Tyson & Mendes Secures Another Victory at The Division I Court of Appeals in Boyle V. Leech, Case No. 79069-2-I

Author: Seattle Office

Guest Editor: Alla Policastro

March 5, 2019 11:20am

For the second time in as many months, Team Leader Kyle Jones of Tyson & Mendes successfully argued an important case at the Division I Court of Appeals in Boyle v. Leech.  In the underlying suit, the Boyles filed a nuisance lawsuit against their neighbors, alleging the “toxic” staining sap and debris that fell from the Leeches’ coastal redwood tree constituted actionable nuisance.  Defendants moved for dismissal, arguing that because the subject tree’s limbs did not extend over the property line, and were in fact nearly 70 feet from Plaintiff’s property, plaintiff could not meet the requirements to sustain a nuisance action.  The trial court agreed and dismissed plaintiffs’ suit.  Plaintiff appealed.

Appellate Decisions to Know When Defending UIM Claims in Washington

Author: Nathan Furman

Guest Editor: Tiffany Rouhi

March 4, 2019 9:00am

In Finney v. Farmers Insurance Co., 21 Wn. App. 601, 586 P.2d 519 (1978), aff’d, 92 Wn.2d 748 (1979), Division Three of the Washington State Court of Appeals held that a UIM insurer is bound by the findings and judgment from the insured’s lawsuit against the tortfeasor (i.e., the underinsured motorist) if the insurer is kept apprised of the suit but fails to intervene.

Your Civic Duty: Minimum Wage Payments for Jury Service in Washington State

Author: Jenny Silverstein

Guest Editor: Alla Policastro

March 4, 2019 9:00am

I have been an attorney for almost ten years and have done my fair share of trial preparation and helping attorneys pick a jury. I also take my civic duty seriously and report for jury duty when called. I have noticed that a high percentage of those called have tried to excuse themselves for hardship because they cannot afford to miss work to sit on a jury. Those that usually can sit on a jury are those who are retired and living on a fixed income or those who have a job that allows them to serve on a jury without missing work (i.e.: government employees).

Coverage Trends: WA Band NRA’s Self-defense Policies

Author: Michaela Jester

Guest Editor: Brittany Torrence

February 4, 2019 11:00am

In January 2019, Washington became the second state to deem the National Rifle Association’s (“NRA”) Carry Guard Insurance Program illegal. Designed to attract its primary market of concealed-carry permit holders, the NRA’s policies offer gun owners personal liability protection against legal costs should the owner become involved in a shooting. While advertised as protection for owners who discharge their guns in acts of self-defense, the policies effectively provide coverage for actions originating with criminal intent. For this reason, and based upon the prohibition of the protection of criminal activity through insurance coverage, Insurance Commissioner Michael Kreidler determined the NRA’s policies to run counter to Washington law.

Ambiguous UIM Policy Provisions May Have Unintended Consequences in Washington

Author: David Reeve

Guest Editor: Brittany Torrence

February 4, 2019 11:00am

Kalles v. State Farm Mutual Automobile Ins. Co. (Div. II, 2019) involved an action for, among other things, UIM property damage benefits for loss of use, i.e., rental car costs, while the insured’s vehicle was being repaired. Although the insured’s UIM policy language did not expressly state that loss of use damages would be covered, the Court of Appeals held that (1) because an average person could have interpreted the policy language to include those benefits, the language was, at best, ambiguous; and (2) because ambiguous policy language must be construed in favor of an insured, the insured was ultimately entitled to said benefits.

Too Many Individual Factual Issues by Prospective Members of a Class Action Will Prevent Class Certification in Washington

Author: Ben Davis

Guest Editor: Brittany Torrence

February 4, 2019 11:00am

In a typical class action lawsuit, a plaintiff sues a defendant, or multiple defendants, on behalf of a group, or class, of similarly situated parties.  Class actions involve a large number of aggrieved parties who have sustained common injuries by the same defendant(s).  Class actions serve a dual purpose by providing a procedure for claims which may seem minimal when viewed individually but are more significant when viewed as a group.  On the other hand, class actions shelter defendants from multiple lawsuits on the same or similar issues.

Tyson & Mendes Outmaneuvers Plaintiff Who Attempted to Extend the Statute of Limitations by Re-filing Suit Against a Foreign National in Federal Court

Author: Bryan D. Scholnick

Guest Editor: Alexander Nguyen

January 7, 2019 12:12pm

Tyson & Mendes’ Seattle office obtained a dismissal with prejudice of an insured from the Federal Court by following a legal strategy set in motion when a lawsuit was first filed in state court.  Plaintiff was injured while riding a bus when a car turned left in front of the bus causing the vehicles to collide.  Plaintiff incurred substantial medical treatment following the accident.  He filed suit in Washington State Court against the car’s driver, who was a foreign national.  Plaintiff sought service of the foreign national via Washington’s statute allowing for service of a non-state-resident via the Secretary of State.  However, unbeknownst to the plaintiff’s attorney, service via the Secretary of State was not effective as the Washington Appellate Court, in Larson v. Yoon, found that service of a foreign national had to be effected via the Hague Service Convention procedure.  351 P.3d 167, 172 (Wash. Div. 1, 2015).  Given this ruling, and that the suit was filed a year before the statute of limitation expired, an Answer was timely filed asserting the affirmative defenses of lack of service and statute of limitations.

Mandating Coverage for Infertility Treatment – What Does the Future Hold for Providers in Washington?

Author: Michaela Jester

Guest Editor: Alexander Nguyen

January 7, 2019 9:00am

Lifting the Veil on Infertility

As American public figures have begun to advocate for infertility treatment by sharing their personal struggles and successes, realizing dreams of parenthood with the help of In Vitro Fertilization (“IVF”) and other assisted reproductive technology (“ART”) has begun to shed its cultural label as a “taboo” topic of conversation. Perhaps refreshing the conversation by bringing it to center stage, former First Lady Michelle Obama spoke candidly in a November 2018 interview about the couple’s heartbreaking miscarriage and the crucial role of IVF in the conception of their two daughters. In addition to Mrs. Obama, similar revelations by Jimmy Fallon, Mark Zuckerberg, and Celine Dion, brings hope by strengthening relatability between the many people challenged by infertility. As a result of this public discourse, more people are understanding how common infertility is and the solidarity behind seeking treatment for the condition. With the advancement of medical technology, the obstacle is not necessarily the existence of effective treatment, but rather the hindered accessibility of treatment due to the lack of coverage for such procedures.

Court Rules Delay in Accepting Defense Constitutes Bad Faith

Author: Brian Johnson

Guest Editor: Tiffany Rouhi

January 7, 2019 9:00am

Summary of the Ruling

A federal district court in Washington ruled a general contractor’s insurer acted in bad faith when it waited for more than one year to agree to defend it in an underlying construction defect action. In Rushforth Construction Co. v. Wesco Insurance Co. et al., Case No. 17-cv-1063, (W.D. Wash. Apr. 3, 2018), Judge John Coughenour for the Western District of Washington said reasonable minds could not disagree that the delay on the part of the insurer was “frivolous and unfounded.”  The Seattle judge granted partial summary judgement in favor of the general contractor, Rushforth.

Ninth Circuit Certifies Question of Whether “Obesity” Should Be A Protected Disability Under Federal and Washington State Law

Author: Pamela Chalk

Guest Editor: Tiffany LeMelle

November 5, 2018 9:00am

Obesity in the Workplace: An Unclear Question

The Americans with Disabilities Act (“ADA”) (42 USC § 12101 et seq.) was enacted in 1990 to protect employment opportunities for qualified individuals with disabilities. Among other things, the ADA mandates the elimination of discrimination against employees due to disabilities when they are able to perform the essential functions of their jobs. (See, Zimmerman v. Oregon Dept. of Justice (9th Cir. 1999) 170 F3d 1169, 1172). Such discrimination can occur when an employer regards an employee as disabled.

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