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Appeals

SKW’s lawyers have handled dozens of appeals over the past 40 years. Our appellate work has advanced and clarified the law in the areas of personal injury, wrongful death, product liability, consumer class actions, insurance, and civil procedure. While most of the firm’s appellate work has been in the Washington Court of Appeals and the Washington Supreme Court, the firm has also handled several appeals in the Ninth Circuit Court of Appeals. The following are examples of some of the appellate cases in which the firm has been involved.

Representative Cases

Lee v. Willis Enterprises, 194 Wn.App. 394 (2016)

The Court of Appeals affirmed a summary judgment ruling finding the defendant negligent for sticking a screwdriver into an energized high voltage electrical device. Rejecting the defense argument that the foreseeability of an arc blast and injury to a bystander were questions of fact for the jury, the court held that “it is foreseeable as a matter of law that serious injury could result from careless behavior while working in and around energized high-voltage electrical equipment.”

The Court also rejected the defendant’s claim that he reasonably relied upon the plaintiff’s alleged silence as an implied assurance that it was safe to stick the screwdriver into the energized drive.  The Court found that there was no authority holding that silence and inaction can give rise to an implied assurance of safety, and that an implied assurance of safety would not absolve a defendant’s own negligence.

Detwiler v. Gall, Landau & Young Construction Co.

(1986) The defendant in a negligence action served interrogatories on the plaintiff requesting identifying information about consulting experts. Plaintiff objected to providing information about nonwitness consulting experts, and the defendants successfully sought an order from the trial court compelling answers to the interrogatories. Plaintiff was granted expedited discretionary review before the Court of Appeals, which held that: (1) identities of nonwitness experts are not discoverable absent a showing of exceptional circumstances, and (2) parties have a duty to seasonably supplement responses to interrogatories requesting information about expert witnesses, and exclusion of expert’s testimony is an appropriate sanction for failure to supply supplementary responses.

Connor v. Universal Utilities

(1986) Established that due process does not require notice of a hearing to determine the amount of a default judgment in a personal injury case.

Norris v. State

(1987) A motorcyclist, whose motorcycle had struck the end of an unmarked curb immediately adjacent to a freeway on-ramp, brought a lawsuit against the State claiming negligent design and maintenance of the on-ramp. A jury found in favor of the plaintiff. The plaintiff appealed the trial court’s refusal to award him prejudgment interest on portions of the jury’s award that he contended were liquidated amounts. The State cross-appealed. The Court of Appeals held that: (1) motorcyclist was not entitled to liquidated damages; (2) motorcyclist’s testimony in deposition that he regularly visited and imbibed at certain taverns on Saturday nights was not admissible as evidence of habit; and (3) human factors specialist’s testimony as to freeway on-ramp design with reference to human perceptions and reaction times was admissible.

Viking Ins. Co. of Wisconsin v. Hill

(1990) An automobile insurance company sought a declaratory judgment as to its duty to defend. The trial court granted summary judgment against the insurer. The Court of Appeals held that the insurance company’s duty to defend was terminated upon its tender of policy limits and release from duty to defend signed by the insured, pursuant to a policy provision.

Stephens v. City of Seattle

(1991) A motorcyclist who struck a negligently designed curb sued the City of Seattle for injuries sustained. The trial court entered summary judgment in favor of the city, finding no proximate cause as a matter of law based upon the facts that the motorcyclist had been drinking and speeding on his motorcycle before he struck the curb. The Court of Appeals reversed, holding that a difference of only five miles per hour between the lower estimate by an eyewitness that the motorcyclist was traveling 50 miles per hour, and a human factors traffic expert’s assumption of 45 miles per hour as the basis for his opinion that a hazardous roadway caused the accident, was not so significant a difference as to justify holding as matter of law that the sole proximate cause of the accident was the motorcyclist’s own negligence.

McCluskey v. Handorff-Sherrman

(1994) The widow of a driver killed in a two-automobile collision brought survival and wrongful death actions against the State and the driver of the other automobile. A jury found in favor of the plaintiff, and the State appealed. The Court of Appeals affirmed. The Supreme Court held that: (1) statute providing procedure for allocating resources to highway projects did not create duty to highway users on part of State, and (2) exclusion of evidence on State’s limitations on funding for highway projects did not warrant reversal in light of argument that situation could have been remedied with signs.

Rice v. Dow Chemical Co.

(1994) A worker brought suit against an herbicide manufacturer, alleging that his exposure to herbicides caused him to develop leukemia. The trial court granted summary judgment in favor of the manufacturer. The Supreme Court accepted certification from the Court of Appeals and held that: (1) the manufacturer gave proper notice of reliance on Oregon law, and (2) Oregon law, under which action was barred or extinguished by statutes of repose and limitation, applied.

Allyn v. Boe

(1997) A landowner brought an action against an adjoining landowner for timber trespass and emotional distress. After a jury awarded damages to the plaintiff, the trial judge ordered a new trial. The Court of Appeals held that: (1) a juror committed misconduct by failing to disclose, during jury selection, her negative opinion about the defendant’s real estate expert; (2) the jury could award damages, before any statutory trebling, in excess of the value of the underlying land; (3) the damage award for timber trespass was unreasonable; and (4) the discovery rule tolled the statute of limitations.

Soproni v. Polygon Apartment Partners

(1999) The mother of a 20-month-old child who fell out of a bedroom window in an apartment complex brought a products liability action against the window manufacturer for failing to warn and provide guards on the window to prevent children from opening it. The trial court granted summary judgment for the manufacturer. The Court of Appeals affirmed. The Supreme Court held that: (1) lack of warnings was not a proximate cause of the accident; (2) evidence that window complied with building and fire codes did not foreclose design defect claim against the manufacturer; and (3) there were genuine issues of material fact as to the feasibility of alternative designs that precluded summary judgment on the design defect claims.

British Columbia Ministry of Health v. Homewood

(1999) Re-established under the doctrine of equitable subrogation that an insurer is not entitled to be paid from the third party recovery of a tort victim who does not obtain full compensation.

Ruiz-Guzman v. Amvac Chemical Corp

(2008) Established the right, under the Washington Product Liability Act, to rely on an alternative product to show that the challenged product’s risks outweigh the beneficial effects of using an alternative design.

Sitton v. State Farm Mut. Auto. Ins. Co.

(2003) Insureds of State Farm brought a class action against State Farm to recover for breach of contract and fiduciary duty, bad faith, violation of the Consumer Protection Act, and unjust enrichment by denying or limiting claims for personal injury protection (PIP) benefits after medical utilization review. The trial court certified the class and bifurcated trial. Discretionary review was granted by the Court of Appeals. The Court of Appeals held that: (1) the class action was properly certified on the ground that common questions of fact or law predominated, and a class action was superior; (2) the plan for bifurcated trial violated due process by allowing the jury to make a damages award without requiring individual claimants to establish causation and damages or providing the insurer the opportunity to show a reasonable justification for denying individual claims; and (3) bifurcated trial would not violate insurer’s right to a jury trial.

Leroy v. State

(2004)  The estate of a driver who died in a collision on an icy bridge sued the State, alleging negligence in failing to de-ice a highway bridge. The trial court granted summary judgment in favor of the State.  The Court of Appeals agreed that the State had no duty to de-ice the bridge and that the evidence failed to show that the State had notice of, and time to correct, ice on the bridge.

Martini, ex rel., Dussault v. Stat

(2004)  A driver who crashed into a nearly stopped semi-truck near midnight in a construction area on I-5 sued the State and the construction contractor for negligence in signing the construction zone, and the trucking company. The trial court granted summary judgment to the trucking company, and a jury found in favor of the State and the contractor.  The Court of Appeals reversed the summary judgment in favor of the trucking company and reversed the verdict in favor of the State because a State employee was allowed to serve on the jury, which the Court of Appeals found violated a statute that prohibits employees of an adverse party from serving as jurors.

Otani, ex rel., Shigaki v. Broudy

(2004) In a wrongful death case arising out of medical malpractice, the trial judge found the surgeon negligent and awarded damages including $450,000 for the decedent’s loss of enjoyment of life. The defendant surgeon appealed. The Supreme Court held that damages were not available for the decedent’s loss of enjoyment of life under Washington’s survival statutes.

American Continental Insurance

(2004) Established that an insured and insurer could not cancel an insurance policy after the occurrence of the tortious act, even if it was a claims made policy.

Jaramillo v. Ford Motor Co.

(2004) The surviving husband and children of a mother and daughter who died when the Ford Explorer the mother was driving rolled when she swerved to avoid a deer sued the vehicle manufacturer for design defects. A jury found in favor of the defendant. The Ninth Circuit reversed and remanded for a new trial because the trial court allowed the vehicle manufacturer to admit evidence of comparative accident statistics that were not limited to rollovers on smooth, dry pavement.

Insurance Company v. Doe

(2004) Our firm pursued an appeal involving the cancellation of insurance policies by a hospital and its insurer after our client had passed away from medical negligence after surgery. The hospital went bankrupt and we challenged the right of the hospital and insurers to cancel its policies under a state law that prohibits a retroactive annulment of the polices after an occurrence, including a death. The lower court had ruled that the cancellations were valid because a claim on the policy was not filed until after it was cancelled. The Washington Supreme Court held that the state law made null and void and such cancellation of the policy after a death irrespective of when the claim was filed.

Cornhusker Casualty Insurance Company v. Kachman

(2008) This case established that an insurance company’s use of certified mail to send a notice of cancellation of an insurance policy does not comply with the mailing requirement of RCW 48.18.290, but instead is a form of personal delivery and therefore actual delivery must be proved to comply with the statute.

McCallum v. Allstate Property and Cas. Ins. Co.

(2009)  The plaintiff filed a bad faith action against her insurer, Allstate, alleging violations of the Consumer Protection Act (CPA) based on Allstate’s handling of her uninsured motorist claim.  During the course of the lawsuit, the plaintiff filed a motion to compel production of certain documents from Allstate. Allstate filed a motion for a protective order to prevent the plaintiff from disclosing the documents. The trial judge initially granted a conditional protective order but later vacated the protective order. Allstate then requested review by the Court of Appeals.  The Court of Appeals held that: (1) Allstate failed to show that its claim manuals, claim bulletins, and training manual were trade secrets subject to protective sealing by the court; and (2) the trial court’s decision to vacate the protective order was justified.

Chen v. City of Seattle, 153 Wn. App. 890

(2009) A widow of a pedestrian who was killed at a busy crosswalk in Seattle sued the City for failure to maintain the crosswalk in a reasonable safe condition. After the lower court ruled in favor for the City, Ms. Chen appealed. Division 1 found in her favor, holding that the City had a duty to ensure that the crosswalk would be reasonably safe for those using the crosswalk.

Holden v. Farmers Insurance Company of Washington

(January 2012) A consumer class action settled on behalf of over 7,000 insureds who were improperly denied applicable Washington State sales tax on personal property losses.  The case settled following the Washington State Supreme Court’s 6-3 decision upholding the trial court’s ruling in favor of the plaintiff/insured.  The settlement called for Farmers to pay sales tax plus 12% interest per annum to every insured who submits a valid claim form, plus $500,000 in attorney fees and costs.

Gendler v. State of Washington

(August 2010) $8,000,000 settlement for a defective bridge where a gap in the bridge deck was too wide, allowing a bicycle tire to wedge in the gap, throwing the rider to the ground and paralyzing him.

You may have heard an interview on NPR, read a blog post, or read a story in The Seattle Times about this case. In the era of media spin and 15-second sound bites, it’s more often that we are forced to make assessments without the benefit of the facts. What apparently outraged some was the $8 million settlement. If you are interested in knowing the facts behind the story, read on. Make, remake, or confirm your opinion of what this case was about.

Government Liability

Washington State owns the Montlake Bridge. Washington State has a duty to make all roadways safe for bicyclists in addition to cars/all motor vehicles. The roadway across the Montlake Bridge was unsafe for bicycles.  The State knew this, yet chose to do nothing to make it safer. No other business or government entity was responsible for the safety of the Bridge besides the State.

The Montlake Bridge

Since 1999, the Montlake Bridge had been unsafe for cyclists (the State repaired the hazard in 2009). Washington State started a retrofit of the Montlake Bridge in Seattle. The project included replacing the metal grate surface of the traffic lanes. The replacement grate was of a different design than the existing. The seam, formed by two abutting sections of grate, sits in the middle of the lanes of traffic. The specifications for the Bridge deck called for a narrow seam, one that would not have posed a danger to bicycle tires. The State allowed the deck seam to be wider than the specifications called for (based on tolerances), wide enough for a road bike tire to drop into it.

1999 – Notice to the State of a Danger

During the deck replacement project, the State found out how dangerous the seam could be. A cyclist crashed when his front bicycle tire wedged in the seam and he was thrown to the deck face-first. Concerned about other cyclists, he contacted the City of Seattle, who contacted the State’s project manager to inspect the problem. The State’s project manager made a note about the crash in his project diary.

1999 to 2099 – The State Ignored the Danger

  • The State’ project manager does not recall ever following up.
  • The State could have erected a warning sign – it did not.
  • The State could have fixed the problem – it assumed this would not happen again.
  • The State could have closed the roadway to bicycle traffic – it did not.

Mickey’s Crash – October 28, 2007

Mickey met up with a friend to go for a ride around the south end of Lake Washington. They intersected near UW Medical Center. It was a quiet Sunday afternoon on Montlake, not much traffic, so they traveled on the road. There was no traffic within a block’s length behind them. Mickey rode in the right lane. Halfway across the Bridge he switched to the left lane to prepare for a left turn. As he traversed the lane, he was suddenly thrown over his front bars onto the Bridge deck on his back. His front wheel had wedged into the seam in the deck. It took two people to dislodge the wheel.

Bicycles on the Bridge

In comments to the multiple articles written about Mickey’s case, many were critical of his decision to ride on the roadway rather than on the sidewalk. This case settled in the months leading up to the trial date, but in pre-trial motions the court determined that Mickey had the right to ride on the roadway and that Mickey had the right to travel in the left lane because he was preparing for a turn.

  • “[I]t is the ruling of this Court that bicycles are entitled to travel upon the Montlake Bridge roadway as a matter of law.” Judge McPhee, February 16, 2010.
  • “Plaintiff Michael Gendler’s operation of his bicycle in the inside (left) lane of the Montlake Bridge at the time of the subject incident was authorized by law.” Judge McPhee, May 28, 2010.

The Settlement Amount

What does $8 million mean? It’s not winning the lottery. It’s not a windfall. The settlement amount represents the exorbitant costs of the care for someone with a spinal cord injury. To learn more about Mickey’s life as a quadriplegic, read this article.

The $8 million settlement was well justified, as it will help to cover exorbitant medical bills, ongoing medical care, 24/7 assistance, facility accommodations at home and at work, etc.  However, proponents of legislation to reduce the frequently target the Gendler case because of the high settlement amount. We believe that most Washingtonians recognize the importance of keeping the government accountable, when government entities ignore safety issues that could ultimately result in catastrophic injuries to innocent citizens.

Smith, et al. v. Behr Process Corporation

(2002) A class action verdict for the benefit of thousands of Western Washington consumers in Grays Harbor County Superior Court in 2000.  Breach of warranty and Consumer Protection Act violation case for defects in clear coatings for exterior wood surfaces.  The products promoted rather than prevented growth of mildew.  The nine class representatives received verdicts from a low of $24,000 to a high of $97,000. Applied to the entire class, the case resulted in a settlement of $67,500,000.

Kanning and Evans v. Thompson

(1997) $1,850,000 settlement for deaths of two workers who went down a manhole and were asphyxiated.

Magana v. Hyundai Motor America
After years of fighting with Hyundai and appearing before the state Supreme Court, Jesse Magana received a large settlement from Hyundai.
Sofie v. Fibreboard
Even after 25 years, Sofie remains one of the most important cases for personal injury and wrongful death plaintiffs. Cited by courts throughout the country, the decision has since abolished the "cap" on damages contained in RCW 4.56.250.
Hesse, et al. v. Sprint PCS
(2014) SKW obtained a $20 million settlement in a class action lawsuit against Sprint PCS.