Agreement to Arbitrate Prejudices Insurers
MacLean Townhomes, LLC v. Am. States Ins. Co., 138 Wash. App. 186, 156 P.3d 278 (2007)
In this case, a homeowners association informed its developer about certain construction defects attributable to the building’s siding subcontractor. The developer was named as an additional insured on the siding subcontractor’s commercial general liability insurance policy. However, the developer failed to give the insurer notice of the defects and potential claim. The developer further agreed (again without notice to the insurer) to enter into binding arbitration with the homeowners association.
Division One affirmed summary judgment in favor of the insurer, holding that the developer’s failure to give notice was a violation of the insurance policy, prejudiced the insurer, and was therefore fatal to the developer’s claim. Acknowledging that prejudice is normally a question of fact, the court held that the developer’s agreement to binding arbitration deprived the insurer of full judicial review of the matter. This inability to seek review of a decision, for example, in the case of an error of law, necessarily prejudiced the insurer and excused the insurer of its duty to defend the developer.