Archive

From the desk of John Kreutzer: Once a lawsuit is filed, the parties engage in discovery, where they exchange records and documents that are relevant to their respective claims and defenses. Recently, Washington’s legislature passed a law to prevent defendants from being able to obtain a plaintiff’s medical records related to the plaintiff’s noneconomic damages claim in suit brought under the Washington Law Against Discrimination (“WLAD”). Read on for a discussion on the new law that was set to go into effect on June 7, 2018.

Content Types Archives: Case Updates

Washington Legislative Update: Washington’s New Law Restricts Access to Medical Records in Discrimination Suits

From the desk of John Kreutzer: Once a lawsuit is filed, the parties engage in discovery, where they exchange records and documents that are relevant to their respective claims and defenses. Recently, Washington’s legislature passed a law to prevent defendants from being able to obtain a plaintiff’s medical records related to the plaintiff’s noneconomic damages claim in suit brought under the Washington Law Against Discrimination (“WLAD”). Read on for a discussion on the new law that went into effect on June 7, 2018.

SB 6027 was first introduced on December 5, 2017. After being passed by both the House and the Senate, the bill was delivered to Washington’s Governor who signed the bill on March 15, 2018. The law provides that a plaintiff “does not place his or her health at issue or waive any health care privilege,” by seeking noneconomic damages in a discrimination suit under the WLAD.

The bill does provide three exceptions to this new rule. The first exception is applicable if the plaintiff alleges to suffer from a “specific diagnosable physical or psychiatric injury,” such as PTSD. The second exception applies if the plaintiff wishes to rely on the medial records or retains a health care provider or expert to testify. The third exception applies if the plaintiff is alleging discrimination on the basis of the disability or a failure to accommodate the disability.

Even when one of the three exceptions is found to apply, SB 6027 continues to restrict the defendant’s access to those records with two limitations. The first limitation provides that access to the records is limited to records that were either created or occurred in the time period that begins “two years before the first alleged unlawful act and [ends] on the last date for which the plaintiff seeks damages (absent exceptional circumstances).” The second...

To View the Full Resource, Subscribe or Log In
Continue Reading 0
Attorney Profile Case Update Template -2016 Kyle

Washington Case Law Update: Wrongful Death Claim Invalid After Survivorship Claim Against Same Defendants

From the desk of Kyle D. Riley: Washington’s wrongful death statute creates a cause of action for the beneficiaries of the deceased.  Where the deceased initially brought a personal injury claim against the defendant, will the deceased’s beneficiaries and estate be barred from bringing a subsequent wrongful death claim against the defendant?  Read on to find out.

Claims Pointer: Prior to her death, the decedent brought claims against the defendant for personal injuries related to asbestos exposure.  The decedent died during trial and the case was amended to be a survivorship action.  After her death, the personal representative of the decedent’s estate brought a wrongful death suit, naming the defendant who was named in the previous lawsuit and additional defendants who were not named in the initial lawsuit.  The Washington Court of Appeals held that the wrongful death claims were barred against the defendant named in the decedent’s previous suit, but that the wrongful death claims were not barred against the other defendants.

Brandes v. Brand Insulations, Inc., et. al., No. 74554-9-I, Washington Court of Appeals Div. I (May 29, 2018) (unpublished).

After being diagnosed with mesothelioma, Barbara Brandes (“Barbara”) brought suit for personal injuries against Brand Insulations Inc. (“Brand”) and other defendants.  In her complaint, Barbara alleged that Brand was negligent in selling and installing asbestos productions at a refinery where her husband had worked, resulting in her exposure to “take home” asbestos fibers.  On the second day of trial, Barbara settled with all defendants except for Brand.  Thirteen days into trial, Barbara died.  The court allowed Barbara’s daughter, Ramona Brandes (“Ramona”) to be appointed as personal representative of Barbara’s estate and the trial continued as a survivorship action. ...

To View the Full Resource, Subscribe or Log In
Continue Reading 0

Attorney Profile Case Update Template - Josh

Washington Case Law Update: Court Finds Issues of Material Fact on Reasonableness of Insurer’s Handling of UIM Claim

From the Desk of Joshua P. Hayward: Numerous statutes in Washington require insurers to act in good faith when dealing with the insured’s UIM and PIP claims. Among other requirements, acting in good faith requires an insurer to act “reasonably.” In the event that the insurer’s expert determines that the insured’s medical condition was not caused by the accident but the insured’s expert determined that it was, does the insurer act in bad faith by relying solely on the opinion of its own expert?

Claims Pointer: In this case arising out of a car accident, the insured sought UIM benefits claiming that the car accident caused her dermatomyositis condition. The insured’s medical expert determined that the dermatomyositis condition was caused by the car accident, while the insurer’s medical expert determine that it was “more likely than not” that the car accident did not cause the insured’s condition. The Washington Court of Appeals determined that there was an issue of material fact as to whether it was reasonable for the insurer to rely solely on the opinion of its own medical expert when there was other credible evidence related to causation.

Leahy v. State Farm, 76272-9-I, Washington Court of Appeals Div. I (May 21, 2018).

Shannon Leahy (“Leahy”) suffered soft tissue injuries in a car accident. Leahy first sought PIP benefits and later sought UIM benefits from her insurer, State Farm Mutual Automobile Insurance Company (“State Farm”). After the accident, Leahy was also diagnosed with dermatomyositis (“DM”). Leahy alleged that the condition was triggered or caused by the accident. State Farm’s adjuster requested Leahy’s medical treatment records for three years prior to the accident, none of which mentioned Leahy’s dermatomyositis condition. Leahy provided State Farm with a report from her rheumatologist,...

To View the Full Resource, Subscribe or Log In
Continue Reading 0

Oregon Appellate Update: Oregon Supreme Court Grants Review in Two Important Cases – Tort Cap and Dram Shop

From the Desk of Jeff Eberhard: On November 1, 2017, the Oregon Court of Appeals issued two separate decisions, both of which have a significant impact on the insurance industry and defense of claims.  Recently, the Oregon Supreme Court issued orders accepting review of the Oregon Court of Appeals’ decisions in both cases.  Read on to learn more about each of these two cases.

Noneconomic Damages Tort Cap of $500,000 – Vasquez v. Double Press Mfg., 288 Or App 503 (2017).

In this case, the Oregon Court of Appeals held that ORS 31.710(1), which provides a $500,000 noneconomic damages cap in bodily injury claims, violates the remedy clause in Article I, section 10 of the Oregon Constitution. [See our prior Case Update on Vasquez here].  In that case, after considering comparative fault, the plaintiff was awarded $6,199,090, composed of $1,339,090 in economic damages and $4,860,000 in non-economic damages.  The court determined that applying the $500,000 noneconomic damages cap would render plaintiff with a “paltry fraction” of the damages he sustained and a remedy that that is not “substantial,” even though plaintiff was set to recover $1,839,090 of the total $6,199,090 judgment.  Following the court’s ruling, the defendants along with amicus filed a petition for review with the Oregon Supreme Court.  On March 22, 2018, the Oregon Supreme Court accepted review of the Oregon Court of Appeals’ decision and is set to hear oral arguments on September 14, 2018.

Dram Shop – Claims by Intoxicated Patron – Schutz v. La Costita III, Inc., 288 Or App 476 (2017).

In this case, the Oregon Court of Appeals held that ORS 471.565(1), which prevents a plaintiff who voluntarily consumed alcohol from bringing a claim against the alcohol provider, violates the remedy clause in Article I, section 10 of the Oregon Constitution.  [See our prior Case...

To View the Full Resource, Subscribe or Log In
Continue Reading 0
Attorney Profile Case Update Template -2016 Kyle

Washington Case Law Update: Court Rules that Implied Warranty of Habitability Does Not Extend to Tenant’s Guest

From the desk of Kyle D. Riley: Under common law in Washington, landowners may be liable for failure to maintain a safe and habitable premises.  But where the landlord owns a house that is occupied by a tenant, does the landlord owe a duty to exercise reasonable care so to ensure the deck does not pose an unreasonable risk of harm to the tenant’s guests? Read on to find out.

Claims Pointer: In this premises liability suit, the Washington Court of Appeals determined that because the deck was not a common area, the landlord was not deemed to be a possessor, and as such, did not owe the tenant’s guest a duty to maintain the deck in a reasonably safe condition.  The court also held that the implied warranty of habitability extends only to tenants and has not been adopted in the context of the tenant’s guests and other entrants.  This case identifies a critical difference between the duty a landlord owes to tenants and the duty they owe to guests of tenants.

Just as Donna Phillips (hereinafter “Plaintiff”) left her boyfriend’s home, she realized that she had forgotten her cell phone.  Plaintiff walked to the back of the house but when she placed her foot on the step leading to the deck, the step broke, causing her leg to fall through the broken step.  Kathleen Greco (hereinafter “Defendant”) owned the house, and rented the main house to Plaintiff’s boyfriend and his roommate.  The house also contained a mother-in-law unit, which was rented by different tenants under a separate lease agreement.  Plaintiff’s boyfriend and his roommate had exclusive access to the deck, and tenants of the mother-in-law unit did not have access to the deck.  As a result of injuries stemming from the fall, Plaintiff filed suit against the landlord.  Defendant responded with a motion for summary judgment, which the trial court granted.  Plaintiff...

To View the Full Resource, Subscribe or Log In
Continue Reading 0

Attorney Profile Case Update Template - Josh

Oregon Case Law Update: PIP Application Form Inadmissible in Suit by Insured Against Tortfeasor

From the Desk of Joshua P. Hayward: Insureds who submit a personal injury protection (“PIP”) claim are often asked by their insurer to fill out a PIP application form.  When the insured later sues the defendant who was allegedly at fault for the accident, can the PIP application be admitted into evidence at trial? Read on to find out.

Claims Pointer: Following an incident where the defendant drove over and fractured a minor’s leg, a dispute arose as to whether the PIP application could be admitted into evidence.  The Washington Court of Appeals held that the PIP application was protected under the work product doctrine, and further determined that admitting the PIP application was prejudicial.  This case is important to adjusters who regularly deal with PIP claims, applications, and litigation.

Figueroa v Mariscal, 34671-4-III, Washington Court of Appeals Div. III (April 3, 2018)

In this case, Defendant Consuelo Prieto Marisca (“Defendant”) was driving her minivan down the road when she heard a noise and felt a slight bump underneath her tires.  Defendant pulled her vehicle over and saw Plaintiff Monica Diaz Barriga Figueroa’s (“Plaintiff”) minor son lying on the road next to his bicycle.  The child was taken to the hospital where imaging results revealed a fractured leg.

A few days later, Plaintiff contacted an attorney for assistance in making an insurance claim to her insurer for her son’s injuries.  Because Plaintiff was a monolingual Spanish speaker, a legal assistant who spoke Spanish assisted Plaintiff.  The assistant first asked Plaintiff to sign a blank PIP application form.  After Plaintiff signed the form, the assistant filled out the form by using facts in the police report to describe the accident – the police report stated that Plaintiff’s child was struck after he drove his bicycle into the road from a blind spot in...

To View the Full Resource, Subscribe or Log In
Continue Reading 0


Attorney Profile Case Update Template -2016 Kyle

Washington Case Law Update: Washington Legislature Expands Mandatory Civil Arbitration to $100,000 Claims

From the desk of Kyle D. Riley: Currently, in Washington, civil cases with claims not exceeding $50,000 are subject to mandatory arbitration.  However, Washington’s legislature recently passed a bill that increases the claim limit from $50,000 to $100,000.  The bill was then signed by Washington’s Governor on March 13, 2018.  Read on for a discussion on the new law that is set to govern civil cases filed in Washington on or after September 1, 2018.

Claims Pointer: Effective September 1, 2018, the new legislation on mandatory arbitration will have a sizable impact on Washington’s civil litigation process.  Adjusters should be aware of the new law as it will result in a larger scope of cases being subject to mandatory arbitration.

HB 1128 contains numerous amendments and changes to existing laws.  Two significant changes are that (1) claims up to $100,000 will be subject to Washington’s mandatory arbitration program, and (2) a request for a trial de novo appealing the arbitration award must be signed by the client.  It is important to keep in mind that HB 1128 will only affect cases that are filed on or after September 1, 2018.

One of the more obvious consequences of the new arbitration rule is that the $100,000 claim limit will increase the number of cases subject to mandatory arbitration.  There are several reasons why this change will be disadvantageous to defendant.  First, arbitration awards, especially in King County and surrounding counties tend to be more generous than jury awards.  One of the reasons that arbitration awards tend to vary from jury awards is that the evidentiary rules in arbitrations are much relaxed.  Second, cases in arbitration move on an accelerated timeline with limited discovery and relaxed evidentiary rules.  Parties can serve limited discovery requests and take depositions.  Parties must file a motion...

To View the Full Resource, Subscribe or Log In
Continue Reading 0

Attorney Profile Case Update Template - Josh

Washington Case Law Update: Statutory Costs Included When Comparing Arbitration Award with Trial Judgment

From the Desk of Joshua P. Hayward: Following arbitration, if either party is not satisfied with the arbitration award, that party is entitled to request a trial.  If the party that requested trial fails to improve their position at trial, the opposing party is entitled to reasonable attorney fees incurred in litigating the case through trial.  When determining whether a party improved their position at trial, are statutory costs included in the computation? Read on to find out.

Claims Pointer: In this case arising out of a car accident, the Washington Supreme Court determined that statutory costs are to be included when comparing the arbitration award with the trial award.  This case is important to consider when deciding whether or not to appeal an arbitration award.  One key point to consider is that the statutory costs after trial are typically a few thousand dollars more than those awarded after the mandatory arbitration.  This effectively means that a defendant will typically need to obtain a damages award a few thousand dollars larger at trial to be considered to have improved their position.  Conversely, using this logic, a plaintiff can request a trial de novo, obtain a damages award equal to or slightly less than the arbitration award, and still be considered to have improved their position.

Bearden v. McGill, 94320-6, Washington Supreme Court (April 12, 2018)

James Bearden (“Plaintiff”) sued Dolphus McGill (“Defendant”) for damages caused by a motor vehicle accident.  At arbitration, Plaintiff was awarded $44,000 in damages, and $1,187 in statutory costs as the prevailing party under RCW 4.84.010, for a total arbitration award of $45,187.  Defendant requested trial, and following the trial, the jury awarded Plaintiff $42,500 in damages and $3,296 in statutory costs, for a total judgment of $45,796.  In other words, Plaintiff...

To View the Full Resource, Subscribe or Log In
Continue Reading 0

Oregon Case Law Update: Patron Not Prohibited from Filing Third Party Complaint Against Alcohol Provider

From the Desk of Jeff Eberhard:  A few months ago, the Oregon Court of Appeals held that ORS 471.565(1), which prevents a patron who voluntarily consumed alcohol from bringing suit against the alcohol provider, to be unconstitutional in the context of a social host. [See our prior Case Update on Schutz here].  In this case, the Oregon Court of Appeals ruled that ORS 471.565(1) does not prohibit an intoxicated patron from filing a third-party complaint against the alcohol provider in a lawsuit brought by the injured plaintiff against the patron.

Claims Pointer: In this case arising out of injuries suffered by a plaintiff when an intoxicated patron crashed in the plaintiff’s home, the Oregon Court of Appeals was tasked with deciding whether ORS 471.565(1) prevents the intoxicated patron from bringing the alcohol provider into the lawsuit by a third-party complaint.  The court looked to the plain text of the statute and the legislative history underlying the statute, and determined that the legislature would not have intended for ORS 471.565(1) to prevent a patron from impleading the provider.  Because the court was able to resolve the case on a “subconstitutional level,” it did not consider whether ORS 471.565(1) was constitutional in the context of a third-party claim.

Wilda v. Roe, 290 Or App 599 (2018)

Steven Roe (“Roe”) went out and visited a few taverns, where he consumed alcohol until he became intoxicated.  While driving, Roe fell asleep and crashed into the house where Charles Wilda (“Plaintiff”) was asleep in his bed.  Plaintiff filed suit against Roe, who admitted to the negligence and filed a third-party complaint against B & B Wachter, Inc., dba Round Butte Inn (“Round Butte”) and L & K Semm, Inc., dba Desert Inn Bar & Grill, Inc. (“Desert Inn”) (collectively “the taverns”) for serving him while he was intoxicated. ...

To View the Full Resource, Subscribe or Log In
Continue Reading 0

Attorney Profile Case Update Template - Josh

From the Desk of Joshua P. HaywardWhen insurance adjusters allegedly act in bad faith or engage in unfair or deceptive acts, the insurance company can be exposed to bad faith claims or Consumer Protection Act (“CPA”) violation claims.  Can the individual insurance adjuster also be liable for bad faith or CPA claims?  Read on to find out.

Claims Pointer: In this case arising out of a motorcycle vs. vehicle accident, the Washington Court of Appeals was asked to determine whether the insured could maintain a bad faith claim and CPA claim against the individual adjuster.  The court determined that insurance adjusters may be liable for bad faith and CPA violations.  The court’s holding is a drastic departure from previous Washington court decisions, and going forward, adjusters should be aware that their conduct and actions may expose them to individual liability.

Keodalah v. Allstate Insurance Co., 75731-8-I, Washington Court of Appeals Div. I (March 26, 2018).

As a preliminary matter, appellate courts review a trial court’s dismissal in this type of proceedings by assuming that the allegations contained in the plaintiff’s complaint are true and accurate.  This means that the facts presented by the court in this ruling and set forth below are likely to be disputed by the defendants.  At this point, the following is only an allegation made by the plaintiff, and no factual determination has been made.

This cases arises out of a motor vehicle accident involving Moun Keodalah (“the insured”) and an uninsured motorcyclist.  The insured was crossing an intersection when he was struck by the motorcyclist.  The motorcyclist was killed in the collision, and the insured suffered injuries.  The Seattle Police Department’s (“SDP”) investigation found that “the motorcyclist was traveling between 70 and 74 m.p.h. in a 30 m.p.h. zone.”  SDP also determined that the insured was not on his cell phone.  An accident reconstruction firm hired by...

To View the Full Resource, Subscribe or Log In
Continue Reading 0