[Nos. 57068-4-I; 56625-3-I. Division One. April 23, 2007.]
MICHAEL STEPHENS, on Behalf of Himself and All Others Similarly Situated, Respondent, v. OMNI INSURANCE COMPANY ET AL., Petitioners.
RAJVIR PANAG, on Behalf of Herself and All Others Similarly Situated, Respondent, v. FARMERS INSURANCE COMPANY OF WASHINGTON ET AL., Appellants.
[1] Consumer Protection Action for Damages Elements. The elements of a private action for damages under the Consumer Protection Act (chapter
[2] Judgment Summary Judgment Review Standard of Review. An appellate court reviews a summary judgment de novo, engaging in the same inquiry as the trial court under CR 56(c) and viewing the facts submitted in the light most favorable to the nonmoving party.
[3] Consumer Protection Action for Damages Unfair or Deceptive Conduct What Constitutes In General. For purposes of a private action under the Consumer Protection Act (chapter
[4] Consumer Protection Action for Damages Unfair or Deceptive Conduct Question of Law or Fact Review. For purposes of a private action under the Consumer Protection Act (chapter
[5] Consumer Protection Action for Damages Unfair or Deceptive Conduct Statement of Untrue Fact Necessity. A deceptive act or practice within the meaning of the Consumer Protection Act (chapter
[6] Insurance Consumer Protection Acts of Insurer Unfair or Deceptive Conduct Subrogated Tort Claim Notice Appearance of Debt Collection Notice. When an insurer has been subrogated to an insured's rights against an underinsured motorist, the practice by the insurer or an agent of the insurer of sending to the underinsured motorist a notice that looks like a debt collection notice indicating in urgent tones that there is an "amount due" that must be paid as if there were a debt actually owed when all that exists is an unliquidated tort claim constitutes a deceptive act or practice that is actionable as a violation of the Consumer Protection Act (chapter
[7] Consumer Protection Action for Damages Unfair or Deceptive Conduct Reasonableness of Acts Effect. The reasonableness standard of RCW
[8] Credit Collection Federal Fair Debt Collection Practices Act Scope Subrogation Interests. The federal Fair Debt Collection Practices Act (15 U.S.C. § 1692) specifically regulates only the collection of consumer debt or alleged debt arising from a "transaction," which has been defined to mean a consumer obligation arising out of consensual or contractual arrangements, not damage obligations thrust upon one as a result of no more than his or her own negligence. The act does not regulate the collection of subrogation interests, whether "alleged" or reduced to judgment.
[9] Credit Collection State Collection Agency Act Scope Subrogation Interests. The Collection Agency Act (chapter
[10] Consumer Protection Exemptions Regulated Industries Scope. The mere fact that a business operates in a highly regulated arena does not mean that its activities are exempt from liability under the Consumer Protection Act (chapter
[11] Consumer Protection Exemptions Regulated Industries "Permission" Identification of Regulatory Agency NecessityThe "safe harbor" provision of RCW
[12] Consumer Protection Action for Damages Sphere of Trade or Commerce "Trade or Commerce" Scope Broad Construction. For purposes of a private action under the Consumer Protection Act (chapter
[13] Consumer Protection Action for Damages Sphere of Trade or Commerce "Trade or Commerce" What Constitutes Consumer Transaction Necessity. The "trade or commerce" element of a private action under the Consumer Protection Act (chapter
[14] Insurance Consumer Protection Acts of Insurer Sphere of Trade or Commerce "Trade or Commerce" What Constitutes Sale of Collection Service Recovery of Subrogated Interest. A collection service company's sale of its services to an insurer to recover for the insurer the insurer's subrogation interest against an underinsured motorist constitutes "trade or commerce" for purposes of a private action under the Consumer Protection Act (chapter
[15] Consumer Protection Action for Damages Standing Nonconsumer. An injured party need not be a consumer of goods or services or be a representative of a consumer to have standing to seek damages for a violation of the Consumer Protection Act (chapter
[16] Consumer Protection Action for Damages Contractual Relationship Necessity. Neither the Consumer Protection Act (chapter
[17] Insurance Consumer Protection Acts of Insurer Sphere of Trade or Commerce "Trade or Commerce" What Constitutes Recovery of Subrogated Interest Notice of Amount Due. When an insurer has been subrogated to an insured's rights against an underinsured motorist, the practice by the insurer or an agent of the insurer of sending to the underinsured motorist a notice that looks like a debt collection notice indicating in urgent tones that there is an "amount due" that must be paid constitutes an act or practice occurring in "trade or commerce" for purposes of a private action under the Consumer Protection Act (chapter
[18] Consumer Protection Action for Damages Effect on Public Interest Question of Law or Fact. For purposes of a private action under the Consumer Protection Act (chapter
[19] Consumer Protection Action for Damages Effect on Public Interest Factors. The factors considered in determining whether an act or practice alleged to violate the Consumer Protection Act (chapter
[20] Consumer Protection Action for Damages Effect on Public Interest Consumer Transaction Factors. For purposes of a private action under the Consumer Protection Act (chapter
[21] Consumer Protection Action for Damages Effect on Public Interest Private Dispute Factors. For purposes of a private action under the Consumer Protection Act (chapter
[22] Consumer Protection Action for Damages Effect on Public Interest Private Dispute Critical Factor. For purposes of the public interest element of a private action under the Consumer Protection Act (chapter
[23] Insurance Consumer Protection Acts of Insurer Effect on Public Interest Recovery of Subrogated Interest Notice of Amount Due. When an insurer has been subrogated to an insured's rights against an underinsured motorist, the practice by the insurer or an agent of the insurer of sending to the underinsured motorist a notice that looks like a debt collection notice indicating in urgent tones that there is an "amount due" that must be paid constitutes an act or practice affecting the public interest for purposes of a private action under the Consumer Protection Act (chapter
[24] Consumer Protection Action for Damages Injury to Business or Property Scope Inability To Quantify. For purposes of a private action under the Consumer Protection Act (chapter
[25] Consumer Protection Action for Damages Injury to Business or Property Nonmonetary Damages. The injury to business or property element of a private action under the Consumer Protection Act (chapter
[26] Consumer Protection Action for Damages Injury to Business or Property Loss of Use of Property. A loss of use of one's property may be sufficient to satisfy the injury to business or property element of a private action under the Consumer Protection Act (chapter
[27] Consumer Protection Action for Damages Injury to Business or Property Decrease of Property or Monetary Interest. The injury to business or property element of a private action under the Consumer Protection Act (chapter
[28] Consumer Protection Action for Damages Injury to Business or Property Investigation Costs In General. Costs incurred in investigating the effect of an unfair or deceptive act or practice will satisfy the injury to business or property element of a private action under the Consumer Protection Act (chapter
[29] Insurance Consumer Protection Acts of Insurer Injury to Business or Property Investigation Costs Notice of Amount Due on Subrogated Claim. When an insurer has been subrogated to an insured's rights against an underinsured motorist and the insurer or an agent of the insurer sends to the underinsured motorist a notice that looks like a debt collection notice indicating in urgent tones that there is an "amount due," the costs incurred by the underinsured motorist in investigating and responding to the notice, including the costs of consulting an attorney and of obtaining credit reports, will satisfy the injury to business or property element of a private action under the Consumer Protection Act (chapter
[30] Insurance Consumer Protection Acts of Insurer Effect on Public Interest Recovery of Subrogated Interest Referral to Debt Collector. An insurer's practice of referring a subrogation interest to a debt collector does not, by itself, have the capacity to deceive a substantial portion of the public and is not actionable by a private party under the Consumer Protection Act (chapter
[31] Torts Joint Tortfeasors Elements. Collaboration or concerted action is needed to establish the relationship of joint tortfeasors.
[32] Torts Concurrent Tortfeasors What Constitutes. Concurrent tortfeasors are parties whose independent acts breaching separate duties concur to produce the injury.
[33] Principal and Agent Liability of Principal Agent's Acts Basis Right of Control. A principal cannot be vicariously liable for agent's activities over which the principal has no right of control. The right to control is indispensable to vicarious liability.
[34] Judgment Summary Judgment Continuance Review Standard of Review. A trial court's decision to grant or deny the continuance of a summary judgment proceeding to allow further discovery is discretionary and will not be disturbed on appeal absent an abuse of discretion. Discretion is not abused in denying the motion if the movant fails to offer a good reason for the delay in obtaining the materials sought.
[35] Appeal Assignments of Error Argument Necessity In Brief. An appellate court may decline to consider an issue for which inadequate argument has been briefed or only passing treatment has been made.
[36] Appeal Assignments of Error Rendered Moot by Disposition of Cause. An appellate court may decline to consider an assignment of error rendered moot by its disposition of the case.
Nature of Action: Actions for damages for violations of the Consumer Protection Act. The plaintiffs were uninsured or underinsured motorists who were involved in accidents that caused injury to others. The injured parties recovered under their own policies, and their insurers were subrogated to their interests for purposes of recovering from responsible parties. The insurers arranged to have their subrogation claims pursued by a collection service company. The collection service company sent notices to the plaintiffs that were styled as "formal collection notices" demanding immediate payment of an "amount due." The plaintiffs alleged that the notices constituted a deceptive practice actionable under the Consumer Protection Act.
Superior Court: In the Stephens case, the Superior Court for King County, No. 04-2-15763-3, Mary Yu, J., on September 19, 2005, entered a partial summary judgment in favor of the plaintiff on the issue of liability, reserving the question of damages for later determination. The defendants sought discretionary review of the partial summary judgment. In the Panag case, the Superior Court for King County, No. 04-2-11732-1, Carol A. Schapira, J., on July 29, 2005, entered a summary judgment in favor of the defendants; however, the court granted the plaintiff additional time to discover whether other persons who had received similar notices were interested in joining the action. The defendants sought review of the ruling granting additional time to discover other potential plaintiffs, and the plaintiff cross-appealed the summary judgment.
Court of Appeals: Holding that the notices were deceptive and that the practice of sending the notices constituted an actionable violation of the Consumer Protection Act, the court affirms the partial summary judgment in the Stephens case, reverses the summary judgment in the Panag case, and remands both cases for further proceedings.
E. Pennock Gheen III-, Charles A. Willmes-, and Jerret E. Sale- (of Bullivant Houser Bailey, P.C.) and Shawnmarie Stanton- (of Safeco Insurance Company), for petitioner Omni Insurance Company.
Clarence C. Jones- (of Gierke, Curwen, Metzler & Erie, P.S.) and Melissa O'Loughlin White- (of Cozen O'Connor), for petitioner/appellant Credit Control Services, Inc.
Stevan D. Phillips-, Margarita V. Latsinova-, and Deirdre L. Runnette- (of Stoel Rives, L.L.P.), for appellant Farmers Insurance Company of Washington.
Matthew J. Ide- (of Ide Law Offices) and Murray T. Stakesby Lewis-, for respondents.
Ά1 BECKER, J. At issue here is a credit collection agency's practice of sending aggressive notices on behalf of insurance companies in an attempt to recover subrogation interests from uninsured drivers. In each of these linked cases, notices styled as "formal collection notices" demanded immediate payment of an "amount due." We conclude the notices are deceptive and hold that the practice of sending them violates the Consumer Protection Act, chapter FACTS Ά2 These two appeals have been linked for consideration because the core issue is the same. Credit Collection Services, Inc., was a defendant in each case below, and the focus of each appeal is the notices sent by Credit to the plaintiffs. Counsel for the plaintiffs is the same in each case. Stephens Ά3 In the first case, Michael Stephens (respondent on appeal) was the plaintiff below. Stephens rear-ended Carrine York's vehicle on June 9, 2003. The damage to her car was appraised at $544.09. York had underinsured motorist coverage with Omni Insurance Company. Omni subtracted the deductible of $100 and sent York a check for $444.09. Ά4 Omni sent several letters to Stephens on August 5, 2003, asking him to get in touch with an Omni representative. One letter said, "We have been notified of the captioned loss. In order to properly investigate the accident, it is important that I obtain your version of what happened." Another stated, "The investigation to date indicates that we may look to you for repayment of our insured's damages. . . . If you do not have insurance to protect you for this accident, we advise you to contact us within 30 days . . . . Your failure to respond within 30 days may result in a judgment against you and the suspension of your driving privileges." Ά5 Omni sent two similar letters to Stephens on October 10, 2003. The first letter stated that York had been paid $444.09 for damage to her car and that Omni claimed a right to reimbursement from Stephens: Our investigation into our insured's loss has determined that your auto was at fault for this accident, and under the terms of our policy we are making a claim against you for reimbursement of the amount we paid. . . . If you do not have insurance for this accident, please contact the undersigned as soon as possible so that arrangements can be made to amicably settle this matter in a manner agreeable to all parties and to avoid any unnecessary legal action. You have a right to dispute any or all of our claims. If you do not dispute it within 30 days of receiving this letter, Omni Automobile will assume that it is valid. You have a right to receive a copy of the repair estimate, a copy of the check that Omni Automobile paid to its insured, or to the repairer of the auto and copies of any or all other documents that verify the existence of our rights of subrogation. The second letter reiterated that Omni was looking to Stephens for full reimbursement: "Since our investigation reveals that you are uninsured for this loss, we seek full reimbursement directly from you for all payments we have made in this matter." Ά6 Six months passed. Omni made two more payments to York: $5,112 for medical expenses and $1,300 for bodily injury. Omni did not contact Stephens about these payments. Omni instead arranged to have its subrogation claim pursued by Credit Collection Services, Inc., a Delaware corporation licensed to collect debt in Washington. Ά7 Credit began by sending a "formal collection notice" to Stephens on April 16, 2004. The notice specified $6,412.00 as the "amount due": SUBROGATION CLAIM THIS IS A FORMAL COLLECTION NOTICE You were involved in an incident which resulted in the above referenced damages being paid by our client. Please be advised that the amount reflected on this notice is an amount already incurred, and any further damages paid as a result of this incident will be added to this amount. Should this occur, you will be so advised. Unless you can provide this office with evidence of insurance coverage that existed on the date of loss, our client will consider you financially responsible. To avoid the possibility of legal action and/or license suspension (contingent upon applicable state law), you can make instant payment by check or credit card through our 24-hour toll-free touch tone service or by accessing our website @ www.ccspayment.com. Ά8 Stephens called Credit twice upon receiving this notice. "I did not understand how I could owe such a debt or why it was in 'collection.' " Ά9 Credit sent Stephens a similar notice three weeks later. This second notice dated May 7, 2004 declared in large print: "ACTIVITY PENDING TEN (10) DAYS." The notice said: "You have failed to respond to our notice requesting full payment -or- evidence of insurance coverage that existed on the date-of-loss." The notice threatened consequences potentially including litigation and license suspension unless Stephens acted "immediately": This office has been authorized to pursue full payment in accordance with both federal and state law(s) which could result in a law suit being filed against you and/or license suspension (contingent upon applicable state law). Be advised, state law requires that financial responsibility be maintained continuously throughout the registration period of your vehicle. Act immediately, as your file is pending further action. Ά10 Soon after Stephens received the second notice, he wrote to Credit, stating that he disputed the charges. He requested proof of payment showing the alleged amount due. Stephens also contacted his insurance company, GEICO. GEICO contacted Credit on May 19, 2004 to let them know that Stephens was insured on the loss. Thereafter Credit sent no more letters to Stephens. Ά11 Meanwhile, concerned that his credit rating was in jeopardy, Stephens consulted an attorney. Panag Ά12 In the second case, Rajvir Panag (respondent on appeal) was the plaintiff below. Panag was injured in a two car accident with Deven Hamilton on October 5, 2003. Panag was uninsured. Hamilton's insurer, Farmers Insurance Company, investigated and concluded that Panag was 40 percent at fault. Farmers paid Hamilton $6,102.53 for property damage. There was a $340 deductible. One month later, Panag received from Credit a "formal collection notice" on behalf of Farmers specifying the "amount due" as $6,442.53: SUBROGATION CLAIM THIS IS A FORMAL COLLECTION NOTICE You were involved in an incident which resulted in the above referenced damages being paid by our client. Please be advised that the amount reflected on this notice is an amount already incurred, and any further damages paid as a result of this incident will be added to this amount. Should this occur, you will be so advised. Unless you can provide this office with evidence of insurance coverage that existed on the date of loss, our client will consider you financially responsible. To avoid the possibility of legal action and/or license suspension (contingent upon applicable state law), you can make instant payment by check or credit card through our 24-hour toll-free touch tone service or by accessing our website @ A representative from Farmers later admitted that the purported "amount due" was a "mistake" as it should have been adjusted to reflect that Farmers' determination of Panag's liability was 40 percent. Ά13 Three weeks later, Credit sent another notice of "Subrogation Claim Regarding: Farmers Insurance," this one enclosed in a black border containing in large font the words, "ATTENTION ATTENTION ATTENTION ATTENTION Enclose Bottom Portion with Your Payment." Again, the notice set forth $6,442.53 as the "AMOUNT DUE." It declared in larger print: "ACTIVITY PENDING TEN (10) DAYS" and then stated, "You have failed to respond to our notice requesting full payment -or- evidence of insurance coverage that existed on the date-of-loss." This office has been authorized to pursue full payment in accordance with both federal and state law(s) which could result in a law suit being filed against you and/or license suspension (contingent upon applicable state law). Be advised, state law requires that financial responsibility be maintained continuously throughout the registration period of your vehicle. Act immediately, as your file is pending further action. Ά14 Credit sent Panag a third notice on December 22, 2003. The words "Western Union" were printed at the top, although the record does not indicate the notice was sent as a telegram. This notice threatened additional consequences for Panag should she fail to pay the "amount due" of $6,442.53: IF CREDIT COLLECTION SERVICES CANNOT EFFECT RECOVERY, A REPORT WILL BE SENT TO OUR CLIENT STATING "VOLUNTARY COLLECTION DEEMED IMPOSSIBLE". FURTHER OPTIONS INCLUDE: 1) PERFORMING AN ASSET SEARCH IN AN EFFORT TO PROTECT OUR CLIENT'S LEGAL INTERESTS IN THIS MATTER. 2) LITIGATION WHICH COULD INCLUDE INTEREST, COURT COSTS AND SHERIFF FEES. 3) NOTIFY THE DEPARTMENT OF MOTOR VEHICLES OF YOUR APPARENT FAILURE TO COMPLY WITH THE FINANCIAL RESPONSIBILITY LAW, WHICH CAN LEAD TO LICENSE SUSPENSION (CONTINGENT UPON APPLICABLE STATE LAW) UNDER THE RULES AND REGULATIONS GOVERNED BY STATUTE. 4) PURSUE COLLECTION THROUGH ANY OTHER METHOD PERMITTED UNDER STATE OR FEDERAL LAW. . . . . *********TO ENSURE PROPER CREDIT, D-E-T-A-C-H THE BOTTOM PORTION OF THIS NOTICE WITH YOUR PAYMENT TO: ********* C.C.S. PAYMENT PROCESSING CENTER [Address in Boston, Massachusetts] Ά15 Panag was "scared" because she "wasn't sure what the debt was about and what they were trying to collect and the amount." CONSUMER PROTECTION ACT Deceptive Act Ά19 The plaintiffs contend Credit's notices have the capacity to deceive because they look like debt collection notices and the uninsured drivers who receive them may be misled into paying the "amount due" as if it were based on a debt they actually owed rather than a tort claim. The defendants respond that the notices are not deceptive because the information conveyed is accurate: the insurance companies had valid subrogation claims based on sums paid to their insureds. Ά22 Credit's notices demand payment for a "subrogation claim"a technical term not easily understoodin a manner indicating that the driver's obligation to pay is already fixed beyond reasonable dispute and immediate payment is the only reasonable course of action. But when Credit found out that Stephens actually did have insurance through GEICO, Credit sent GEICO "a notice of subrogation" that took a different tone. "[Omni's] investigation indicates that liability rests with your insured. . . . [K]indly advise this office immediately of your position with regard to this claim. All necessary supporting documentation is attached. Thank you in advance for your anticipated cooperation." Ά23 Panag's case in particular illustrates how characterizing an unliquidated claim as an "amount due" has the capacity to deceive. Although Farmers estimated Panag's comparative fault at 40 percent, the "amount due" demanded by Credit was 100 percent of the damage to the other vehicle. The notice included no information about how the "amount due" was calculated that would have made the recipient aware of this discrepancy. Ά24 Like the mortgage payoff statement in Dwyer that included charges unrelated to the mortgage, the escrow practices in Bowers that had the patina of legal expertise without the genuine article, and the "Trans-o-Grams" sent by the debt collection agency in Trans World Accounts, the notices sent by Credit were materially misleading even though they contained some accurate information. They created an impression of a debt owed and sent to collection, when in reality all the "creditor" had was a tort claim. This was deceptive. Ά25 Our conclusion on this point is not changed by Camacho v. Automobile Club of Southern California, 142 Cal. App. 4th 1394, 48 Cal. Rptr. 3d 770 (2006), a case defendants have cited as supplemental authority. The plaintiff in that case complained of a virtually identical practice under California's law against unfair competition. The trial court entered judgment for the defendants and the court of appeals affirmed. Ά26 The issue in Camacho was presented by a motion for judgment on the pleadings. The court assumed as factual the plaintiff's allegation that the collection agency had designed notices and threats "to dupe the recipient to pay whatever sums of money" the insurance company and collection agency said were owed. Camacho, 142 Cal. App. 4th at 1399. The Camacho court nevertheless concluded as a matter of law that the practice was not "unfair" under California's statute. Here, defendants suggest that Camacho is persuasive authority on the issue of whether the practice is "deceptive." We disagree. Ά27 The focus of California's statute is "unfair competition." See Camacho, 142 Cal. App. 4th at 1399-1400 (discussing section 17200 of California's Business and Professions Code). Our Consumer Protection Act more broadly attacks "unfair or deceptive acts or practices in the conduct of any trade or commerce." RCW Ά28 Camacho essentially holds that deceptive notices are not actionable in a case where the driver who complains about them admits to being at fault and uninsured. Under Hangman Ridge, however, a deceptive notice is actionable as long as the other four elements are established. Ά29 Washington's act does incorporate a yardstick of reasonableness by providing that practices which are "reasonable in relation to the development and preservation of business or which are not injurious to the public interest" are not violations. RCW Ά30 The act is to be "liberally construed that its beneficial purposes may be served." RCW Ά31 Farmers contends that as a matter of law, representing a subrogation interest as an "amount due" cannot be deceptive because the collection of "alleged" debt is specifically contemplated by the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692. This argument is unfounded. The federal act does not regulate the collection of subrogation interests, whether "alleged" or reduced to judgment. It specifically regulates only the collection of consumer debt or alleged debt arising from a "transaction." Ά32 Farmers complains generally that the plaintiffs are trying to use the Consumer Protection Act to make an end-run around regulatory statutes. The fact that a business operates in a highly regulated arena does not mean that its activities are exempt from liability under the Consumer Protection Act. That argument was made on behalf of mobile home park landlords in Ethridge v. Hwang, 105 Wn. App. 447, 457, 20 P.3d 958 (2001). The landlord argued that mobile home tenancies should be exempt from the Consumer Protection Act because of the specific regulations already found in the Manufactured/Mobile Home Landlord-Tenant Act, chapter Ά33 The act does create a safe harbor for actions "permitted" by state and federal regulatory bodies and officers: Nothing in this chapter shall apply to actions or transactions otherwise permitted, prohibited or regulated under laws administered by the insurance commissioner of this state, the Washington utilities and transportation commission, the federal power commission or actions or transactions permitted by any other regulatory body or officer acting under statutory authority of this state or the United States. RCW TRADE OR COMMERCE Ά35 The defendants generally contend that the plaintiffs cannot satisfy the "trade or commerce" element because the plaintiffs were not involved in a consumer transaction. In support of this argument, they cite the federal Fair Debt Collection Practices Act. But the federal statute, as noted above, does not apply here. It applies only when an effort is made to collect a debt, i.e., an obligation arising from bilateral agreement. In contrast, our Consumer Protection Act applies to "any" trade or commerce affecting the people of the state of Washington, directly or indirectly. RCW Ά36 The sale of Credit's collection services to Omni and Farmers indisputably occurred in trade or commerce. Credit contends this commerce did not affect the "consuming public" because Stephens and Panag are not consumers and therefore they lack standing to invoke the protection the act affords to consumers. Ά37 Neither the act nor Hangman Ridge mentions "the consuming public" or the idea of consumption as a limitation on the definition of "trade or commerce." Indeed, it is well settled that a consumer relationship is not a prerequisite for standing. See, e.g., Escalante v. Sentry Ins. Co., 49 Wn. App. 375, 386-88, 743 P.2d 832 (1987) (estate of passenger in car accident had standing to sue the driver's insurer for bad faith in violation of the act even though she had no consumer relationship to the company), disapproved on other grounds by Ellwein v. Hartford Accident & Indem. Co., 142 Wn.2d 766, 781 n.10, 15 P.3d 640 (2001). Escalante was cited with approval in Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 312, 858 P.2d 1054 (1993). Ά38 Credit contends that under Fisons, a plaintiff who is not a consumer must at least stand in the shoes of someone who is. In Fisons, a physician sued a drug company for unfair and deceptive practices in failing to disclose the dangers of a drug. The drug company argued that the physician lacked standing because he was not the purchaser of the drug. The Supreme Court flatly rejected this argument based on the plain language of the statute: "Although the consumer protection statutes of some states require that the injured person be the same person who purchased goods or services, there is no language in the Washington act which requires that a CPA plaintiff be the consumer of goods or services." Fisons, 122 Wn.2d at 313. Ά39 In the next paragraph, by way of a supplemental rationale, the court recognized that the physician was well situated to prosecute the drug company's failure to give proper warnings: Additionally, in examining the nature of the relationship between a drug manufacturer, a prescribing physician and a patient, it is the physician who compares different products, selects the particular drug for the ultimate consumer and uses it as a tool of his or her professional trade. Under the learned intermediary doctrine, a drug company fulfills its duty by giving warning regarding prescription drugs to the physician rather than to the patient. This unique relationship results in the physician being comparable to the ordinary consumer in other settings. Some cases have concluded that it is the physician who stands in the shoes of the "ordinary consumer" of the drug. Because of this unique relationship, the drug company targets its marketing efforts toward the physician, not toward the patient. The physician, therefore, is a logical person to be the "private attorney general" under RCW Fisons, 122 Wn.2d at 313 (footnotes omitted). Credit argues that the paragraph quoted above implicitly requires that a plaintiff who is not a consumer must at least be in a position to represent the interests of an "ordinary consumer." Ά40 This court has cited the second Fisons rationale in State Farm Fire & Casualty Co. v. Quang Huynh, 92 Wn. App. 454, 460, 962 P.2d 854 (1998) ("an insurance company is a logical party to be the private attorney general because it stands in the shoes of its premium-paying consumers who are affected by false billings from doctors"). See also First State Ins. Co. v. Kemper Nat'l Ins. Co., 94 Wn. App. 602, 609-10, 971 P.2d 953 (1999) (excess insurer may assert a Consumer Protection Act claim which the insured could have brought against the primary insurer). But no case has held it indispensable for a plaintiff to be a representative of someone who has a consumer relationship with the defendants. Such a holding would be inconsistent with our recent decision in Holiday Resort Community Ass'n v. Echo Lake Associates, L.L.C., 134 Wn. App. 210, 219-20, 135 P.3d 499 (2006). The defendant in that case had no contractual or statutory relationship with the tenant plaintiffs. This court, citing the act's rule of liberal construction as well as Short, Fisons, Escalante, and Quang Huynh, concluded that it was error to dismiss the case for lack of standing. "As a general rule, and as a matter of legislative intent, neither the CPA nor case law require privity of contract in order to bring a CPA claim alleging an unfair or deceptive act or practice." Holiday Resort, 134 Wn. App. at 219. See also Nw. Airlines, Inc. v. Ticket Exchange, Inc., 793 F. Supp. 976, 979 (W.D. Wash. 1992) (holding that once Northwest Airlines established all Hangman Ridge elements, it "need not prove it was a 'consumer' "). Ά41 The act simply does not require a consumer relationship as a prerequisite for standing. It does not identify the "consuming public" as the entity to be protected. "Any person who is injured in his or her business or property by a violation of RCW Ά42 In this case, it is the absence of an underlying consumer transaction that makes Credit's notices deceptive. They tend to create the impression that the recipient is a debtor when that is not so. The recipient is a logical "private attorney general" to argue that such deception is injurious to the public interest. Ά43 Because Credit conducts commerce with Omni and Farmers and their commerce directly or indirectly affects people of the state of Washington including uninsured drivers, we conclude that Credit's practice of sending the notices is one that occurred in trade or commerce. PUBLIC INTEREST IMPACT Ά45 This is not a case where the public interest element is satisfied per se by a showing of conduct in violation of a statute containing a specific legislative declaration of public interest impact. Whether the public has an interest is therefore an issue to be determined by the trier of fact. The factors to be considered will depend upon the context in which the alleged acts were committed. Hangman Ridge, 105 Wn.2d at 789-90. For example, where the acts complained of involve "essentially a consumer transaction," such as the sale of goods, the following five factors are relevant: (1) Were the alleged acts committed in the course of defendant's business? (2) Are the acts part of a pattern or generalized course of conduct? (3) Were repeated acts committed prior to the act involving plaintiff? (4) Is there a real and substantial potential for repetition of defendant's conduct after the act involving plaintiff? (5) If the act complained of involved a single transaction, were many consumers affected or likely to be affected by it? Hangman Ridge, 105 Wn.2d at 790. Where the complaint involves "essentially a private dispute," such as the provision of professional services, different factors are involved: (1) Were the alleged acts committed in the course of defendant's business? (2) Did defendant advertise to the public in general? (3) Did defendant actively solicit this particular plaintiff, indicating potential solicitation of others? (4) Did plaintiff and defendant occupy unequal bargaining positions? Hangman Ridge, 105 Wn.2d at 790-91. No one factor is dispositive, nor is it necessary that all be present. Hangman Ridge, 105 Wn.2d at 791. In some cases, the public interest element may be satisfied even though "a neat distinction between consumer and private dispute is not workable." Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 742, 733 P.2d 208 (1987). Ά46 The defendants would prefer to characterize these cases as private disputes. But even though the plaintiffs were not consumers, the relevant factors are those used for evaluating consumer transactions because they show how the practice has the potential of affecting large numbers of people. However the dispute arises, "it is the likelihood that additional plaintiffs have been or will be injured in exactly the same fashion that changes a factual pattern from a private dispute to one that affects the public interest." Hangman Ridge, 105 Wn.2d at 790. Ά47 The defendants do not and cannot seriously dispute that the sending of "formal collection notices" overstating subrogation claims as "amounts due" is a practice with a real and substantial potential for repetition. Nothing in the record suggests that these two cases are unique or isolated. The use of an identical scheme in California is reflected in Camacho. The notices received by Stephens and Panag appear to be form letters. Evidence in the record shows that Omni and Farmers frequently contract with collection agencies to collect money from drivers who have been involved in accidents with their insureds. Credit made a PowerPoint presentation to Farmers soliciting this type of business and representing that Credit's "subrogation coverage services" had been effective in realizing recoveries. Ά48 We conclude the practice complained of by Panag and Stephens satisfies the public interest impact element. INJURY AND CAUSATION Ά49 The plaintiff must have been "injured in his or her business or property" by the deceptive act. RCW Ά50 Stephens attributes several types of injury to the receipt of the "formal collection notice" from Credittime lost from work and travel costs involved in consulting an attorney, the expense of purchasing a credit report ($49.95), and $9.95 per month he spent to sign up for a credit watch service after he filed suit. In Hangman Ridge we held that while the injury need not be great, it must be established. In Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 733 P.2d 208 (1987), we distinguished between the terms "injury" and "damages" and held that "[t]his distinction makes it clear that no monetary damages need be proven, and that nonquantifiable injuries, such as loss of goodwill would suffice for this element of the Hangman Ridge test." The fact that the Act allows for injunctive relief bolsters the conclusion that injury without specific monetary damages will suffice. A loss of use of property which is causally related to an unfair or deceptive act or practice is sufficient injury to constitute the fourth element of a Consumer Protection Act violation. Mason v. Mortgage Am., Inc., 114 Wn.2d 842, 854, 792 P.2d 142 (1990) (footnotes omitted) (alteration in original) (quoting Nordstrom, 107 Wn.2d at 740). Ά52 The act speaks of injury to "business or property." Thus, mental distress, embarrassment, and inconvenience alone do not establish injury. But the scope of injury to "property" is especially broad and is not restricted to commercial or business injury. Keyes v. Bollinger, 31 Wn. App. 286, 296, 640 P.2d 1077 (1982). When a misrepresentation causes inconvenience that deprives the claimant of the use and enjoyment of his property, the injury element is satisfied. See Tallmadge v. Aurora Chrysler Plymouth, Inc., 25 Wn. App. 90, 93-94, 605 P.2d 1275 (1979), cited in Mason, 114 Wn.2d at 854 n.19. Ά53 Credit inaccurately contends the plaintiffs are claiming only emotional injury, i.e., fear of damage to their credit records. The injury they claim is the time and expense of investigating their fear of damaged credit, not the fear itself. "The injury element will be met if the consumer's property interest or money is diminished because of the unlawful conduct even if the expenses caused by the statutory violation are minimal." Mason, 114 Wn.2d at 854. Costs incurred in investigating the effect of an unfair or deceptive act are sufficient to establish injury. See Quang Huynh, 92 Wn. App. at 470. Ά54 The defendants contend the plaintiffs' expenses related to obtaining legal advice did not constitute injury because the advice they received was in the context of the present litigation. They rely on Sign-O-Lite Signs, Inc. v. DeLaurenti Florists, Inc., 64 Wn. App. 553, 564, 825 P.2d 714 (1992). In that case, a maker of signs deceptively induced a florist to sign a six-year lease for a sign and then sued her for the entire inflated cost when she refused to make the monthly payments. The florist counterclaimed and the jury found a violation of the Consumer Protection Act. On appeal, the signmaker unsuccessfully argued that the florist had not established an injury. This court found the injury element established by evidence that dealing with the dispute took up so much of the florist's time that she was unable to tend to her store the way she normally would have. Sign-O-Lite, 64 Wn. App. at 564. But if she had relied solely on her involvement with the litigation precipitated by the dispute, the evidence would have been insufficient: Here, DeLaurenti's mere involvement in having to defend against Sign's collection action and having to prosecute a CPA counterclaim is insufficient to show injury to her business or property, contrary to the trial court's conclusion. To hold otherwise would be to invite defendants in most, if not all, routine collection actions to allege CPA violations as counterclaims. Sign-O-Lite, 64 Wn. App. at 564. Ά55 The concerns underlying this holding in Sign-O-Lite are not present here because the collection Credit was attempting was not "routine" and the plaintiffs were not already defending a collection suit when they received the deceptive notices. The expenses Panag incurred in consulting her attorney were caused by her receipt of the notices, not by the accident itself, and thus cannot be seen as inhering in her personal injury claim. In addition, both Panag and Stephens paid for credit reports. However minimal these costs, we conclude the plaintiffs incurred them to find out whether they actually owed a debt in the "amount due" and to determine how to respond. This was sufficient to establish an injury caused by the deceptive practice. Ά56 In summary, we conclude both Panag and Stephens presented evidence sufficient to establish each of the five elements for violation of the Consumer Protection Act. The trial court erred in dismissing Panag's claim. Because the evidence is undisputed with respect to Stephens' claim against Credit, the trial court did not err in granting him summary judgment on that claim. OMNI'S LIABILITY TO STEPHENS Ά57 In the Stephens case, the trial court entered summary judgment as to liability against Omni as well as Credit. Omni contends that liability for the letters, if any, should be imposed only on Credit. Omni retained Credit Collection Services to pursue recovery of its subrogation claims for the uninsured motorist benefits paid under Ms. York's policy. Omni referred the matter to CCS [Credit Collection Services] by sending it a copy of the medical bills and supporting documentation regarding Ms. York's claim. Omni has no relationship to CCS and retained them as an independent contractor. After sending these materials to CCS, Omni had no more involvement in CCS's efforts to collect the subrogation claim. Specifically, Omni does not exercise control over how CCS pursues recovery of subrogation claims. For example, Omni does not review letters or notices sent by CCS and has no input or involvement in wording, typeface, or format of these letters. Once a matter is referred to CCS, CCS has sole discretion over collection of the claim. CCS has sole discretion over whether to compromise the claim or agree to payment plans. DENIAL OF CONTINUANCE Ά62 Credit assigns error to the trial court's refusal to continue the hearing on the motion for summary judgment in the Stephens case. Ά63 The court signed a stipulated discovery and motions schedule in May 2005. The order scheduled the deposition of Stephens for July 6, 2005, and it scheduled oral argument on all summary judgment motions for August 12, 2005. Later, with agreement of the parties, the court reset the date for oral argument to September 16, 2005. Stephens filed his motion for summary judgment in mid-August and noted the motion for argument on September 16 in accordance with the order. RES JUDICATA CR 12(b)(6) MOTION Ά66 Before Panag moved for summary judgment, Farmers moved to dismiss the action for failure to state a claim. Farmers assigns error to the trial court's decision denying this motion with respect to the Consumer Protection Act claim. We have decided that Panag presented sufficient evidence to meet each of the five elements of a Consumer Protection Act violation. It is implicit in our analysis that she stated a claim, and Farmers was not entitled to judgment on the pleadings. That order is affirmed. DISCOVERY ORDER CONCLUSION Ά68 The order granting Stephens' motion for partial summary judgment against Credit is affirmed. The order granting Stephens' motion for partial summary judgment against Omni is reversed. The order granting the joint motion by Farmers and Credit for summary judgment against Panag is reversed. SCHINDLER, A.C.J., and AGID, J., concur.Reconsideration denied May 25, 2007. Reconsideration denied May 25, 2007.
REGARDING: AMOUNT DUE:
OMNI INSURANCE $6,412.00
REGARDING: AMOUNT DUE:
OMNI INSURANCE $6,442.53