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In Washington, Made Whole Still Means “Made Whole,” and Enforcing a Breach of Contract Requires the Aggrieved Prove Prejudice

Author: Michael Kutzner

Guest Editor: Wendy Skillman

September 30, 2019 10:00am

Nathaniel Coon felt a “pop” in his knee while playing on ice. Coon received surgery to repair the knee at The Everett Clinic (TEC). Subsequent to the surgery, Coon suffered a serious fungal infection and leg amputation. Group Health Cooperative (GHC) provided health insurance benefits to Coon. Coon filed suit against TEC for potential negligence claims. Coon settled with TEC without involving GHC. GHC initiated a lawsuit, seeking…

Cautionary Tale on Signing Discovery Answers

Author: Nathan Furman

Guest Editor: Wendy Skillman

September 30, 2019 10:00am

Grosser v. Korsmo and First Transit, Inc., No. 17-2-06113-1 (King County Sup. Ct. 2017), arose from a bus versus pedestrian accident. The elderly plaintiff sued the bus driver and the bus driver’s employer for personal injury. At the accident scene, the bus driver collected eyewitnesses’ names and contact information on forms that his employer had provided him.

Expanding Jurisdiction for Courts of Limited Jurisdiction

Author: Michael Kutzner

Guest Editor: Danielle Vukovich

September 3, 2019 10:00am

Defense attorneys love the words “case dismissed.” Filing a case right before the statute of limitations runs, in a court lacking jurisdiction, often yielded this satisfying result. Until now. Banowski v. Guy Backstrom, DC, — P.3d —-, 2019 WL 3333172 (2019), dissects the controversial issue and concludes courts of limited jurisdiction now have the capability of transferring a case to a court with proper jurisdiction instead of ordering dismissal for lack of…

Former Coverage Counsel Precluded From Participating in Bad Faith Litigation

Author: Bryan D. Scholnick

Guest Editor: Danielle Vukovich

September 3, 2019 10:00am

In late July, 2019, Division One of the Washington State Appellate Court addressed whether an insurer’s former coverage counsel could participate in a bad faith action against the insurer.   In Richard Plein, Et Ano, v. USAA Casualty Ins Co., the Appellate Court examined whether the action the firm wanted to participate in would be substantially related to the firm’s former representation under RPC 1.9(a).  RPC 1.9(a) states…

Is the Professional Rescue Doctrine in Need of Rescue?

Author: Matt Burgess

Guest Editor: Danielle Vukovich

September 3, 2019 10:00am

Many people are familiar with the rescue doctrine; a person may seek recovery if they are injured while reasonably undertaking the rescue of a person who has negligently placed his or herself in a position of imminent peril.  As Justice Cardozo said, “danger invites rescue.”  Wagner v. International Ry., (1921) 232 N.Y. 176.  However, not as many people know that the people who are most often in a position to rescue others, first responders such as…

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

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.

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

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.

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 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…

Tyson & Mendes Notches Another Admitted Liability Win in Washington

Author: James Mendel

August 23, 2017 9:29am

Seattle Partner James Mendel prevailed in a 2-day trial arising from an accident involving an uninsured motorist.  Tyson & Mendes’ defense methods resonated with the jury, who ultimately returned a verdict of $15,000.  Plaintiff asked the jury for $63,000. Before trial, the insurance carrier offered $25,000. 

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