michael marinelli and insurance appraisal services hearing
TRANSCRIPT
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THE STATE OF WASHINGTON F\LED
OFFICE OF THE INSURANCE COMMISSIONERzun j~N 30 A (; \ 1
In the Matter of
Michael R. Marinelli
And
Insurance Appraisal Services,
Respondents,
ORDER NO. 16-0155 f1E~N~g€ ~t,111 INSURANCE. coMMIS !ONER
RESPONDENTS' Reply to Insurance Commissioner's Opp.osition to Resp.ondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL
DISMISSAL OF CASE IS REQUIRED BECAUSE THE FACTS ESTABLISH THAT MARINELLI DID NOT ENGAGE IN ANY UNLAWFUL ACTIVITIES
Facts - Not Allegations - Prove That Respondents Did Not Act As Adjusters, And These Facts Compel Dismissal Of Insurance Commissioner's Action Against
Respondents
It is necessary to go back to the beginning of this matter in order to determine
the true facts in this case and to see clearly that the Insurance Connnissioner's action
against Respondents Michael Marinelli and Insurance Appraisal Services is not
supported or justifiable based on the facts of that incident that precipitated this matter.
The Insurance Commissioner and the Office of the Insurance Commissioner
(hereafter, collectively, "OIC") focus all their attention on a single incident - the
Handwerk Claim - in their attempt to demonstrate that Mr. Marinelli engaged in the
activities of a claims adjuster without being licensed as an adjuster. The OIC does not
present any facts to prove their case; they rely exclusively on the allegations of Mike
Harber, the person who filed a complaint against the Respondents related to the
Handwerk Claim. And then, in an effort to create a situation that did not exist in fact,
and using only Mr. Barber's complaint as their source, the OIC falsely, and repeatedly,
asserts that Mr. Marinelli "negotiated" with Mr. Handwerk and. Mr. Harber on a porti.on
RESPONDENTS' Reply to OIC Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL - 1
-=KHECER BEF.GH!Y. PltC=""'" 999 Third Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
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of the Handwerk Claim. (See, OIC Motion for Summary Judgment, p.l; the unsworn
and unverified declaration of Jeff Baughman in support of OIC' s Motion for Summary
Judgment, p. 91; OIC's Opposition to Respondents' Motion for Summary Judgment of
Dismissal, p.l, 6). Not only did Mr. Marinelli nm negotiate any patt of the Handwerk
Claim, he did not engage in any activities at all related to the settlement of the
Handwerk Claim.
The facts of the Handwerk Claim are materially different from the allegations of
Mr. Harber and the erroneous representations of the OIC. These are the facts:
• Mr. Handwerk's car was damaged in an accident with a GEICO insured.
• GEICO had adjusted Mr. Handwerk's damage claim and GEICO had
determined the loss to be $883 .16.
• Mr. Handwerk and GEICO could not agree on the amount of loss.
• GEICO invoked its right to have the loss determined by independent
appraisers for GEICO and Mr. Handwerk, and, ifthe two independent
appraisers failed to agree, then by a third, disinterested "umpire"
appraiser. (See, e-mail messages from Daniel Wheeler, GEICO Auto
Damage Manager, to Scott Handwerk and to Arthur Lerhz, Exhibit A to
Declaration of Brian Kreger Declaration attached hereto as Exhibit 1).
• Mr. Marinelli was retained by GEICO to act as GEICO's independent
1 The Insurance Commissioner again submits unsworn and unverified declarations of Jeff Baughman and of Brandon Lee in support ofinsurance Commissioner's Opposition to Marinelli's Motion for Summary Judgment of Dismissal. As with the unsworn and unverified declarations of Jeff Baughman and Bobby Frye that the Insurance Commissioner submitted in support of his Motion for Summary Judgment, these new tmsworn and unverified declarations do not comply with Washington law. Accordingly, they cannot be accepted and must be disregarded in their entirety. Young Soo Kim v. Choong-HyunLee, 174 Wn. App. 319, 300 P.3d 431 (2013).
RESPONDENTS' Reply to ore Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL -2
-:::KREGEid3EEGHlY. l'LLC ..... :-999 Third Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
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appraiser to provide a post-repair appraisal of Mr. Handwerk's
automobile. (See, Craig Caswell statement, attached as exhibit B to
Declaration of Brian Kreger).
• Mr. Marinelli was refused access to Mr. Handwerk's car.
• Mr. Marinelli never had the opportunity to see Mr. Handwerk's car.
• Mr. Marinelli never had the chance to perform the post-repair appraisal
of Mr. Handwerk's car.
• Because he could not view the car, Mr. Marinelli was not able to
confirm if Mr. Handwerk's car had any defects.
• And, as a result, Mr. Marinelli never could prepare a damage estimate or
attempt to get to an agreement on the scope of damages, as Mr. Caswell,
GEICO's claims supervisor, had specifically directed Mr. Marinelli to
do.
(See, Caswell statement; Declaration of Michael R. Marinelli, attached
hereto as Exhibit 2)
The facts show, clearly, indisputably, and unequivocally, that Mr. Marinelli
never engaged in any of the activities the Insurance Commissioner and the OTC allege
he did. He simply never had the opportunity to even begin to carry ant the directives
given to him by GEICO's Claims Supervisor or to undertake the functions and
responsibilities as an appraiser of the post-repair damage to Mr. Handwerk's car.
And, while there may have been sharp words exchanged between Mr. Harber
and Mr. Marinelli, the facts clearly demonstrate that Mr. Marinelli certainly did not
have the opportunity to "get to an agreement with Mr. Harber." Mr. Caswell makes
this perfectly clear when he explained to the OIC:
RESPONDENTS' Reply to OIC Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL -3
--::: KIU:GER BEEG.H.!.:V. PUC:=-999 Thii'd Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
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"With respect to this claim [RE: Handwerk Nissan Versa] no post loss inspection ever conducted as Haury' s refused Mr. Marinelli access to the vehicle for inspection. The only 1hing that did transpire was a series of email communications between rAS and Harber Appraisal which abruptly ended when the owner's owi1 insurance carrier took over and settled the claim." (See, Caswell statement).
And, it is a fact that Mr. Marinelli certainly never negotiated a portion of the
Harber claim, as the Insurance Commissioner and t!Je ore falsely allege. The facts
show t!Jat the ore's allegations of what happened, simply did not happen. Nor did any
oft!Je other acts the OIC alleges Mr. Marinelli did. And the OIC's attempt to show that
Mr. Marinelli did engage in any of the acts that the ore wrongly alleges, based solely
on Mr. Harber's allegations in his complaint, does not establish t!Jat those acts took
place. The facts show that the OIC's allegations are error-filled and false; and the
things the ore complains of that Mr. Marinelli is alleged to have done, simply do not
exist in fact.
Because Mr. MarineJli never did any oft!Je acts the Insurance Commissioner
and the OIC allege he did(including, most notably, the OIC's error-filled allegations
that Mr. Marinelli "negotiated" a part of the Handwerk claim), it is impossible for Mr.
Marinelli to have done anything that requires an adjuster license, or that is in any way
contrary to the adjuster licensing provisions of the insurance code.
Mr. Marinelli simply did not engage in any activities with respect to t!Je
Handwerk Claim that required him to have an adjuster license. Because he was denied
access to Mr. Handwerk's car, Mr. Marinelli was not able to do anything to cmry out to
the directions GEICO had given him. And, he ce1tainly did not act as an adjuster with
respect to any of the post-repair work on Mr. Handwork's car. As Mr. Caswell told the
OIC: "the owner's own insurance carrier took over and settled the claim."
RESPONDENTS' Reply to OIC Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL -4
--::::: Kn.EGER HEEG H LY. Pl.LC=·· 999 Third Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
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The Respondents' Motion for Summary Judgment of Dismissal is supported by
uncontroverted facts. A reasonable fact finder can reach only one conclusion: the
Respondent's Motion for Summary Judgment of Dismissal should be granted and the
Insurance Commissioner's Order to Cease and Desist and Notice oflntent to Impose a
Fine should be rescinded.
"A court may grant summary judgment when, on the basis of the facts before it, a reasonable fact finder could reach only one conclusion. See SentinelC3 v. Hunt, 181Wn.2d 127, 140, 331 P.3d40 (2014)."
Kim v. Lakeside Adult Family Home, 185 Wn. 2d 532, 374 P.3d 121 (2016).
The Insurance Commissioner's action against the Respondents must be
dismissed. The facts clearly show that there has been no violation of Washington law
that justifies the OIC's Order to Cease and Desist and Notice oflntent to Impose a Fine
issued against the Respondents. The OIC' s Order must be rescinded and this case must
be dismissed.
"Trial courts properly grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law .. Morin v. Harrell, 161 Wn. 2d 226, 230.164 P.3d 495 (2007)."2
Key Dev. Inv. V. Port a/Tacoma, 173 Wn. App. 1, 292 P.3d 833 (2013).
Respondents have presented real facts, not allegations. The facts show that
there is no genuine issue of material fact that the Respondents did not engage in imy
activity that violated Washington law, in particular the adjuster licensing provisions of
the insurance code, and that they did nothing with respect to the Harber Claim that
2 Court's footnote 41 here, reads: "We may affirm a summary judgment "upon any 24 theory established by the pleadings and supported by the proof, even if the trial court
did not considerit." LaMon v. Butler, 112 Wn. 2d 193, 200-01, 770 P .2d 1027 (1989)." (Internal quotes in original).
RESPONDENTS' Reply to ore Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL - s
-···;::: KHEGEH Btc:EGH LY. l'LLC :::;-·
999 Third Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
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would require an adjuster license. The facts support the Respondents' Motion for
Summary Judgment of Dismissal. The Respondents' Motion should be granted and the
OIC's case against the Respondents must be dismissed.
EVEN ASSUMING-BUT CERTAINLY NOT CONCEDING-THAT MR. MARINELI,I WAS INVOLVED IN THE HANDWERK CLAIM, HIS ACTS DID
NOT REQUIRE AN ADJUSTER LICENSE.
Mr. Marinelli's appraisal assignment in the Handwerk C1aim was unde1· the direct supervision of the GEICO claims supervisor on a fully adjusted claim for
which an adjuster license is not required.
Craig Caswell contacted Mr. Marinelli about the Handwerk Claim because,
after GEICO had fully adjusted the claim, GEICO' s offer to Mr. Handwerk was
rejected. Consequently, GEICO exercised its right to have the disputed Handwerk
Claim appraised by independent appraisers, one retained by GEICO and one retained
by Mr .. Handwerk. GEICO retained Mr. Marinelli.
Mr. Marinelli was directed to perform a post-repair appraisal of Mr.
Handwerk' s car and report to Mr. Caswell if any defects in the repair had been found.
Mr. Caswell states unequivocally that Mr. Marinelli was not instructed or retained to
adjust the claim since that responsibility resided only with the Auto Damage adjusters
and the Auto Damage Supervisors for GEICO. (See, Caswell statement, Ex. B to
Kreger Declaration).
In his sworn declaration, Mr. Marinelli states that he was at all times in the
Handwerk Claim assignment acting strictly according to the instrnctions and directly
under the supervision ofMr. Caswell. As the facts show, Mr. Marinelli never had the
chance to fulfill his duties under the post-repair appraisal assignment Mr. Caswell and
RESPONDENTS' Reply to ore Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL - 6
-~KJ!Ji'Gbll T:IB!>C:HLY, i'LLC ::.:--· 999 Third Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
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GEICO had given him. However, that does not alter the facts, established by the
statements and sworn declaration of Mr. Caswell and Mr. Marinelli, that if Mr.
Marinelli had been able to conduct his independent appraisal if Mr. Handwerk' s care,
he was under the direct sup.ervisio11 of the GEICO claims adjusters who bore the
ultimate responsibility for settling the Handwerk Claim. It is not necessary for an
adjuster (like Mr. Caswell) to constantly monitor the appraiser (like Mr. Marinelli) to
establish that the appraiser is subject to the direction and supervision of the adjuster.
On the contrary, the work of an independent appraiser, like Mr, Marinelli must be
conducted in a fair and unbiased manner. Mr. Marinelli's professional responsibility in
can-ying out the work GEICO had given him was to act as an "independent appraiser"
without any outside interference
This is necessary in the field of auto damage appraisals and is consistent with
the Supreme Court's acknowledgement of the independence of the appraiser in Gouin
v. Northwestern National Ins. Co., 145 Wash. 199, 259 P. 387 (1927).
"The evidence does not disclose that anything unusual occurred between himself [Gouin] and the insurance company after the fire loss was suffered. On the contrai-y, it appears that the ordinary course was pursued. T11e appellant [Gouin] made proofs of his loss, claiming a total destruction of the property and a loss in excess of the amount of the insurance. The company disputed the claims, contending that there was but a partial loss, ai1d sought to adjust the differences in an amicable manner. Failing in this, they caused the Joss to be appraised by their adjuster, and offered to pay to the appellant the amount the adjuster determined the amount to be. On the refusal of the appellant to take this sum, they demanded an appraisal by appraisers under the terms of the policy. There is nothing tending to show that the compapy in any way interfered wjth, or sought to control, the action of the appraisers; and nothing to show that the appraisers did not act indepcndc11tly, impartially, and in accordance with their honest judgment." (Gouin, supra, at p. 205-206). (Emphasis added).
RESPONDENTS' Reply to ore Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL" 7
-::::: KIH'.GER BEEGHLY, 1'11.C :~;·"' -999 Third Ave, Suite 3000
Seattle, WA 98104·4088 (206)829"2708
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In fact, the OIC acknowledges that an appraiser acting under the supervision of
an adjuster is to act as an "independent appraiser." In his unswom declaration, Jeff
Baughman, the OIC's producer licensing manager, states that, "If an appraisal clause
has been properly evoked, after the claim as been fully adjusted, then the independent
appraisers who provide reports of damage as part of the appraisal clause of an
insurance contract, would not be required to be licensed as adjusters."
It is uncertain what Mr. Baughman means when he refers to a claim being
"fully adjusted" as a prerequisite to the triggering of the appraisal clause in a policy.
Mr. Baughman appears to have fabricated a condition (a "fully adjusted claim") to
invoking the appraisal clause that does not exist in the real business of insurance and in
the actual process of adjusting and settling insurance ·Claims.
In fact, the process of claims settlement under an appraisal clause can be
invoked at any time. Mr. Phillip White, an experienced insurance adjuster with a long
history of settling claims, notes that, "In my experience, the appraisal clause can be
invoked as a means of settling a disputed claim at any time in the claims adjusting
process, unless the insurance policy contains specific provisions about the process and
timing for requesting that the claim is to be settled under the appraisal clause." (See,
Declaration of Phillip White, attached hereto as Exhibit 3).
The appraisal clause can be invoked at any time i.n the claim settlement process.
Mr. Wheeler and Mr. Caswell; GEICO's claims professionals, clearly establish that
GEICO was invoking the appraisal clause procedure for settling the disputed Handwerk
Claim. But, even if one were to accept Mr. Baughman's and the OJC's dubious
argument that the appraisal clause can be invoked only after a claim has been "fully
adjusted," the facts show that GEICO had, indeed, fully adjusted Mr. Handwerk's
RESPONDENTS' Reply to OIC Opposition to Respondents' MO'I10N FOR SUMMARY JUDGMENT OF DISMISSAL - 8
--::::KmlCER BHiGHLY. l'LLC =-999 TI1ird Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
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Claim. GEICO had determined that the claim was worth $883.16 and had so informed
Mr. Handwerk. When Mr. Handwerk rejected GEICO's fully aqjusted claim amount,
GEICO invoked its right to "resolve the differences" through the independent appraisal
method. (See, Wheeler e-mails to Handwerk).
Because GEICO had fully adjusted the Handwerk Claim and made a
determination as to the value of the claim, and because GEICO had exercised its right
to invoke the appraisal clause claim settlement process in order to resolve the parties'
differences after the value of the claim was disputed, the Handwerk Claim was, in fact,
exactly the situation Mr. Baughman describes in his unsworn statement, namely, this:
the claim had been fully adjusted; an offer had been made by the carrier, GEICO; the
offer was rejected by Handwerk. (See, Baughman declaration, ~3).
GEICO was within its rights to have the differences in the fully adjusted
Handwerk Claim determined by independent appraisers under the appraisal clause
method of settling insurance claims. And, to assist in this effort, GEICO hired Mr.
Marinelli as its independent appraiser. That the Handwerk Claim was to be determined
under the appraisal clause method, where the two parties settle their differences by
engaging independent appraisers, is an impo1tant element of this entire matter since it is
the Handwerk Claim that the OIC used as its basis for bringing this current action
against the Respondents.
But the most imp01tant fact of all is the one described by Mr. Baughman
himself, and that is that the Handwerk Claim was precisely the situation in which an
independent appraiser, such as Mr. Marinelli, would not be required to be licensed as
an adjuster. This is exactly the conclusion Mr. Baughman, the OIC's supporting
RESPONDENTS' Reply to ore Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL - 9
·-::;:: I\J\EGEH BEEGHLY, l'LLC =:·· 999 Third Ave, Suite 3000 Seattle, WA 98104-408 8
(206)829-2708
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witness, expresses. Mr. Baughman describes the very situation that existed in the
Handwerk Claim and then states without qualification:
"If an appraisal clause has been properly evoked, after the claim has been fully adjusted, then the independent appraisers who provide reports of damage as part of the appraisal clause of an insurance contract. woulq not be required to be licensed as adjusters." (Baughman declaration, ~3).
THE FACTS ARE CLEAR AND INJ)ISPUTABLE THAT THE 9 RESPONDENTS' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL
SHOULD BE GRANTED AND THE OIC'S ORDER AGAINST THE 10 RESPONDENTS MUST BE RESCINDED AND THIS CASE DISMISSED
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The FACTS clearly establish that the Respondents did not engage in any
activities or conduct that violate the adjuster licensing provisions of the Insurance Code
or which would require the Respondents to be licensed as adjusters.
GEICO had fully adjusted the Handwerk Claim and had offered the amount of
$883.16 to Mr. Handwerk. Mr. Handwerk disputed and rejected GEICO's adjusted
amount. GEICO attempted to settle the differences in the disputed Handwerk Claim by
invoking the appraisal clause method of settling claims through independent appraisers.
GEICO had hired the Respondents who were directed by GEICO to act as their
independent appraiser under the appraisal clause process of settling claims. The
Respondents were directed to perform a post-repair inspection of the Handwerk
vehicle, to detennine if any damage existed, report back to GEICO, and to attempt to
come to an agreement with the other appraiser on the scope of needed repairs.
Before he could even begin on his appraisal assigoment from GEICO, Mr.
Marinelli was denied access to Mr. Handwerk's car. As a result, Mr. Marinelli never
RESPONDENTS' Reply to ore Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL - IO
--::: KHEG El< HEEG H t:Y. PIH.;=-" 999 Third Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
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had the opportunity to perfo1m any of the work GEICO had hired him to do. He
simply could not do anything and, obviously, he did not do anything that would even
remotely resemble any work requiring an adjuster license.
Respondents did not do anything in the conduct of their business as independent
auto damage appraisers that violates the. Insurance Code, and certainly did not engage
in any conduct that requires an adjuster license.
Even if Mr. Marinelli had been able to fulfill his duties and responsibilities as
an independent appraiser for GEICO under the appraisal clause process of settling the
Handwerk Claim, he would not have been required to be licensed as an adjuster
because the Handwerk Claim presents the exact situation which the Insurance
Commissioner and the OIC clearly and unqualifiedly state would not require the
Respondents to be licensed as adjusters. The Handwerk Claim was a fully adjusted
claim that was being settled by invoking tile independent appraiser process. The
Insurance Commissioner and the OIC confirm that the Respondents, as independent
appraisers who provide reports of damage as part of the appraisal clause of an
insurance contract, are not be required to be licensed as adjusters.
The Supreme Court's words speak forcefully in this case:
"''A court may grant summary judgment when, on the basis of the facts before it. a reasonable fact finder could reach only one conclusion. See Sentine/C3 v. Hunt, 181 Wn. 2d 127, 140, 331P.3d40 (2014)."
Kim v. Lakeside Adult Family Home, supra at 547; emphasis added.
RESPONDENTS' Reply to OIC Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL- 11
-··=KHEGE!l BEECH LY, !'LI c:::-·· 9991hird Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
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The Insurance Commissioner's Order to Cease and Desist and Notice of
Intent to Impose a Ji'ine is wholly without merit and completely unjustified under
the facts in this case. The Respondents have proven, by the facts, that the
Insurance Commissioner's Order should be rescinded and that the OIC's action
against the Respondents must be dismissed.
Respondents respectfully request that Respondent's Motion For Summary
Judgment Of Dismissal be granted.
DATED this 30th day of January, 2017.
KREGER BEEGHLY, PLLC
Brian F. Kreger, WSBA Number 106 Attorney for Licensees
RESPONDENTS' Reply to OIC Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL - 12
-··:::: KllEGEI< BEEGHLY. PU.C :::·· 999 Third Ave, Suite 3000 Seattle, WA 98104-4088·
(206)829-2708
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CERTJFJCATE OF SERVICE
I, Brian F. Kreger, under penalty ofpe~jury under the laws of the State of Washington do hereby dec\are and certify that 1 served and caused to be delivered by United States Postal Delive1y and by Electronic Mail Delivery the foregoing RESPONDENTS' Reply to Insurance Commissioner's Opposition to Respondents' MOTION FOR SUMMARY JUDGMENT OF DISMISSAL on the following parties or persons at the last known addresses given below:
8 TO: Marta DeLeon
9 Assistant Attorney General Office of the Attomey General
10 1125 Washington Street, SE P.O. Box 40100
11 Olympia, WA 98504-0100 and to·. MqnaQ@ATQ:J~Lt\~'.
TO: Hearings Unit William Pardee, Presiding Officer ATTN: Dorothy Seaboume-Taylor Office of the Insurance Conunissioner P.O. Box4025S Olympia, WA 98504-0255 and to: R!!filtl1Y.S@ili£.iYa.g:Qy
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"'""'"' ""w,-.:d!: "'' ~ 2011 in s~w, w A.
-~ r-"' '"'
171'-"
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CERTIFICATE OF SERVICE -1 ::::: KRFGUz BEEGHLY. PU.C :::.·: ... 999 Third Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
EXHIBIT 1
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THE STATE OF WASHINGTON
OFFICE OF THE INSURANCE COMMISSIONER
In the Matter of ORDERNO. 16-0155
Michael R. Marinelli Declaration of Brian Kreger
And
Insurance Appraisal Services,
Respondents,
I, Brian Kreger, under penalty of perjury under the laws of the State of
Washington, do hereby make this Declaration as my own statement freely given as
follows:
I. I am the attorney representing the Respondents, Michael R. Marinelli and
Insurance Appraisal Services, in the above·captioned matter.
2. Attached hereto are the following described documents that are part of the
records of both parties to this action and other materials that I have received during my
investigation, discovery and preparation related to this matter, and that pertain to the
incident that precipitated the current OIC action against the Respondents:
A. Copy of e-mail communications between Daniel Wheeler,
GEICO Auto Damage Manager, and Mr. Handwerk, dated January 7, 2016 in
which GEICO advises Mr. Handwerk that because Mr. Handwerk and GEICO
cannot agree 011 the amount ofloss, GEICO is requesting that independent
Kreger Declaration - I -:::: KIU'.G Ell BEEGHLY. PLLC -::::::-999 Third Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
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appraisers assess the repair work and if the independent appraisers for Mr.
Handwerk and GEICO fail to agree, then th.ey are to submit the dispute to a
third, or umpire, appraisers. Mr. Wheeler also advises Mr. Handwerk that
GEICO has selected an independent appraiser to resolve the ditlerences on the
Handwerk Nissan Versa claim. Mr. Wheeler also communicates the same
information to Mr. Leritz, Mr. Handwerk's attorney, regarding attempts to
resolve the disagreement for the cost of repairs by independent appraisal. These
documents were provided to Brian Kreger by Mr. Craig Caswell.
A true m1d exact copy of the document containing these e-mail communications
is attached to this Declaration as Exhibit A.
B. Statement by Craig Caswell, Field Representative in the Seattle Metro
Claims Office of GEICO Insurance Company. Mr. CasweLl's comments relate to
GEICO's Handwerk claim ("RE: Handwerk Nissan Versa" claim) that precipitated the
current OIC action against the Respondents. Mr. Caswell provided his statement to the
Office of the Insurance Commissioner (O!C) and it is part of the OIC's record and
included in the materials attached to the statement of Bobby Frye, the OIC's
investigator.
Mr. Caswell clearly states that Mr. Marinelli and Insmance Appraisal Services
were retained to provide a post-repair inspection of Mr. Hm1dwerk's vehicle. Mr.
Caswell also clearly states that Mr. Marinelli and Insurance Appraisal Services were
not retained to adjust the subject loss, because that authority resides "with the Auto
Damage adjusters illd Auto Damage Supervisors for GEICO."
Kreger Declaration -2 -=:KREGt'.n BEEGHLY. PLLC :::::::-999111ird Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
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Mr. Caswell also advises the OIC of a very important fact regarding the
Handwerk Nissan Versa claim as follows:
"With respect to this claim no post loss inspection was ever conducted Haury's refused Mr. Marinelli access to the vehicle for inspection. The only thing that did transpire was a series of email communications between IAS and Harber Appraisal which abruptly ended when the owner's own insurance carrier took over and settled the claim."
A true and exact copy of this document was provided as part of Respondents'
Motion for Summary Judgment of Dismissal and is also attached to this Declaration as
Exhibit B.
This Declaration, consisting of three pages, and containing two Exhibits A and B, is
dated and signed in Seattle, Washington this ..z;rf!::day ofJanuary 2017.
Kreger Declaration • 3 .c.. KHEGEH BEEGHLY. l'l.LC ::::-· 999 Third Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
EXHIBIT A
Brian Kreger
From: Sent: To: Subject: Attachments:
Hi Brian,
Here are the additional emails.
Thanks, v/r Craig
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Caswell, Craig <[email protected]> Wednesday, November 16, 2016 1 :06 PM Brian Kreger FW: Marinelli RE: Geico Claim: 0521890350101014-02 (1.67 MB); RE: 2012 Nissan repairoptions·-Scott Handwerk (29.9 KB); FW: Hau1ys vehicle inspection (10.5 KB); FW: Handwerk Haurys vehicle inspection (38.3 KB); FW: FW: re Geico claim 0521890350101014-02 Handwerk Nissan Versa (38.9 KB) ·
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Brian Kreger
From: Sent: To:
Arthur Leritz <[email protected]> Thursday, January 21, 2016 5:35 PM Wheeler, Daniel (AD)
Cc: Arthur Leritz; Lauren Adler Subject: RE: Geico Claim: 0521890350101014-02 Attachments: 20740 Handwerk Final Bill.pdf; 20740 Nissan Versa Repair Timeline.pdf
Dan,
I just received the attached. I look forward to talking to you tomorrow.
Arthur
From: Wheeler, Daniel (AD) [mailto:[email protected]] Sent: Friday, January 15, 2016 4:07 PM To: Arthur Leritz <[email protected]> Subject: RE: Gelco Claim: 0521890350101014-02
Mr. Lerltz,
We have yet to receive a response from your office in regards to the below letter dated on January 7m, Please let us know as soon as possible whether or not you will provide us authorization for our independent appraiser to inspect Mr. Handwerk's vehicle in order for us to expedite resolution to this matter.
The last authorized day of rental has been set for Wednesday January 2om, as we have made numerous attempts to resolve the disagreement for the cost of repairs and all of our efforts have been rejected.
Sincerely
Dan Whe.eler Auto Damage Manager 206·498-3558
From: Arthur Leritz [rmlllto:alfilitJ:..@MJergier;;i;;l\,coru] Sent: Thursday, January 07, 2016 3:49 PM To: Wheeler, Daniel (AD) Cc: Scott Vincent Handwerk; Lauren Adler; Arthur Lerltz; Mike Harber Subject: Gelco Claim: 0521890350101014-02
Mr. Wheeler,
Please be advised that Mr. Handwerk has retained my office regarding his claim. Please kindly direct all further communication to my office. You should be getting a copy of my letter of representation shortly.
Sincerely,
Arthur 'P. Lerttz Attorney
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Adler Giersch, PS Personal Injury Law Compassionate Counsel, Tough Advocacy www.adlergi<EJ:.sch.com Se;:ittle 333 Taylor Ave North I Seattle, WA 98109 IT 206,682.0300 I F 206.224.0102 Bellevue 14710 SE 36th Street I Bellevue, WA 98006 IT 425.643.0700 I F 425.643.8038 Evnrett 4204 Colby Avenue ! Everett, WA 98203 I T 425.338.7700 l F 425.337.1994 Kent 1111 W. Meeker I Kent, WA 98032 IT 253.854.4500 I F 253,854.4824 CONFIOENTIALl1Y NOTE: This e-mall message contains information belongln_g to the law firm of Adler Giersch, P.S. which Is privlleged, confidential and/or protected from dlsclosure, The lnfonnatlon ls lntended only for the use of the Individual named above, If you think that you have received this message In error, please e-mail the sender, If you are not the intended recipient, any dlssemlnatlon1 dfstrlbution or copying Is strictly prohlblted.
UEST Ct!MP/.NIES N.1''1rt.H1f",•-O;.I
*i!'h& ----------Forwarded message ---·-····· From: Wheeler, Daniel (AD) <[email protected]> Date: Thursday, January 7, 2016 Subject: Geico Claim: 0521890350101014-02 To: "Scott Vincent Handwerk {[email protected])" <fill.~.]399@g_rpJli!&QQ}>
January 7, 2016
Mr. Scott Handwerk
8416 5th Ave NE, Apt 105
Seattle, Washington 98115
Date of Loss: May 2, 2015
Geico claim: 0521890350101014-02
Dear Mr. Handwerk,
In an effort to resolve your concerns with the repairs to your Nissan Versa, we have inspected and prepared an estimate in the amount of $883.16. Since we cannot agree on the amount of loss, GEICO has selected a competent appraiser to resolve the differences. If both independant appraisers fail to agree, then both appraisers can submit the dispute to a competent and disinterested umpire. GEICO has selected Mr. Rob Marinelli from Insurance Appraisal Services to serve as our appraiser. He has recomeneded Pacific Auto Body in Seattle, a Nissan factory certified repair shop to serve as the disinterested third party umpire.
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Please let us know as soon as possible whether you will provide us authorization for our independant appraiser to inspect your vehicle so that we can expedite resoulution of your claim. If Haury's conitnues to impede our access and ability to assist in resolving the dispute we will be forced to discontinue providing rental car expenses.
Dan Wheeler
GEICO Auto Damage Manager
206-498-3558
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Sent from Gmail Mobile
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EXHIBIT B
-------- Original message --------From: "Caswell, Craig" <[email protected]> Date: 02/1212016 4:50 PM (GMT-08:00) To: [email protected]. Subject: Rob Marinelli, IASBellevue RE: Handwerk Nissan Versa
To whom it may concern,
Rob Marinelli Is not now or n.ever has been an employee of GEICO. He Is not now or never has been under contract with GEICO for appraisal services. He is an experienced auto damage appraiser that was asked to inspect a vehicle post repair \n order to: 1) con1irm if there were indeed any defects and 2) .if defects were found, prepare a damage estimate and attempt to get an agreement with Mr. Harber on the scope of necessary repairs.
Mr. Marinelli was not instructed or retained to adjust the loss, that responsibility resides with the Auto Damage adjusters and the Auto Damage Supervisors for GEICO.
With respect to this claim no post loss Inspection ever conducted as Haury's refused Mr. Marinelli access to the vehicle for Inspection. The only thing that did transpire was a series of email communications between IAS and Harber Appraisal which abruptly ended when the owner's own insurance carrier took over and settled the claim.
Thanks,
v/rCraig
Craig Caswell
Field Supervisor
Seattle Metro Ph# 253-312-6023 Fax# 855-731-1157
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. destroy all paper and electronic copies of the ol'iginal message.
This email/fax message Is for the sole use of the intended reclpient(s) and may contain confidential and privileged Information. Any unauthorized review, use, disclosure or distribution of this email/Fax is prohibited. If you are not the intended recipient, please destroy all paper and electronic copies of the original message.
EXHIBIT2
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THE STATE OF WASHINGTON OFFICE OF THE INSURANCE COMMISSIONER
In the Matter of
Michael R. Marinelli
And
Insurance Appraisal Services,
Respondents,
ORDER NO. 16-0155
Declaration of Michael R. Marinelli
In Support of Reply to Insurance
Commissioner's Opposition to
Motion to Dismiss
14 I, Michael R. Marinelli, under penalty of perjury under the laws of the State of
15 Washington, do hereby make this Declaration as my own statement freely given as
16 follows:
17 1. I am over the age of eighteen years, am competent to testify to the matters
18 set forth herein on the basis of first-hand knowledge and belief.
19 2. I have reviewed the Insurance Commissioner's Opposition to Marinelli's
20 Motion for Summary Judgment of Dismissal, and the Declarations of Brandon Lee and
21 Jeff Baughman, and run familiar with the contents of those documents.
22 3. The Insurance Commissioner has stated certain "FACTS" relating to "Mr.
23 Marinelli' s Work On The Handwerk Claim" that do not accurately recite what really
24 happened in the Handwerk assignment. For example, The Insurance Commissioner
alleges that I "directly contacted Mr. Handwerk for the purposes of coming to an
DECLARATION OF Michael R. Marinelli_- 1
-=KRFGl'.ll BEEGH.LY, l'U .. C ::::--999 Third Ave, Suite 3000
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"agreed cost of repairs" concerning Mr. Handwerk's damaged auto. This is not true. I
did not contact Mr. Handwerk for the purpose of coming to an agreed cost of repairs. I
contacted Mr. Handwerk by email to attempt to set up a time and place for me to view
his automobile and perform a post-repair appraisal as requested by GEICO.
4. These are the facts in the Handwerk Claim matter:
a. Mr. Handwerk's Nissan Versa was damaged in an accident with a
person who was insured by GEICO. The damage was repaired and it is my
understanding that Mr. Handwerk was not satisfied with the repair job and retained Mr.
Mike Harber to perform a post-repair inspection of the car and the repair work. Mr.
Handwerk, himself or through Mr. Harber, notified GEICO of the need for additional
repairs to Mr. Handwerk's car.
b. GEICO disagreed with the estimated cost of the additional repair
work that was to be done on Mr. Handwerk's car. Mr. Handwerk insisted that the
additional work must be done,
c. Because Mr. Handwerk and GEICO could not agree on the final
amount of the Joss claimed by Mr. Handwerk, GEICO contacted Mr. Handwerk to
advise him that GEICO wanted to have independent appraisers inspect Mr. Handwerk's
car to resolve their differences.
d. Mr. Craig Caswell, GEICO's claims supervisor, contacted me in
December 2015 to act as GEICO's independent appraiser on the Handwerk Claim. Mr.
Caswell ~'Pecifically instructed me to perform a post-repair inspection of Mr.
Handwerk's car, to detennine if there was any additional damage that needed to be
repaired, and to attempt to come to an agreement with Mr. Handwerk's independent
DECLARATION OF Michael R. Marinelli_. 2
-:=K!<EGER BfillGHLY, PLLC::::""'"999 Third Ave, Suite 3000
Seattle, WA 98104·4088 (206)829·2708
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appraiser, Mr. Harber, on the cost of those additional repairs. I was acting under the
direct supervision of Mr. Caswell and I was to report directly to Mr. Caswell.
e. I never was able to even start my assignment to perform the post
repair appraisal of Mr. Handwerk's car. I was denied access to the car by Haury's
Body Shop where Mr. Handwerk' s car was stored. Because I was denied access to Mr.
Handwerk's car at Haury's, I never had an opportunity to view Mr. Handwerk's car,
and, because of that, I never inspected Mr. Handwerk's car. As it turned out, I was
never able to even begin work on appraising the post repair damage, if any, to Mr.
Handwerk' s car that may have needed additional work, and I was never able to even
attempt to come to an agreement with Mr. Handwerk's independent appraiser, Mr.
Harber.
5. The.se are the facts of what actually took place in the Handwerk Claim. I did
not do any of the things that the Insurance Commissioner alleges I did for one simple
reason: I never had a chance to look at or inspect Mr. Handwerk's car. Although I
tried to get into Haury's Body Shop to view and inspect Mr. Handwerk's car, and
although I did exchange email messages with Mr. Harber and Mr. Handwerk to try to
obtain access to the car, the fact is 1 never did get that opportunity.
6. Therefore, because I could not even start my appraisal assignment for
GEICO and Craig Caswell, I was not able to attempt to come to an agreement with Mr.
Harber on the cost of the additional repairs. And, I certainly did not contact Mr.
Handwerk for the purpose of coming to an agreement, as the Insurance Commissioner
alleges. I contacted Mr. Handwerk only in an effort to see his car.
6. In the end, facts are that I never engaged in any activity related to the
Handwerk Claim that GEICO had authorized me to do. I did not inspect Mr.
DECLARATION OF Michael R. Marinelli_- 3
--:::::: KH.BGER BEEGHLY, l'LLC =-999 Third Ave, Suite 3000
Seattle, WA 98104-4088 (206)829-2708
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Handwerk's car post-repair. I did not estimate or confirm if there were any defects in
the repairs to Mr. Handwerk's car. I did not prepare a damage estimate. And, I did not .
attempt to get an agreement with Mr. Harber on the scope of necessary repairs. I did
not do any of those activities because I could not get into Haury' s shop to view Mr.
Handwerk's car.
7. It is my understanding and belief that eventually GEICO and Mr.
Handwerk's insurer worked out the final settlement cost. I was not involved in the
final resolution of Mr. Handwerk's claim.. But, one thing is c.ertain throughout my
involvement in the Handwerk Claim and that is that, at all times, I was working strictly
according to the instructions and directly under the supervision of Mr. Craig Caswell,
GEICO's claims supervisor on the Handwerk Claim.
This Declaration, consisting of four pages, is dated and signed in
!J,f.LJ,e.vi<.e.. £.iJA.this 1t> ~: day of Jaouary 2017.
DECLARATION OF Michael R. Marinelli - 4
Michael R. Marinelli
--:::: KREGER B!lHGH.LY, l'LLC- 999
Third Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708
E:XHIBIT3
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THE STATE OF WASHINGTON OFFICE OF THE INSURANCE COMMISSIONER
7 In the Matter of ORDER NO. 16-0155
g Michael R. Marinelli Declaration of Philip White
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And
Insurance Appraisal Services,
Respondents,
I, Philip White, under penalty of perjury under the laws of the State of
Washington, do hereby make this Declaration as my own statement freely given as
follows:
1. I am over the age of eighteen and am competent to testify to the matters
presented herein.
2. I have been employed as an auto insurance carrier claims adjuster in the
State of Washington and have engaged in the business of claims adjusting and
insurance claims consulting for 25 years.
3. Over the course of my career as an insmauce claims adjuster and claims
consultant, I have directly adjusted auto liability aud physical damage claims for three
DECLARATION OF Phillip White- I
-=.KREGER BEEGHLY. l'LLC =--999 Third Ave, Suite 3000 Seattle, WA 98104-4088
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Washington-admitted auto insurance carriers and directly adjusted self-insured physical
damage auto claims for a Washington-based national corporate fleet owner.
4. As a regular part of my work as an insurance adjuster, I would have the
opportunity and task of adjusting and settling claims under the provisions of the
appraisal clause found in vhtually all personal lines insurance policies. The appraisal
clause of a standard insurance policy can be invoked by the insured and their insurance
company in accordance with policy provisions when efforts to resolve differences
between the insurance company and the insured as to the extent and value of the
claimed loss failed and independent appraisers are typically engaged to help resolve
those differences.
5. In my experience, the appraisal clause can be invoked as a means of settling
a disputed claim at any time in the claims adjusting process, unless the insurance policy
contains specific provisions about the process and timing for requesting that the claim
is to be settled under the appraisal clause.
6. I have not seen and I am not aware of any insurance policy that includes a
specific definition of the term "fully adjusted claim." In my experience, a claim is fully
adjusted when the insurance adjuster has completed their investigation of all claims for
the incident or occurrence giving rise to tlie claim(s), evaluated the liability and
damages of the claim(s) on tlieir merits and .offered a payment (or denial) of the
claim(s) presented under the policy. Unless the applicable insurance policy contains a
definition of"fully adjusted claim," that te1m is subject to several interpretations that
can vary from company to company and individual to individual.
7. In my experience, there is no insurance industry or public policy use of the
term "fully adjusted claim."
DECLARATION OF Phillip White- 2
-= KHEGEH BEEGHLY. PLLC :::-999 Third Ave, Suite 3000 Seattle, WA 98 l 04-4088
(206)829-2708
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This Declaration, consisting of three pages is dated and signed in Seattle,
Washington this 27111 day of January 2017.
DECLARATION OF Phillip White_- 3
Philip V. White
--=: KHEGl:m BEEGHLY. PLLC :;::--999 Third Ave, Suite 3000 Seattle, WA 98104-4088
(206)829-2708