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Recent Injury Law Blog Posts

Forward Thinking Law School Adds Brain Injury Course

Posted on 20 April 2014

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Appeals Attorneys

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

Gendler v. Batiste, Washington State Patrol Chief (2012)

Mickey Gendler was rendered a quadriplegic after injurying himself on the Montlake Bridge, when his bicycle tire was caught on one of the bridge's seams. When Mr. Gendler learned that the WSP had accident reports that pointed to the bridge's history of problems for cyclists, he sought those files. But WSP refused to turn them over unless he agreed not to sue the State based on the information from those files. Gendler refused and sued WSP and its head, Batiste, to obtain the documents that he had a right to access..

The WA State Supreme court held that the State Patrol has a statutory duty to collect traffic collision reports and a duty to disclose the reports requested under the Public Records Act without requiring the requesting party to agree not to use them in litigation against the State.

Holden v. Farmers Insurance Co., 169 Wn.2d 750, 239 P.3d 344 (2010)

After a house fire, Laura Holden filed a claim for the loss of personal property under a renter’s policy with Farmers Insurance Company of Washington.  The policy provided coverage for the “actual cash value” (ACV) of the damaged property and defined ACV as “fair market value” (FMV) at the time of loss. FMV is not defined. 

Farmers refused to include the value of sales tax she paid on the personal property items in calculating the value of her claim. 

The Supreme Court, in a 6-3 decision written by Justice Stephens, found that “fair market value” was ambiguous as to whether or not it included sales tax, based in part on Farmers’ own practice of including sales tax in one of the methods it uses to calculate FMV.  Construing the ambiguity against Farmers, the Supreme Court held that Farmers must include sales tax in calculating the insured’s loss. The Supreme Court stated that including sales tax in calculating FMV does not give the insured a windfall, but rather "returns the insured to the same financial position he or she enjoyed before suffering a property loss."

**NOTE: For class members, please see forms on home page listed under this case name.

Hesse & Olson v. Sprint Corp., 598 F.3d 581 (9th Cir. 2010)

A federal judge dismissed a Washington statewide class action against a telecommunications company on the basis that it was barred by a nationwide class action settlement in Kansas.  The Ninth Circuit Court of Appeals reversed because the interests of the Washington plaintiffs were not adequately represented in the Kansas nationwide class action, and the claims of the Washington plaintiffs were not based on the same factual predicate as the claims in the settled class action.

Magaña v. Hyundai Motor America, 167 Wn.2d 570, 220 P.3d 191 (2009)

Jesse Magana was a seat-belted passenger in a vehicle that was involved in an accident, the force of which propelled him through the rear window, rendering him paraplegic.  He sued Hyundai, the vehicle manufacturer, alleging a design defect. A jury found in favor of Magana, and Hyundai appealed.  The Court of Appeals reversed the verdict in part, and the case was scheduled for trial a second time.  Shortly before the second trial, it was discovered that Hyundai had failed to provide complete and truthful responses to discovery requests.  The trial judge entered a default judgment against Hyundai as a discovery sanction.  Hyundai appealed again.  The Supreme Court affirmed the default judgment against Hyundai as a sanction for its false and misleading discovery responses.

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.

McCallum v. Allstate Property and Cas. Ins. Co., 149 Wn. App. 412, 204 P.3d 944 (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.

Cornhusker Casualty Insurance Company v. Kachman, 165 Wn.2d 404, 198 P.3d 505 (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.

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.

Doe v. Aulerich, 146 Wn. App. 1036 (2008)

American Cabulance, Inc. (Cabulance) provides nonemergency medical transportation services for individuals with disabilities. After driving a disabled woman to a medical appointment and back to her home, the Cabulance driver sexually assaulted her. The trial court dismissed her claims against Cabulance for negligent hiring, retention, and supervision. The Court of Appeals found that there were genuine issues of material fact about whether Cabulance failed to exercise reasonable care before hiring the driver, and therefore reversed the trial court’s decision to dismiss the plaintiff’s claims against Cabulance.

Jaramillo v. Ford Motor Co., 116 Fed. Appx. 76 (9th Cir. 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.

American Continental Insurance Company v. Steen, 151 Wn.2d 512, 91 P.3d 864 (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.

Otani, ex rel., Shigaki v. Broudy, 151 Wn.2d 750, 92 P.32 192 (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.

Martini, ex rel., Dussault v. State, 121 Wn. App 150, 89 P.3d 250 (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.

Leroy v. State, 124 Wn. App. 65, 98 P.3d 819 (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.

Sitton v. State Farm Mut. Auto. Ins. Co., 116 Wn. App. 245, 63 P.3d 198 (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.

Smith v. Behr Process Corporation, 113 Wn. App. 306, 54 P.3d 665 (2002)

Upheld a default as a proper sanction for discovery violations by the defendant.  Upheld class certification of a consumer class of thousands who used a defective exterior wood sealant.

Ruiz-Guzman v. Amvac Chemical Corp., 141 Wn.2d 493 (2000)

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.

British Columbia Ministry of Health v. Homewood, 93 Wn. App. 702, 970 P.2d 381 (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.

Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 971 P.2d 500 (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.

Allyn v. Boe, 87 Wn. App. 722, 943 P.2d 364 (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.

Kanning and Evans v. Thompson, 124 Wn.2d 435, 879 P.2d 938 (1994)

Established the "Dual Persona" doctrine in Washington whereby an employee may sue his or her employer where the employer owns land as a separate legal entity.

Rice v. Dow Chemical Co., 124 Wn.2d 205, 875 P2d 1213 (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.

McCluskey v. Handorff-Sherrman, 125 Wn.2d 1, 882 P.2d 157 (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.

Stephens v. City of Seattle, 62 Wn. App. 140, 813 P.2d 608 (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.

Viking Ins. Co. of Wisconsin v. Hill, 57 Wn. App. 341, 787 P.2d 1385 (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.

Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d 711 (1989)

Successfully challenged the constitutionality of a ceiling on damages imposed by the 1986 Legislature.  As a result, there are no longer limits on recoveries by injured people in Washington State.

Norris v. State, 46 Wn. App. 822, 733 P.2d 231 (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.

Connor v. Universal Utilities, 105 Wn.2d 168, 712 P.2d 849 (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.

Detwiler v. Gall, Landau & Young Construction. Co., 42 Wn. App. 567, 712 P.2d 316 (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.

Brown for Henja v. Yamaha, 38 Wn. App. 914, 691 P.2d 577 (1984)

Re-established the distinction between negligence and strict liability claims as separate and nonexclusive theories of liability for plaintiffs.

Bernethy v. Walt Failor’s, Inc., 97 Wn.2d 929, 653 P.2d 280 (1982)

Established the liability of gun dealers who provide a gun to an intoxicated person.

Lundgren v. Whitney’s, Inc., 94 Wn.2d 91, 614 P.2d 1271 (1980)

Established a cause of action for loss of consortium for a spouse in personal injury cases in the State of Washington. 

Louderback v. Labor & Industries, 19 Wn. App. 138, 575 P.2d 246 (1978)

Established the relevant criteria by which a heart attack may be an industrial injury.

Breivo v. City of Aberdeen, 15 Wn. App. 520, 550 P.2d 1164 (1976)

One of the earliest cases regarding roadway design that established significant law in the State of Washington on governmental roadway liability.

Hudson House, Inc. v. Rozman, 82 Wn.2d 178, 509 P.2d 992 (1973)

Established the applicability of equitable principles to the allocation of accreted lands to property owners.  Became the lead case in the annotation of 61 ALR 3d 1173 (1975) "Right to Accretion Built Up From One Tract of Land Extending Laterally in Front of Adjoining Tract Without Being Contiguous Thereto."