sought by Agere against Nationwide. CP at 42-43. Just over a month after Shiferaw asserted her cross claims against Nationwide, it moved for purposes of discovery and trial to bifurcate the personal injury claims between Agere and Shiferaw from the insurance claims asserted by both Agere and Shiferaw against Nationwide. Nationwide also filed a motion seeking leave to deposit the $200,000 7 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. policy proceeds with the court pursuant to CR 67, stating it could not determine “how to allocate policy proceeds amongst the five claimants.” CP at 101. The trial court denied both motions, without prejudice to either party to renew the motions at a later date. Discovery disputes ensued; the trial court compelled production of Nationwide’s claims file. In late November 2019, Agere moved for partial judgment on the pleadings establishing Shiferaw’s negligence and causation. Nationwide did not file a response to the motion. Agere and Shiferaw agreed that damages exceeded $200,000. The trial court granted the motion. Agere then moved for entry of partial judgment; Shiferaw moved to compel payment of liability proceeds. Over Nationwide’s objection, the court ordered Nationwide to pay the proceeds to Agere within seven days. Nationwide unsuccessfully sought discretionary review of that decision in this court, arguing that exhausting limits without a release from Agere left Shiferaw exposed with potentially no insurer-provided defense. On March 27, 2020, Agere and Shiferaw agreed to submit the remaining claims between them to binding arbitration. Notice of the agreement was filed with the court and served on Nationwide’s counsel just over two months before the arbitration was scheduled to take place. Agere and Shiferaw further stipulated that Washington law applied to recoverable damages, pre- and postjudgment interest, costs, and attorney fees. 8 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. Although Nationwide as a party claimed it was kept in the dark as to these developments, it was informed of the arbitration, invited to participate, received briefing submitted to the arbitrator by Agere and Shiferaw, and Nationwide’s counsel telephonically attended the arbitration (choosing only to listen to and monitor the proceedings). Arbitration occurred on June 3, 2020. The arbitrator awarded $17,123,927.71 ($16,605,370.41 to Agere and the children’s estates on the wrongful death and survival action claims, $517,761.75 to Agere on his personal injury claims, and $795.55 to Agere for costs and statutory attorney fees), and then reduced the award by $200,000.00, the amount earlier paid by Nationwide. Agere moved to confirm the arbitration award, arguing that with Shiferaw’s bad faith allegation the trial court could rule no policy limit applied and judgment could be executed against Nationwide. Nationwide paid the full award on August 13, 2020; Agere released all claims that he had asserted against Shiferaw and Nationwide. The court entered an order granting Agere’s CR 41(a)(1)(B) motion for voluntary dismissal of his claims with prejudice on September 18, 2020. On March 19, 2020, less than three months before the arbitration hearing and with leave of court, Agere filed an amended complaint. The claims against Shiferaw were the same, but Agere added the following additional claims against Nationwide: (1) a failure to act in good faith and violations of IFCA and the CPA with regard to the PIP and UIM 9 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. claims, and (2) unjust enrichment. 5 On June 8, 2020, one day after the $17,123,927.71 arbitration award to Agere, Shiferaw sent Nationwide an IFCA notice and demand for benefits. Nationwide responded to the notice on July 1. On July 6, Shiferaw answered the second amended complaint and added the following to her cross claims against Nationwide: 3. Cross Claim Plaintiff Shiferaw provided an opportunity to and served notice upon defendant Nationwide that it had the additional and full statutory deadline of 20 days to redress the coverage and claims mishandling violations and unreasonable denials of coverage or payment of benefits that has harmed, injured and/or damaged Shiferaw[.] Nationwide chose not to resolve the injury and damage from its unreasonable conduct and the basis for the claims under the Insurance Fair Conduct Act (IFCA), RCW 48.30. et. seq. As a result, Cross Claim Plaintiff now asserts relief under the IFCA against defendant Nationwide for payment of the arbitration award with interest, and all other actual, compensatory, exemplary, economic, non-economic, general, special, and other damage and harm and relief as IFCA permits. CP at 397. Separate answers by Nationwide to the second amended complaint and Shiferaw’s cross claims were filed on July 24. Intensive motion practice ensued. On July 24, 2020, Nationwide moved for a determination that Washington law applied to Shiferaw’s negligence and common law bad faith claims to preclude punitive damages under Ohio law. In briefing, Nationwide conceded that an actual conflict of law existed between Washington and Ohio on the 5 Agere’s claim against Nationwide for declaratory judgment remained unchanged. 10 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. issue of punitive damages, but argued Washington law should apply because it had the most significant contacts under Restatement (Second) of Conflict of Laws § 145 (A.L.I. 1971). Shiferaw argued Ohio law governed under dépeçage 6 principles because Nationwide is an Ohio corporation and its claims decisions occurred in Ohio. That same day, Shiferaw moved for partial summary judgment asking that Nationwide be held liable for bad faith, negligence, breach of contract, and the CPA/IFCA violations. On August 12, 2020, Shiferaw moved for an order compelling satisfaction of all judgments and awards against her through confirmation of the arbitration award and satisfaction of judgments. She sought protection from awards and judgments and wanted to mitigate her damages. Shiferaw contended that she had “been unable to obtain Nationwide’s cooperation or assistance,” and Nationwide was keeping her and counsel “in the dark while [at the same time] asserting a defense that Shiferaw has not done enough to mitigate her damages.” CP at 1157. On August 28, 2020, Nationwide filed a second motion for partial summary judgment seeking an order (1) that any bad faith damages could not include sums already paid on the arbitration award, interest, and judgment on the pleadings, and (2) dismissal 6 “Dépeçage” is “[a] court’s application of different state laws to different issues in a legal dispute; choice of law on an issue-by-issue basis.” BLACK’S LAW DICTIONARY 551 (12th ed. 2024). 11 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. of the IFCA claim. Shiferaw moved for partial summary judgment on Nationwide’s affirmative defenses. The trial court issued a November 20, 2020, letter ruling on the various motions, which is summarized below: ● Conflict of law question: Ohio law (allowing punitive damages) would apply here if Shiferaw prevails on her bad faith claim because the place of the injury-causing conduct was Ohio where Nationwide made its claims-handling decisions. This furthers Ohio’s interest in deterring and punishing certain conduct and is not inconsistent with Washington’s policy against punitive damages or its disinterest in protecting foreign companies engaging in such conduct. ● Enforcement of settlement agreement: The July 2020 agreement between Nationwide and Agere was not binding on Shiferaw. Although Agere released all his claims against Shiferaw, and Nationwide transferred funds of $17,215,517.18 to Agere’s counsel’s trust account in consideration for that release, Shiferaw herself had not accepted its terms before the money was disbursed. Absent her assent, the agreement between Nationwide and Agere for payment and release was not enforceable as to her. ● Nationwide’s affirmative defenses: No reservation of rights was required because Nationwide had acknowledged its duty to defend and the defenses were asserted solely against the bad faith claim (not coverage). Fraud/collusion need not be pleaded with 12 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. CR 9(b) specificity when raised as an affirmative defense (not for affirmative relief) and remained for a jury determination. Failure to mitigate is not a defense when the insurer has acted in bad faith. Failure to cooperate requires proof of actual prejudice and presented material fact issues for the jury. ● Shiferaw’s partial summary judgment motion on Nationwide’s liability for bad faith, negligence, breach of contract, and the CPA/IFCA violations: A single violation of the unfair claims settlement practices regulations, chapter 284-30 WAC, can constitute a per se unfair/deceptive act under the CPA and support bad faith and breach. Because reasonable minds could differ on the facts presented in support of and in opposition to these claims, questions of fact remain for a jury determination of these issues. ● Shiferaw’s IFCA claim against Nationwide: This claim was properly brought, as IFCA does not require an outright denial of benefits and can rest on conduct resulting in denial of benefits promised by the policy. Corresponding orders on these rulings were entered December 14, 2020. Nationwide moved to disqualify Beninger as trial counsel on the grounds that he would be a necessary witness on its collusion affirmative defense; the motion was denied (and a later renewed motion was also denied). The trial court also determined that 13 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. Shiferaw was entitled to Olympic Steamship 7 attorney fees as the prevailing party on her motion to compel Nationwide to pay liability policy proceeds to Agere. Nationwide moved to (1) bifurcate the liability/compensatory portion of trial from a determination on punitive damages and (2) compel election by Shiferaw between the remedies of punitive damages under Ohio law or treble damages under IFCA and the CPA. The court granted bifurcation because Ohio treats punitive damages as a substantive matter carrying a right to bifurcation, but denied the motion for election of remedies, holding the bad faith, IFCA, and CPA claims were not repugnant and are mutually exclusive. The trial court determined Shiferaw could seek punitive damages as well as IFCA and CPA damages so long as they were not based on the same conduct, and that Shiferaw must make that election prior to judgment to avoid double recovery. With Agere’s claims against Shiferaw and Nationwide resolved and released, and those causes of action voluntarily dismissed by Agere, the trial court on January 17, 2023, entered an order realigning the remaining parties and changing the case caption with Shiferaw as plaintiff and Nationwide as defendant. 7 Olympic S.S. Co., Inc. v. Centennial Ins. Co., 117 Wn.2d 37, 52-53, 811 P.2d 673 (1991). 14 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. Trial The compensatory phase of trial began on January 23, 2023. Evidence included testimony that Nationwide: never made a presuit offer to Agere to settle his claims against Shiferaw, effectively forcing Agere to sue his wife over the children’s deaths; delayed payment of medical/PIP/funeral/grief benefits; failed for two years to tender or assist in dividing the liability policy limits; should have appointed counsel for Shiferaw far earlier than the onset of litigation; and the adjusters lacked sufficient training/experience and failed to escalate the claim internally or settle when liability was clear. An attorney Nationwide assigned to defend Shiferaw during the Agere litigation, and who actually represented her until that portion of this litigation concluded, testified that Nationwide withheld the claims file from him, which he described as a very unusual practice in the context of his insurance defense litigation practice. During trial, Nationwide’s counsel lodged hundreds of objections and repeatedly accused Shiferaw’s personal attorney, David Beninger, of misconduct. The jury found Nationwide: (1) violated IFCA, (2) breached the duty of good faith, (3) violated the CPA, and (4) was negligent. It awarded Shiferaw $27,136,000 in total compensatory damages broken down as follows: (1) $136,000 in economic damages for the IFCA violation, bad faith, CPA violation, and negligence, and (2) $27,000,000 in 15 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. noneconomic damages ($20,000,000 for the IFCA violation, $5,000,000 for bad faith, and $2,000,000 for negligence). In phase two of the bifurcated trial, the jury found that Shiferaw was entitled to an award of punitive damages for common law bad faith under Ohio law. It awarded $47,000,000 in punitive damages, and also found that Nationwide was liable for the reasonable attorney fees of counsel retained by Shiferaw to prosecute the claim. On March 2, 2023, the trial court entered a judgment on the $27,136,000 in compensatory damages awarded by the jury. The court noted this was not a final judgment that would commence the 30-day deadline in which to appeal. On March 15, 2023, the trial court entered a supplemental judgment for $47,000,000 in punitive damages, $20,136,000 in enhancement (double rather than treble) damages for the IFCA violation, and $8,323,910 in attorney fees and costs. The total judgment against Nationwide now stood at $102,595,910. Posttrial motions Nationwide filed six posttrial motions: (1) renewed motion under CR 50 for judgment as a matter of law, (2) new trial based on prejudice and misconduct from opposing counsel, (3) new trial based on misconduct and errors regarding attorney witnesses, (4) new trial or remittitur of compensatory jury verdict, (5) renewed motion for judgment as a matter of law regarding judgment for compensatory damages, and 16 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. (6) renewed motion for judgment as a matter of law on punitive damages. Shiferaw moved to strike all the motions as (1) successive posttrial motions in violation of CR 59(j), (2) violating the page limitations for nondispositive motions under LCR 40, and (3) a misrepresentation of applicable law in violation of CR 11 and RPC 3.3. Shiferaw filed a combined response on the merits of the motions and sought to supplement her judgment for attorney fees and costs for having to respond to the motions. On May 10, 2023, the trial court issued a 17-page ruling and order denying all of Nationwide’s motions (treating each as a motion for new trial or reconsideration). In an order and second supplemental judgment entered on May 17, the court awarded Shiferaw’s counsel an additional $448,465.00 in attorney fees and a total of $185,396.04 in expenses ($181,734.64 through trial and $3,661.40 posttrial). The second supplemental judgment raised the total fee and cost award to $8,957,771.04 and the overall judgment to $103,229,771.04. Shiferaw requested in her cross claim “injunctive relief against Nationwide to enjoin it from violating the insurance statutes, regulations and contract and in committing the unfair and deceptive claims handling violations and misconduct as alleged, and/or to be further alleged.” CP at 44. The parties submitted posttrial briefing on this issue and on May 12, 2023, the trial court heard argument from counsel and took the matter under advisement. On June 23, the court issued an opinion and order denying injunctive relief. 17 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. Appeals Nationwide timely appeals from the judgments entered against it and the court’s ruling/order on Nationwide’s posttrial motions. Shiferaw timely cross-appeals from the trial court’s posttrial opinion/order denying injunctive relief. ANALYSIS Nationwide’s Direct Appeal 1. IFCA claim Nationwide contends the trial court erred in denying its motion for judgment as a matter of law on the IFCA claim. We agree. The purpose of IFCA is to protect insurance policy holders and it was enacted “to provide [those] insureds with another legal resource against their [own] insurer for wrongful denials” of a claim for coverage. Perez-Crisantos v. State Farm Fire & Cas. Co., 187 Wn.2d 669, 679, 389 P.3d 476 (2017). While similar to and sometimes overlapping with bad faith and CPA claims, IFCA claims must be based on either the “unreasonable denial of a claim for coverage or payment of benefits under an insurance policy.” Beasley v. GEICO Gen. Ins. Co., 23 Wn. App. 2d 641, 662, 667-68, 517 P.3d 500 (2022), review denied, 200 Wn.2d 1028, 523 P.3d 1188 (2023). IFCA creates a private right of action for a “first party claimant” who is “unreasonably denied a claim for coverage or payment of benefits by an insurer.” 18 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. RCW 48.30.015(1). “‘First party claimant’ means an individual, corporation, association, partnership, or other legal entity asserting a right to payment as a covered person under an insurance policy or insurance contract arising out of the occurrence of the contingency or loss covered by such policy or contract.” RCW 48.30.015(4); WAC 284-30-320(7). “IFCA clearly vests a cause of action with first party claimants,” but “nothing in the language of IFCA gives third party claimants the right to sue.” Trinity Universal Ins. Co. of Kansas v. Ohio Cas. Ins. Co., 176 Wn. App. 185, 201, 312 P.3d 976 (2013). “‘Third- party claimant’ means any individual, corporation, association, partnership or other legal entity asserting a claim against any individual, corporation, association, partnership or other legal entity insured under an insurance policy or insurance contract of the insurer.” WAC 284-30-320(17). First-party coverage refers to insurance benefits that are paid directly to an insured by an insurer for a covered loss. Mut. of Enumclaw Ins. Co. v. Dan Paulson Constr., Inc., 161 Wn.2d 903, 914 n.8, 169 P.3d 1 (2007). Third-party coverage refers to insurance benefits where the insurer is obligated to defend and indemnify the insured against liability claims made by another party. Id. The same automobile insurance policy can provide both types of coverage: first-party coverage available to the insured for direct benefits such as UIM and PIP coverage, and third-party coverage for claims arising out of the liability of the insured to others. 19 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. On June 8, 2020, one day after the arbitrator made the $17,123,927.71 award to Agere on his third-party liability claims, Shiferaw sent her IFCA notice to Nationwide. Shiferaw alleged that the IFCA notice was being made “due to Nationwide’s claims mishandling and its failure to properly and timely investigate, evaluate, explain, communicate, respond, negotiate, settle, protect, defend and/or pay benefits arising from the collision in August 2017.” CP at 1319. Shiferaw demanded that Nationwide “pay all the benefits owed and to resolve and secure protection for and from all claims.” CP at 1320. At this point, there were no outstanding claims by Shiferaw for collision coverage or UIM/PIP benefits. Thus, she was not asserting a right to payments for first- party coverage benefits in this notice. However, she was still a first-party claimant under IFCA because she was asserting her right to benefits under the third-party liability policy: the right to defense and indemnification for claims asserted by others. When an insured proves that their insurer violated IFCA, they may recover “actual damages sustained, together with the costs of the action, including reasonable attorneys’ fees and litigation costs.” RCW 48.30.015(1). This court has previously held that “noneconomic damages are ‘actual damages’ under RCW 48.30.015.” Beasley, 23 Wn. App. 2d at 653-54. In addition, upon a finding that an insurer has unreasonably denied a claim for coverage or payment of benefits, the trial court may award up to three times the actual damages. RCW 48.30.015(2). In determining whether treble damages are 20 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. appropriate, the court can consider whether the insurer violated any of the certain regulations/rules specified in RCW 48.30.015(5) while processing the claim, but a regulatory violation by itself does not create an independent cause of action under IFCA. Perez-Crisantos, 187 Wn.2d at 684. When an insured has already recovered bad faith damages that encompass the same harm as the IFCA damages, the insured is not entitled to double recovery. Beasley, 23 Wn. App. 2d at 670. This court in Beasley held that because the bad faith damages the jury awarded necessarily included IFCA damages, the insured could not recover any amount above the bad faith award in IFCA noneconomic damages. Id. When an insured believes their insurance company has violated IFCA, a prerequisite to any litigation of the claim is notice to the insurer and the insurance commissioner, and an opportunity for the insurer to cure. RCW 48.30.015(8). Under this mandatory safe-harbor provision: an insurer is not liable if, within 20 days after receiving written notice of the basis for the action, it “resolves the basis for the action.” RCW 48.30.015(8). 8 Should the insurer fail to cure within the 20-day period, the insured 8 “Notice may be provided by regular mail, registered mail, or certified mail with return receipt requested. Proof of notice by mail may be made in the same manner as prescribed by court rule or statute for proof of service by mail. The insurer and insurance commissioner are deemed to have received notice three business days after the notice is mailed.” Id. 21 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. may initiate an IFCA cause of action without any further notice. Id. Application In its motion for summary judgment and again on appeal, Nationwide contends that Shiferaw did not have a cause of action under IFCA because she failed to show that Nationwide unreasonably denied a claim for indemnification or unreasonably denied her a defense. With respect to Shiferaw’s indemnification claim, Nationwide points out that it had paid Agere the policy limits several months prior to Shiferaw’s IFCA notice. Shiferaw responds that Nationwide’s delay in paying the policy limits violated IFCA, the amount paid did not include noneconomic damages, and Nationwide paid only under compulsion and conditioned payment on a reservation of rights. We conclude that Shiferaw’s IFCA claim fails as a matter of law for several reasons. First, because Nationwide paid its entire liability policy limits before the statutory notice-and-cure period began, it resolved the basis for any IFCA action. Nationwide tendered the $200,000 policy limit to Agere on February 7, 2020, which was more than four months before Shiferaw sent her June 8 IFCA notice. That payment exhausted the available liability coverage and satisfied Nationwide’s contractual obligations of indemnification under the policy. No further benefits remained owing under the insurance contract. 22 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. Shiferaw argues that Nationwide’s February 7, 2020, payment of the $200,000.00 liability policy limits to Agere did not resolve the basis of her claim under IFCA because the June 8 claim notice included the actual damages of $17,123,927.71 awarded by the arbitrator on June 7. Under RCW 48.30.015(8)(a), a first-party claimant must provide written notice of the “basis for the cause of action to the insurer” 20 days prior to initiating an IFCA cause of action. Because neither “basis” nor “cause of action” is defined anywhere in the statute, we apply the “plain and ordinary meaning” to these words and phrases. Duskin v. Carlson, 136 Wn.2d 550, 559, 965 P.2d 611 (1998). In ordinary usage, “basis” means “an underlying fact or condition; a foundation or starting point.” BLACK’S LAW DICTIONARY 185 (12th ed. 2024). “Cause of action” is a well-established legal term meaning “[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” BLACK’S LAW DICTIONARY 275 (12th ed. 2024). “Basis for the cause of action,” therefore, means the factual and legal grounds that give rise to the IFCA claim. Because the only cause of action created by RCW 48.30.015 is for the unreasonable denial of a claim for coverage or payment of benefits, the phrase “basis for the cause of action” in the statute is the insurer’s specific conduct—the unreasonable denial—that the claimant contends entitles them to relief. 23 No. 39643-6-III Shiferaw v. Nationwide Affinity Ins. Co. of Am. The subsequent $17,123,927.71 arbitration award to Agere represented extracontractual liability beyond policy limits. IFCA is directed at the unreasonable denial or withholding of contractual coverage or benefits owed under a policy of insurance. Allowing an IFCA claim to proceed on the basis of asserted extracontractual damages would render the cure provision meaningless and undermine the statute’s purpose of mandating an attempt at prelitigation resolution of insurance disputes. See RCW 48.30.015(8)(b). Second, the benefits at issue were third-party liability limits paid to Agere. IFCA does not create a cause of action for an insured’s complaint about the timing or manner of payment to a third-party claimant. The threshold requirement of the statute is that a claimant must show either an unreasonable denial of coverage or unreasonable denial of benefits owed under the policy. RCW 48.30.015(1); Perez-Crisantos, 187 Wn.2d at 683. Payment to Agere was not a contractual obligation Nationwide owed