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Washington Supreme Court Finds Dairy Work Dangerous

Author: Michael Kutzner

Guest Editor: Jeremy Freedman

November 30, 2020 4:11pm

The law is ever-evolving. Thought paradigms shift with an increased understanding of human dynamics and the introduction of new ideas. Washington law typically follows a more liberal-sided evolution of the law, often causing defense attorneys some degree of frustration. Washington law regulates minimum wage but also provides exemptions from the minimum wage requirement for some positions in various industries. The Minimum Wage Act of Washington was based on the Fair Labor Standards of 1938, which plaintiffs in Martinez-Cuevas v. DeRuyter Brothers Dairy, Inc., WL 6495500 (2020) claimed incorporated racist motivations underlying the federal statute.

Liberally Construed Elements of the Consumer Protection Act

Author: Michael Kutzner

Guest Editor: Jenn N. Crittondon

November 2, 2020 3:00pm

Consumer Protection Act (CPA) claims must satisfy five elements to be successful in Washington. A plaintiff must establish (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to a person’s business or property, and (5) causation. In Young v. Toyota Motor Sales, U.S.A., WL 5668986 (2020), the Washington Court of Appeals opined the unfair or deceptive act must be material for the first element to be satisfied. The Washington Supreme Court found this conclusion to mistake the sufficient for the necessary.

Admission of Intoxication Precluded BAC Evidence at Trial and a Tenant’s Guest is Precluded From Claims Under RLTA

Author: Michael Kutzner

Guest Editor: Jeremy Freedman

October 5, 2020 2:13pm

Washington law prohibits an award of damages if the claimant was drunk and more than 50 percent at fault for causing the damages. Pursuant to the Revised Code of Washington (“RCW”) section 5.40.060(1) is an affirmative defense, and provides “the person injured . . . was [(1)] under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury . . . and [(2)] that such condition was a proximate cause of the injury . . . and [(3)] the trier of fact finds such person to have been more than fifty percent at fault.”

The Downward Spiral: Poor Litigation Often Leads to A Meritless Appeal

Author: Michael Kutzner

Guest Editor: Allen Aho

September 9, 2020 11:00am

Employment discrimination cases may present unique opportunities for plaintiffs and defendants alike. Although typically barred in civil litigation, if a plaintiff prevails in an employment discrimination case, s/he may request attorney’s fee under Washington statute, and said attorney’s fees will likely be awarded. A unique element of employment discrimination cases for defense counsel pertains to case theory. Often, defense counsel wishes to present many alternate theories of a case to a jury to negate many possibilities…

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

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…

Wrongful Denial of PIP Coverage Invites CPA Claims

Author: Michael Kutzner

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…

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.

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