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Separation of Powers and Mandamus: to Release or Not to Release Prisoners During the COVID-19 Pandemic

Author: Michael Kutzner

Guest Editor: Cinnamon J. Carr

August 3, 2020 11:03am

COVID-19 (“COVID”) has been an ever-increasing topic of discussion around the globe. In the recent weeks, COVID case numbers have climbed to over 4,000,000 in the United States. Close-quarter-populace facilities, such as hospitals, nursing homes, and correction facilities experience great difficulty in controlling the spread of COVID if residents become infected. In Washington, case law is already being established…

Bad Faith After Defining “Demand”

Author: Michael Kutzner

Guest Editor: Wendy Skillman

July 8, 2020 12:00pm

Demands may present in many forms. The most common of those forms is a letter. Typical demand letters contain the word “demand,” specify what is demanded, and often provide a timeframe for the demand to be met. The Washington Supreme Court performed an analysis of a letter in Robbins v. Mason County Title Ins. Co., 462 P.3d 430 (2020), which turned on the plain meaning of the word “demand.”

Cyclist Did Not Qualify for Personal Injury Protection Coverage Under Auto Policy That Did Not Define the Term “Pedestrian”

Author: Nathan Furman

Guest Editor: Allen Aho

June 1, 2020 9:00am

Plaintiff was hurt while riding his bicycle. A motorist who parked on the street did not see plaintiff approach and opened his door, striking plaintiff. Plaintiff had an auto policy that provided PIP benefits of up to $5,000 in medical expenses sustained by an “insured.” The policy defined “insured” in relevant part as “a pedestrian when struck by” a motor vehicle. The policy did not define the term “pedestrian.”

The Rules Are the Rules

Author: Michael Kutzner

Guest Editor: Allen Aho

June 1, 2020 9:00am

The Washington Court of Appeals strictly adheres to the time constraints for filing an appeal found in the Rules of Appellate Procedure (RAP). However, the RAP occasionally confuse even the most well-intentioned attorney and deadlines are missed (…enter, the dreaded malpractice suit). The Washington Supreme Court evaluated whether a summary judgment order resolving…

Property Owner Did Not Owe a Duty to A Scrap Metal Worker Following Chlorine Gas Exposure

Author: Bryan D. Scholnick

Guest Editor: Heather R. Whitehead

May 11, 2020 9:00am

Division Three of the Washington Court of Appeals recently weighed the duty owed by a property owner to a scrap metal worker.  Schuck v. Beck et al, 36754-1-III (April 21, 2020).  The scrap metal worker alleged that the property owner owed a duty under common law negligence theories and strict liability for engaging in abnormally dangerous activities.  The Appellate Court found that the property owner did not owe a duty to the worker.

Viruses in Litigation

Author: Michael Kutzner

Guest Editor: Christopher Schon

May 6, 2020 7:55pm

Unlike the now-well-known Coronavirus, Hantavirus is not spread from person to person, except in a rare few patients. Hantavirus live their lifecycle in rodents, but apparently do no harm to this host. However, when passed to a human, the results can be deadly, regardless of age or heath condition. According to the CDC, Hantavirus infections have a mortality rate of approximately 38 percent. Ehrhart v. King County, 2020 WL 1649891 (2020)…

When a Report Falls Short of Being a Report

Author: Michael Kutzner

Guest Editor: Ashley Kaye

April 6, 2020 3:10pm

The Washington Supreme Court recently analyzed whether a speculative statement qualified as a “report concerning the possible occurrence of abuse or neglect” under former RCW 26.44.050. In Wrigley v. State, 455 P.3d 1138, (2020), Ms. Wrigley brought a negligent investigation claim against Department of Social and Health Services (DSHS), based on the placement of her son, A.A., with his biological father…

Cautionary Tale on Settling with a Pro Se Claimant Who Acquired English as an Additional Language

Author: Nathan Furman

Guest Editor: Cinnamon J. Carr

March 4, 2020 10:00am

Nadeem v. Maurer, No. 36630-8-III, 2020 WL 730683 (Wash. Ct. App. Feb. 13, 2020) (unpublished), arose from a motor-vehicle accident involving Mohammed Nadeem and Kendra Maurer. Nadeem was born in Iraq and was not fluent in English, though he understood English for basic transactions.  Shortly after the accident, Nadeem made a bodily injury claim to Maurer’s insurer.

Removing Race as a Criteria for Selecting Jurors

Author: Michael Kutzner

Guest Editor: Cinnamon J. Carr

March 4, 2020 10:00am

Juries hold significant power. The power to decide extreme sums of payment. The power to decide life or death. Juries also hold the power to act as a check on government power to ensure the separation of powers between the legislative, executive, and judicial branches. With such power comes responsibility, and such responsibility must begin with a fairly selected jury. The Washington Supreme Court analyzes fair and just…

Extra-Contractual Claims May Still Be Available When an Insurance Policy Contains A “Suit Limitation” Provision

Author: Bryan D. Scholnick

Guest Editor: Lara Cullinane-Smith

February 3, 2020 10:00am

Division One of the Washington Appellate Court recently found that a one-year suit limitation clause does not apply to extra-contractual claims.  West Beach Condominium v. Commonwealth Ins. Co. of America, 2020 WL 133543, (Div. I, Jan. 13, 2020).  West Beach Condominium were constructed in the late 1960s into early 1970s.  Some 40-years later, West Beach hired a consultant to investigate potential water intrusion issues of the…

Disqualifying Judges: Expanding Washington Law

Author: Michael Kutzner

Guest Editor: Lara Cullinane-Smith

February 3, 2020 10:00am

Disqualifying one judge from a case in Washington is a fundamental right. No reasoning is needed. However, a judge may only be disqualified before the judge has made a discretionary ruling or order in the case. The RCW provided (now expanded) slim examples of actions by a judge which are not discretionary ruling or order. In Godfrey v. Ste. Michelle Wine Estates Ltd., 453 P.3d 992 (2019), the Washington Supreme Court analyzes the…

Defendants Can Usually Tell Juries When Plaintiffs Were Drunk, But Can They Say How Drunk?

Author: Matt Burgess

Guest Editor: Dan Cortright

January 8, 2020 11:00am

In its upcoming term, the Washington Supreme Court is expected to review whether a trial court can exclude evidence of a plaintiff’s blood alcohol content (“BAC”) when a defendant asserts the affirmative defense of involuntary intoxication. This defense, codified in RCW 5.40.060(1), provides a complete defense to personal injury actions if the plaintiff was intoxicated, his or her intoxication was a proximate cause of his or her injury, and…

Wrongful Denial of PIP Coverage Invites CPA Claims

Author: Michael Kutzner

Guest Editor: Aydin Emami

January 8, 2020 11:00am

The Consumer Protection Act (CPA) prohibits unfair and deceptive trade practices. Persons “injured in their business or property” may sue for injunctive relief, damages, attorney’s costs and fees, and treble damages. Krista Peoples and Joel Stedman sued their insurance carriers under the CPA for violating Washington claims-handling regulations and wrongfully denying them personal injury protection (PIP) benefits. The Washington…

Lowering Standards for Overcoming Summary Judgment – Expert Speculation Will Suffice

Author: Michael Kutzner

Guest Editor: Dan Cortright

December 2, 2019 10:00am

Every once in a while a party will try to introduce “expert testimony” to prevent summary judgment based upon conjecture and/or speculation. Courts typically, and correctly, preclude this evidence and grant summary judgment. However, in Strauss v. Premera Blue Cross, 449 P.3d 640 (2019), the Washington Supreme Court ruled expert testimony based on inconclusive evidence (speculation) was sufficient to overcome summary judgment.

Washington State Supreme Court Outlines All Available Causes of Action Against a General Contractor for Injuries Arising on a Job Site

Author: Bryan D. Scholnick

Guest Editor: Dan Cortright

December 2, 2019 10:00am

On November 21, 2019, the Washington State Supreme Court, in a unanimous decision, reaffirmed that general contractors on construction job sites have a statutory and a common law duty to maintain a safe work site.  Vargas v. Inland Washington, LLC, 96527-7, 11/21/19.  Additionally, the Court stated that a general contractor may also face vicarious liability for the failures of others on the job site to provide a safe workplace under…

Washington Supreme Court Upholds Seattle’s First-In-Time Housing Ordinance

Author: Matt Burgess

Guest Editor: Raymond K. Wilson Jr.

December 2, 2019 10:00am

Landlords recently tested the constitutionality of a Seattle ordinance which requires landlords to offer tenancy to the first qualified applicant, with a few exceptions. Seattle Municipal Code 14.08.050 (“first-in-time rule” or “FIT”) generally requires Seattle landlords to offer tenancy to the first qualified applicant. Seattle designed the law in an attempt ensure equal treatment for renters by preventing landlords from exhibiting bias, whether conscious or…

Are Government Contractors “Persons” Under Washington’s Anti-SLAPP Statute?

Author: Matt Burgess

Guest Editor: Robert Bernstein

November 5, 2019 8:00am

Many states around the country possess an Anti-SLAPP statute. These statutes are designed to protect parties from strategic lawsuits against public participation (SLAPP); that is, to protect people from being sued for exercising their First Amendment rights. Washington is no different. Washington’s Anti-SLAPP statute, RCW 4.24.510, “provides immunity from civil liability for a “person” who communicates a complaint or information to a federal, state, or…

You Can Sue the Insurer, but Not the Employee Adjuster

Author: Michael Kutzner

Guest Editor: Robert Bernstein

November 5, 2019 8:00am

In April 2007, Moun Keodalah and an uninsured motorcyclist collided in an intersection in Washington. After Keodalah stopped at a stop sign and entered the intersection, the motorcyclist collided with Keodalah’s truck. Keodalah was injured and the motorcyclist perished. Keodalah carried underinsured motorist (UIM) coverage…

Getting Something for Nothing: When is an Insurance Company Bound by Its Agent’s Written Representations?

Author: Bryan D. Scholnick

Guest Editor: Robert Bernstein

November 5, 2019 8:00am

The Ninth Circuit certified the following question to the Supreme Court of the State of Washington: Is an insurance company is bound by its agent’s written representations that a particular corporation is an additional insured under a given policy?  In a 7-2 decision, published on October 10, 2019, the Washington State Justices found that an insurance company is bound by the representation of its agent when the agent acted with apparent authority…

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

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

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…

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