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In 2015, a duck boat amphibious vehicle veered across several lanes of traffic in Seattle, crashing into a bus carrying foreign students, killing five. The families of some of those foreign students that were killed sought, but were unable, to file wrongful death claims against the duck boat operator. Elsewhere, parents of unmarried, adult children have been precluded from bringing wrongful death lawsuits.

Content Types Archives: Case Updates

Washington Statute Change: Washington Duck Boat Crash Leads to Wrongful Death Statute Change

From the desk of Tom McCurdyIn 2015, a duck boat amphibious vehicle veered across several lanes of traffic in Seattle, crashing into a bus carrying foreign students, killing five. The families of some of those foreign students that were killed sought, but were unable, to file wrongful death claims against the duck boat operator. Elsewhere, parents of unmarried, adult children have been precluded from bringing wrongful death lawsuits. What precluded these parents from bringing wrongful death claims? Would those families still be precluded from bringing those claims today? Read on to find out.

Since 1909, Washington’s wrongful death statute has had, among others, two threshold requirements for parents to be able to bring a wrongful death claim. First, parents of deceased children who wanted to bring a wrongful death lawsuit were required to be residents of the United States. Second, if the child was an adult, the parent was required to be economically dependent on the child. Both of these requirements have served to preclude parents from bringing wrongful death claims in Washington.

After several high profile, high exposure deaths—such as the duck boat accident—the legislature began the process of amending the statute. Their answer, Senate Bill 5163, was introduced on January 15, 2019. After being passed by both the House and the Senate, the bill was delivered to Washington’s Governor, who signed the bill on April 26, 2019. The law expands the ability of parents to file wrongful death lawsuits after their child dies.

First, SB 5163 does away with the residency requirement. Now, if a non-resident parent has a child who perishes in Washington, they are entitled to bring a wrongful death statute when they would have been prevented from doing so before. Second, SB 5163 expands the ability of parents of adult children to file wrongful death claims. Instead of...

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Oregon Case Update: Oregon Supreme Court Determines that the Noneconomic Damages Cap Does Not Apply in Any Case Involving Workers’ Compensation

From the Desk of Ryan McLellan: Oregon’s $500,000 noneconomic damages cap purports to limit the amount of noneconomic damages a plaintiff can recover. One purported exception, which has long been advocated for by plaintiff’s counsel in an attempt to avoid the cap, states that the cap is not applicable to cases “subject to” Oregon’s workers’ compensation benefits law. Does the exception really mean that any claim where an injured worker has received workers’ compensation benefits for an injury is not subject to the cap? Read on to find out.

Claims Pointer: Oregon’s Supreme Court has determined that Oregon’s $500,000 cap on noneconomic damages does not apply if the plaintiff has received workers’ compensation benefits for the injury at issue. Based on its expansive interpretation of the statutory cap, any lawsuit where the plaintiff received workers’ compensation benefits is no longer subject to the noneconomic damages cap. Previously, though the noneconomic damages cap stood on perilous constitutional ground, claims for wrongful death—including those arising from a workplace injury—were subject to the cap. This case ends that trend and means the damages in any wrongful death or significant injury case where workers’ compensation is involved is no longer limited by statute.

Vasquez v. Double Press Mfg., Inc., 364 Or 609 (Apr. 4, 2019).

Oregon’s $500,000 noneconomic damages cap is set out in ORS 31.710(1). It reads, in its entirety:

Except for claims subject to ORS 30.260 and ORS chapter 656, in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed...

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Attorney Profile Case Update Template -2016 Kyle

Washington Case Update: Unusual Injury Suffered While Riding a Roller Coaster Allows a Plaintiff to Utilize the Doctrine of Res Ipsa Loquitur

From the desk of Kyle D. Riley: In personal injury lawsuits alleging negligence, the plaintiff has the burden of proving that a defendant breached a duty owed to the plaintiff. In some cases, however, plaintiffs are able to utilize the legal doctrine of res ipsa loquitur when they are unable to supply evidence of any breach. The doctrine potentially relieves plaintiffs of the burden of proving a breach by showing that the injury would not have ordinarily occurred in the absence of negligence. What does a plaintiff need to prove to utilize res ipsa loquitur? Read on to find out.

Claims Pointer: While riding a roller coaster, a plaintiff struck her head on the safety harness and was diagnosed with a subdural hematoma requiring brain surgery. Plaintiff sued the operators and manufacturers of the roller coaster, alleging that her subdural hematoma was the result of some unspecified act of negligence on their behalf. However, plaintiff was unable to point to any specific act of negligence. Accordingly, she sought to utilize the doctrine of res ipsa loquitur, which would allow her to bring her suit to the jury without evidence of a specific act of negligence. After the trial court dismissed her lawsuit, finding that the doctrine was unavailable, the Washington Court of Appeals reversed. It held that, because a subdural hematoma is not the type of injury one would expect while riding a roller coaster, plaintiff was entitled to utilize the doctrine of res ipsa loquitur.

Brugh v. Fun-Tastic Rides, et al., Wash. Ct. App. No. 51055-3-II (Mar. 26, 2019).

While attending the Washington State Fair, Jodi Brugh (“Plaintiff”) rode a roller coaster that was operated by Fun-Tastic Rides Co.  During the last turn of the roller coaster—one that Plaintiff described as a “sudden and violent jolt”—she struck her head on both sides...

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Jeff Eberhard Managing Partner

Oregon Case Law Update: Disturbing Court of Appeals Decision Reversed – Oregon Supreme Court Reaffirms That Restaurants and Taverns Do Have Immunity For “First Party” Claims of Over-Service of Alcohol

From the Desk of Jeff Eberhard: In 2017, the Oregon Court of Appeals sent shockwaves through the hospitality industry when it held that a section of Oregon’s liquor liability statute was unconstitutional because it denied a severely injured, intoxicated driver a remedy for her injuries allegedly caused by a social host.  As expected, the Oregon Supreme Court accepted review.  My star senior counsel Jeremy Reeves and I submitted extensive amicus curiae briefing addressing the flaws in the court of appeals’ constitutional analysis and why the entire statute passes constitutional muster.  We expected that the Supreme Court would use the case to settle the issue of whether the court of appeals erred in holding the statute unconstitutional.  Did it? Read on to find out.

Claims Pointer: With potentially dramatic implications for any business that serves or sells alcohol, the Oregon Supreme Court reviewed the court of appeals’ opinion holding a portion of Oregon’s liquor liability statute unconstitutional.  Rather than explicitly addressing the constitutional issue, the Supreme Court simply affirmed the court of appeals’ ruling on other grounds.  Fortunately for the hospitality industry, this Supreme Court decision means that Oregon’s liquor liability statute continues to provide immunity for first-party claims for over-service.  However, this case potentially opens the door to claims against social hosts when operating in a dual function, such as operating as an employer and a social host.

Schutz v. La Costita III, Inc., et al., 364 Or 536 (Mar. 14, 2019).

We discussed the facts underlying this matter in our previous case update, which you can find in our knowledge center here.  In short, Ashley Schutz (“Schutz”) was seriously injured after...

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Oregon Case Law Update: Oregon Court of Appeals Reminds Litigants That Medical Bills Alone Do Not Prove That Their Treatment was Reasonable

From the desk of Brian S. Driscoll: In order to receive compensation for injuries, plaintiffs in negligent personal injury cases must prove their injuries and associated expenses were causally related to the alleged incident and reasonable in amount and cost. The plaintiff’s burden to prove these elements is often the central dispute in personal injury litigation. What if a plaintiff fails to produce any evidence at trial that his medical expenses were reasonable? Can the plaintiff still recover those medical expenses? Read on to find out.

Case Pointer: In this personal injury lawsuit arising from a stabbing, the defendant’s motion to strike plaintiff’s claim for medical expenses was denied at trial, even though plaintiff failed to produce any evidence that his medical expenses were reasonable. Citing century old case law, the Oregon Court of Appeals determined that the plaintiff’s failure to provide evidence of the reasonableness of his medical expenses meant that the trial court should have granted defendant’s motion to strike. Further finding that defendant made no judicial admission that plaintiff’s medical expenses were reasonable, the appeals court reversed and remanded to the trial court for further consideration.

Martinez v. Delgado-Galban, 296 Or App 659 (Mar. 8, 2019).

In a somewhat unique personal injury lawsuit, plaintiff was “cut by a knife wielded by defendant” and sustained injuries that required medical treatment consisting of three separate visits to an emergency room. Plaintiff filed a lawsuit alleging assault and battery and seeking compensation for pain and suffering as well as the expenses incurred from the three emergency room visits. At trial, plaintiff presented copies of the bills that he had been sent by the emergency room. Additionally, plaintiff called a medical expert witness to...

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Washington Case Law Update: Material Facts Available in the Public Domain Lead to Dismissal of Real Estate Buyer’s Lawsuit

From the desk of Smith Freed Eberhard: A basic component of real estate transactions is the seller’s obligation to disclose existing, known material facts of the property. A failure to properly disclose all such material facts can lead to lawsuits against any party required to make such disclosures, such as sellers and brokers, for negligent misrepresentation, intentional misrepresentation, and occasionally violations of Washington’s Consumer Protection Act. What if a buyer makes such a claim when the information allegedly concealed was in the public domain? Will the buyer still be able to assert claims for misrepresentation or violation of the CPA? Read on to find out.

Case Pointer: In this dispute between a buyer of commercial property and the seller/broker, the property at issue was under threat of public condemnation by a local government agency. The facts were disputed as to whether the seller and/or broker had actual knowledge that the condemnation was scheduled to occur, but despite the uncertainty, the property was approved to be condemned a few months after the sale closed. To avoid condemnation, the buyer sold the property to the local agency for a small profit. The buyer filed a lawsuit against the seller and their broker alleging misrepresentation. The Washington Court of Appeals determined that the information regarding the potential condemnation was readily available to the buyer at the time of the sale. For that reason, the buyer was unable to maintain his lawsuit and the case was dismissed.

AVH & BJ Holdings 2, LLC, v. LaClare Investments, LLC, et. al, Wash. Ct. App. No. 51001-4-II (unpublished).

AVH and BJ Holdings (collectively, the “buyers”) bought property sitting between two railroad tracks in Tacoma (the “Property”) from LaClare Investments, LLC (the “seller”). The sale was brokered by Johnson...

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Washington Case Law Update: Inconsistent Testimony Leads to Summary Judgment Against an Injured Tourist

From the desk of Tom McCurdy: Summary judgment is appropriate when a party is unable to provide enough evidence to establish the existence of an essential element of their case. Oftentimes, a party against whom summary judgment is sought will use a declaration to provide enough evidence of the elements of their case. What if a party’s declaration is contradicted by their earlier deposition testimony? Will they still be able to overcome summary judgment? Read on to find out.

Case Pointer: In this personal injury lawsuit, a tourist was injured when she allegedly tripped on a manhole cover in a crosswalk in Seattle. The city filed a motion for summary judgment, arguing that the plaintiff had failed to provide sufficient evidence to create a triable issue of fact as to whether she actually tripped on the manhole. The trial court granted the motion, finding that plaintiff’s self-serving declaration was inconsistent with her earlier testimony and, accordingly, could not be used to establish that she tripped on the manhole cover. The Washington Court of Appeals agreed, affirming the trial court’s disregard of her self-serving declaration due to her inconsistent testimony. Because plaintiff provided no other evidence to show that the manhole cover actually caused her fall, summary judgment was appropriate.

Barbara Arntz v. City of Seattle, Wash. Ct. of App., No. 77504-9-I (February 25, 2019) (unpublished).

In August of 2014, Barbara Arntz (“Plaintiff”), a German citizen, was injured when she tripped and fell in a crosswalk on her way to Pike Place Market in Seattle. About eight months later, she filed a lawsuit against the City of Seattle (the “City”) arguing that she had tripped and fallen because of a defective “sunken” manhole cover.
After depositions, the City filed a motion for summary judgment, arguing that Plaintiff had failed to present...

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Oregon Case Update: What Qualifies as an Excess Policy in the State of Oregon?

From the Desk of Ryan McLellan: Oregon law imposes certain minimal financial responsibility laws on providers of motor vehicle liability insurance. However, there are several types of insurance that are statutorily exempted from those minimum requirements. One exempted type of policy is an excess liability policy. How does an Oregon court determine whether a policy is properly classified as an excess policy? Read on to find out.

Claims Pointer: In this dispute between insurers, the Oregon Court of Appeals was required to identify the characteristics that make a liability policy an excess policy under Oregon law. In its opinion, the court of appeals rejects a test established by an Oregon federal district court and determines instead that it must look to the text and intention of the contracting parties to determine whether a liability policy is an excess policy. After establishing the correct test, the court determined that the defendant in this matter had indeed issued an excess liability policy and was accordingly not subject to Oregon’s minimum financial responsibility laws.

Oregon Mutual Ins. Co. v. Certain Underwriters, 295 Or App 790 (Jan. 30, 2019).

This case arose from of a dispute between two insurers who provided coverage for the same injury. RSVP-SCP of Clackamas County (RSVP) is an Oregon non-profit that arranges for volunteers to transport individuals to medical appointments. Schabert, a volunteer registered with RSVP, was tasked to pick up and transport Saint to a medical appointment. When Saint was entering Schabert’s vehicle, she slipped, fell, and suffered personal injuries. Saint settled with Schabert for $180,000. The first $100,000 of the settlement was paid by Oregon Mutual, Schabert’s primary automobile insurance policy. Lloyd’s of London, which provided a “volunteer excess auto liability” insurance policy for RSVP, paid the remaining $80,000 of the...

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Attorney Profile Case Update Template - Josh

Oregon Case Law Update: Oregon Court of Appeals Requires an Insurer to Indemnify its Insured for Intentional Timber Trespass Claim Despite an Exclusion for Intentional Acts

From the Desk of Joshua P. Hayward: Commercial general liability insurance policies issued in the state of Oregon typically include the duties to defend and indemnify. A common exclusion in these policies is an exclusion for intentional acts. If an insured is found liable for an intentional timber trespass, can the insurer rely on an intentional act exclusion for its refusal to indemnify? Read on to find out.

Case Pointer: In this dispute arising from an insurer’s refusal to defend and indemnify a timber trespass claim, the Oregon Court of Appeals affirmed the trial court’s determination that the insurer had a duty to defend and indemnify. Despite the fact that the insured was found liable for intentional timber trespass, the insurer was required to defend and indemnify the insured because the insured did not expressly intend to damage the trees and other potential exclusions were ambiguous. This case is a reminder that any ambiguity or uncertainty contained in a policy will be construed against the insurance company.

Bighorn Logging Corp. v. Truck Ins. Exchange, 295 Or App 819 (Jan. 30, 2019).

In 2012, Bighorn Logging Corporation (“Bighorn”) was engaged in an extensive logging project on property owned by Dr. Edney (“Edney Property”). To assist in its operation, Bighorn sought and obtained permission from Paul Ater to use trees on his property as rope anchors to assist in the logging operation. Mr. Ater agreed to specified terms, including that Bighorn would use only two to three trees and use a special anchoring technique that would not damage the trees. Following the operation, Mr. Ater alleged that Bighorn cut down or damaged 18 trees on his property.  He filed a timber trespass lawsuit against Bighorn. In Oregon, if a plaintiff can prove timber trespass, they are entitled...

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Matt Ukishima

Washington Case Law Update: Washington Court Of Appeals Reminds Insurers That Ambiguous Insurance Provisions Must Be Resolved In Favor Of the Insured

From the desk of Matthew G. Ukishima: In Washington, insurance companies denying coverage are consistently challenged over ambiguous provisions in policies they issue. When provisions are ambiguous, courts have ruled in favor of the insured. When an underinsured motorist policy (“UIM”) specifically states it will pay compensatory damages for property damage, is it reasonable for an insured purchasing the insurance to interpret compensatory damages to include damages for loss of use, including covering rental car fees? Read on to find out.

Case Pointer: In this case revolving around disputed coverage for the reimbursement of rental car fees, the Washington Court of Appeals determined that an insurance provision was subject to two reasonable interpretations and was ambiguous as a matter of law, thus, must be construed against the insurer. Accordingly, it reversed the trial court’s denial of the insured’s motion for partial summary judgment. This case should serve as a reminder that, if and when a policy provision is reasonably susceptible to two different meanings, accepting coverage may be the safest route to avoid potential bad faith claims.

Kalles v. State Farm Mutual Automobile Ins. Co., Wash. Ct. App. No. 50827-3-II (Jan 23, 2019).

In this matter, Harold Kalles (“Plaintiff”) owned a new Land Rover that was damaged in an accident by an uninsured motorist. Plaintiff had obtained an insurance policy through State Farm (“Defendant”) which provided uninsured and underinsured motorist coverage. Defendant accepted coverage and paid to repair Plaintiff’s Land Rover, but declined to pay the fees Plaintiff incurred in renting a car while the Land Rover was in the repair shop. Plaintiff filed suit, arguing that his UIM coverage included compensation for the loss of use of his vehicle, which would have...

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