Is an IME “Health Care?” The Court of Appeals Says Yes.

Author: David Reeve

Guest Editor: Tiffany Rouhi

April 1, 2019 1:26pm

In Reagan v. St. Elmo (Div. II, No. 50662-9-II), Division II of The Court of Appeals addressed, among other things, the issue of whether the physical examination portion of an IME constitutes “health care” for purposes of RCW 7.70, i.e. the medical malpractice statute. As a refresher, RCW 7.70  “exclusively governs any action for damages based on an injury resulting from health care” and RCW 7.70.030 states in an action for damages resulting from “health care,” a plaintiff must establish one of the following:

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

Author: Mark Bolin

Guest Editor: Tiffany Rouhi

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).

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.

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.

Calculation of an Attorney-Fee Award in a Bad-Faith Claim

Author: David Reeve

Guest Editor: Tiffany Rouhi

October 1, 2018 10:00am

In  Baker v. Fireman’s Fund Insurance Company, et al., plaintiffs filed suit against their insurance companies, defendant Fireman’s Fund Insurance Company and American Insurance Company (collectively, “Fireman’s Fund”), for breaching their duty to defend in a litigation related to plaintiffs’ landfill, which became contaminated. After over a decade of litigation, plaintiffs obtained a successful result and were awarded seven-figure attorney fees. Though the fee award was disputed by both plaintiffs and defendants, it was nevertheless upheld by the Court of Appeals as the award was within the trial court’s discretion and was properly supported by its findings. The summary of the Court of Appeal’s opinion below outlines the nuanced process by which courts determine an attorney fee award to the prevailing party in a bad-faith claim.

Division 1 Decision Warns Insurers Not to Exhaust Policy Limits and Terminate Coverage While Potential Claims Remain

Author: Kyle Jones

Guest Editor: Leslie Price

September 5, 2018 9:00am

The Division 1 Court of Appeals recently issued an unpublished opinion that may give pause to insurance carriers who hope to settle claims for policy limits while other claims remain unresolved.  In Joginder Singh dba Singh AP Transport v. Zurich American Insurance Company, Docket No. 76479-9-I, 2018 WL 3844372, the court examined an insurance carrier’s decision in a difficult situation arising from an unfortunate set of facts.

Clarifying the “Self-Service Exception” in Washington to Slip-and-Fall Cases on Retail Floor Space

Author: Nicholas A. Reynolds

Guest Editor: Leslie Price

September 5, 2018 9:00am

The Washington State Court of Appeals for Division III, in a December 2017 unpublished opinion authored by Acting Chief Judge Rebecca Pennell, confronted the issue of the “self-service exception” to proving constructive notice in a slip-and-fall personal injury case. In McPherson v. Wal-Mart Stores, Inc., No. 34696-0-III, 1 Wash.App.2d 1046 (Not Reported in P.3d) the Court of Appeals affirmed a lower court’s dismissal of plaintiff Cheryl McPherson’s claim on summary judgment.

Absent a Finding of Third-Party Liability, Thiringer’s “Made Whole” Rule Bars an Insurer’s Subrogation Rights.

Author: David Reeve

Guest Editor: Leslie Price

September 5, 2018 9:00am

In Group Health Cooperative v. Nathaniel Coon and Lori Coon, (Court of Appeals of Washington, Division 1; August 13, 2018) 2018 WL 3830032, plaintiff Nathaniel Coon (hereinafter, “plaintiff”) had knee surgery and subsequently developed an aggressive leg infection resulting in an above-the-knee amputation. Plaintiff’s insurer, Group Health, paid $372,000 in medical expenses for plaintiff’s related treatment.

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.

Medical Marijuana Retailers Unsuccessfully Challenge New Cap on Retail Marijuana Licenses

Author: David Reeve

Guest Editor: Jessica Heppenstall

August 6, 2018 9:00am

The Cannabis Patient Protection Act (“CPPA”) mandated Washington’s “gray-market” medical marijuana retailers to close by July 2016 and served to consolidate regulation of both retail and medical marijuana markets under the Washington State Liquor and Cannabis Board (“LCB”). To fill the supply gap left by the closure of all medical marijuana retailers, the CPPA directed the LCB “to increase the maximum number of retail marijuana outlets the LCB had previously established, to open a new license period, and to issue permits for a greater number of retail outlets.” In addition, the LCB was directed “to develop a competitive, merit-based application process for retail marijuana licenses that included consideration of applicants’ experiences and qualifications in the marijuana industry.”

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