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.

Dwelling Determined at Time of Incident in Washington, For Now

Author: Stephanie McNulty

Guest Editor: Alexander Nguyen

January 7, 2019 9:00am

Michael and Vicky Poole’s house burned down in 2014. Attached to the house was a shop where Michael conducted business. The shop burned down with the house. The Poole’s insured their house with State Farm. When the Poole’s began to rebuild, they decided to build the shop as a standalone building. State Farm refused to pay for the destroyed shop on the grounds the rebuilt shop was not attached to the house.

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.

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.”

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 so in the State of Washington, they will likely need to add motor vehicle liability insurance to their coverage portfolio.

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