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Clarification on Interpreting Wholeness of an Insured

Author: Michael Kutzner

Guest Editor: Chandra Roam

August 7, 2019 10:00am

The Washington Supreme Court granted review of Daniels v. State Farm Mutual Automobile Insurance Company, 96185-9 (2019). In this case, the court discusses whether first party insurer State Farm is required to reimburse its fault-free insureds for the full amount of deductibles, prior to any allocation of subrogation proceeds to the insurer.

When Does a Neighbor Dispute Rise to an Actionable Claim for Outrage?

Author: Bryan D. Scholnick

Guest Editor: Chandra Roam

August 7, 2019 10:00am

Good fences make good neighbors.  This is not one of those stories.  Division III of the Washington Court of Appeals found that a neighbor’s actions, which most would agree were childish and annoying, were sufficiently outrageous and extreme to rise to the level of an actionable tort.  The Court upheld the trial court’s award of $40,000 for the tort of outrage.

When Defending Subject to a Reservation of Rights, the Insurer and Defense Counsel Must Adhere to Certain Criteria

Author: Nathan Furman

Guest Editor: Jillian Stanley

July 1, 2019 10:00am

Under Washington law, “the duty of good faith of an insurance company defending under a reservation of rights [or “ROR”] includes an enhanced obligation of fairness toward its insured.” Tank v. State Farm, 105 Wn.2d 381, 387-88, 715 P.2d 1133 (1986) (emphasis added). The “[p]otential conflicts between the interests of insurer and insured, inherent in a [ROR] defense, underlie this enhanced obligation.” Id.

Grounding an Intentional Tort in Negligence

Author: Michael Kutzner

Guest Editor: Robert Bernstein

July 1, 2019 10:00am

The words “negligent” and “intentional” are contradictory. To maintain an action in negligence, the plaintiff must establish four essential elements: duty, breach, proximate cause, and harm. To maintain an intentional tort action, the plaintiff must establish the tort was intentional, i.e., volitional. One action is typically distinct from the other, and a claim will usually sound in one or the other. However, in Beltran-Serrano v. City…

Extending Work Product Protection – By Statute

Author: Michael Kutzner

Guest Editor: Salayha K. Ghoury

June 4, 2019 8:17am

Work product protections often involve a narrow scope in the underlying policies of CR 26(b)(4) (allowing broad discovery while maintaining certain restraints on bad faith, irrelevant, and privileged inquiries).  Statements made by an insured to an insurer following an accident, in light of parties and expectations of the parties, fall under work product protection. In Barriga Figueroa v. Prieto Mariscal, — P.3d —-, 2019 WL 2220288 (2019), the Supreme Court of Washington held work product protections apply where the insured has gained the status of insured by statute, rather than by contract.

Arguing the Relevance of the BAC of a Plaintiff Who Admits Intoxication

Author: Mark Bolin

April 1, 2019 1:23pm

Gerlach v. The Cove Apartments, LLC, et al., Wa. Sup. Ct., No. 77179-5-1 (pub. Mar. 18, 2019)

The Washington Supreme Court recently reversed a judgment in favor of a plaintiff who had succeeded in excluding evidence her blood alcohol content (BAC) was .238 when she fell off the balcony of her friend’s apartment. The trial court had held the evidence was more prejudicial than probative despite the apartment complex’s reliance on a voluntary intoxication affirmative defense because plaintiff admitted being intoxicated on the night in question. However, the Washington Supreme Court held the trial court erred because while plaintiff’s BAC was not relevant to show she was intoxicated, it was relevant to show the effect her intoxication had on her actions.

Does Washington State have a Seat Belt Defense?

Author: Doug Baier

Guest Editor: Christopher Schon

April 1, 2019 12:51pm

Seat Belt Law RCW 46.61.688

In Washington State, state statute 46.61.688 requires the use of safety belts. According to the statute, “every person sixteen years of age or older operating or riding in a motor vehicle shall wear the safety belt assembly in a properly adjusted and securely fastened manner.”[1] Furthermore, no person may operate a motor vehicle unless all child passengers under the age of sixteen years are either (1) earing a safety belt assembly or (2) are securely fastened into an approved child restraint device.[2] A person who violates this section shall be issued a notice of traffic infraction under chapter 46.63 RCW.[3] If there is a finding a person committed this infraction, it shall be contained in the driver’s abstract but shall not be available to insurance companies or employers.[4]

Washington’s Contractual Mandatory Arbitration: Occasionally, the Trail of the Case Leads to Trial

Author: Michael Kutzner

Guest Editor: Christopher Schon

April 1, 2019 12:49pm

Is Mandatory Arbitration favorable or unfavorable for defense attorneys? Harmful or helpful? Dreaded or demanded? It depends. Contractual constraints, or lack thereof, and missed or overlooked opportunity may dictate and preclude choice. The Washington Court of Appeals analyzes these parameters in Lee v. Evergreen Hospital Medical Center, 434 P.3d 1071 (2019).

Appellate Decisions to Know When Defending UIM Claims in Washington

Author: Nathan Furman

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.

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.

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

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…

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

Author: Michaela Jester

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

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.

Washington Division I’s Recent Determination on the Scope of Discovery in Bad Faith Claims and its Influence on Established Precedent Regarding Claim File Protection

Author: Brittany Torrence

Guest Editor: Catie R. Johnson

October 1, 2018 10:00am

Generally, attorney-client privilege applies to communications and advice between an attorney and client and extends to documents which contain a privileged communication. Wash. Rev. Code Ann. § 5.60.060(2)(a). But, when an insured driver brings a bad faith claim against his/her insurance provider, the insured must show the insurer’s breach of the insurance contract was unreasonable, frivolous, or unfounded. To do so, insured drivers insist on access to their claim files. Currently, Washington courts are warry to determine a bright line on claim files and their protection under work-product or attorney-client privilege, but continue to compound case law addressing the issue.

Preparing for What is to Come: Washington raises Mandatory Arbitration limits to $100,000 starting this Fall!

Author: Brittany Torrence

Guest Editor: Jessica Heppenstall

August 6, 2018 9:00am

Generally, in Washington State, civil cases involving claims less than $50,000 are referred into the court-sponsored “mandatory” arbitration program (MAR). Many cases are already referred to MAR, as research indicates the average bodily injury claim is approximately $15,000, plus property damages and pain and suffering. As such, cases alleging more than $50,000 are not MAR eligible. However, Washington’s legislature has just passed House Bill 1128[1], to be in effect on September 1, 2018, increasing the limit from $50,000 to $100,000. When the new law is effectuated, almost every case will be referable to MAR. For instance, currently, if a plaintiff alleges over $50,000 in bodily injury damages claims arising out of an auto accident, their claims would not be referred to MAR, and instead would be slated for trial. But, with the implementation of a higher limit, any case under $100,000 may be referred to MAR, to which the consequences could include a total reversal on how defense attorneys initially approach a case.

Washington State May Be Creating a New Type of Insurance Product; The Hybrid Auto-Manufacturing Liability Policy

Author: Bryan D. Scholnick

July 16, 2018 9:00am

Generally, when we hear about autonomous vehicles, we hear about the innovations and strides being made by companies like Uber, Apple, Microsoft, and Google.  Other than Tesla, it is rare we hear news about the traditional automakers performing vehicle testing: the Big Three of their respective regions.  There is no doubt these companies will quickly start marketing and selling their branded autonomous vehicle.  If they plan to start doing…

You Got Mail! Is Electronic Delivery of Policy Documents Enforceable in Washington State?

Author: Doug Baier

Guest Editor: Issa Mikel

July 9, 2018 9:00am

A look at Jackson v. Esurance Ins. Co., 2 Wash.App.2d 470 (2017)

Background

Under Washington State law, an insurance carrier must deliver an original insurance policy to the insured “within a reasonable period of time after its issuance.”[1] Before amending or modifying an insurance contract, an insurer must give the policyholder notice and obtain the policyholder’s consent.[2] Washington law does not dictate the manner in which insurers are to deliver notice of changes or amendments to the insured.[3]

Spoliation Claims in Washington State

Author: Doug Baier

Guest Editor: Leslie Price

May 31, 2018 1:48pm

What is spoliation?

Spoliation is defined as the “destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or future litigation once the duty to do so has been triggered.[1] A party seeking sanctions for spoliation first bears the burden of establishing the opposing party destroyed relevant evidence.[2] To determine whether spoliation occurred, the majority of courts use some variation of a three-part test.[3] This test includes (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind, and (3) the evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.[4]

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