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Recent Appellate Decisions – September 14 to September 20, 2012

Selected summaries prepared by Commissioner James Verellen (ret.)

Washington Supreme Court

September 20, 2012

Diaz v. Medical Center Laboratory and Dr. Kini No. 86049-1

medical malpractice – evidence of settlement – not admissible by non-settling defendants (RCW 7.70.080) – alternatively, more specific and more recent statutes allowing judge to reduce an injured person’s damages in the amount of reasonable settlement (RCW 4.22.060) and jury to allocate fault to every party whose fault caused injury to the claimant (RCW 4.22.070) control – alternatively, RCW 7.70.080 must yield to ER 408 – harmless error

Diaz filed this misdiagnosis malpractice action against the lab (MCL) and pathologist (Dr. K) who analyzed his biopsy, as well as the surgeon (Dr. F) who removed his larynx and the hospital (UWMC) where the surgery was performed.  Diaz settled with Dr. F and UWMC.  The trial court ruled that if evidence of the settlement with Dr. F and UWMC was offered, it would be admitted under RCW 7.70.080.

Diaz referred to the settlement in his opening statement, but the evidence of the settlement was never offered.  The trial court gave Diaz’s requested curative instruction that evidence of settlement should not be used to assume the settling defendants acted negligently, to excuse any liability of the non-settling defendants, or to reduce any damages. The jury returned a defense verdict.  The trial court denied Diaz’s motion for a new trial.  The Court of Appeals affirmed.

The Washington Supreme Court (9-0) affirmed the trial court based on harmless error:

  • RCW 7.70.080 replaced the collateral source rule in medical malpractice cases; “the purpose of RCW 7.70.080 is to delegate to the jury the task of determining whether an injured person has already been compensated for the injuries and the task of reducing any verdict by the amount of compensation already paid.”
  • The plain language of RCW 7.70.080 (“evidence of compensation by a defendant health care provider may be offered only by that provider”) precludes the non-settling defendants from offering evidence of a settlement with other defendants.
  • Alternatively, RCW 7.70.080 is controlled by two more recent and more specific conflicting statutes:

“RCW 4.22.060 delegates to the trial judge the task of deducting from any damage award the amount of any prior settlements;

RCW 4.22.070 ignores the amount of any prior settlements and requires the trier of fact, usually the jury, to allocate fault to each at-fault party and to allocate liability for damages based on allocation of fault.  Fault can be allocated to defendants still in the case, defendants who have been release, and even to entities who were never brought into the case at any time.”

  • “If settlement evidence were admissible under RCW 7.70.080, as the trial court ruled, there would be yet another conflict because settlement evidence is inadmissible under ER 408 and applying the statute and applying the evidence rule would produce contrary results, raising separation of powers concerns…the statute should have yielded to the evidence rule.”
  • “The error here did not affect the outcome of the trial.”  The settlement was not admitted as evidence, Diaz made a single reference to the settlement in his opening, the trial court gave the curative instruction requested by Diaz, the jury is presumed to follow the instruction, the jury never reached the question of damages, and there is no showing of a “corrosive” effect.
  • “In examining evidentiary errors, we do not check our common sense at the door.  We hold that the trial court’s error was harmless.”

Fellows v. Moynihan, Hutchinson and Southwest Washington Medical Center No. 85382-7

Discovery – malpractice – peer review privilege – quality improvement privilege

The statutory peer review privilege protects records of hospital internal proceedings where one health care professional presents evidence of negligence or incompetence against another.  The statutory quality improvement privilege shields information and documents, including complaints and incident reports, created specifically for, and collected and maintained, by a quality improvement committee.

G suffered serious birth injuries at the hospital.  Dr. M and Dr. H were involved with the delivery.  The hospital took corrective action against Dr. M.  Ultimately, Dr. M surrendered his in-hospital obstetrics and postpartum privileges.  Fellows, the litigation guardian for G, filed a lawsuit against Dr. M, Dr. H and the hospital.  Fellows sought discovery of: privileging and credentialing records for G’s treating physicians; any records created for nonquality improvement committees; and records relating to the hospital’s decision to restrict Dr. M’s privileges.  Fellows filed motions to compel discovery.  The trial court declined to conduct in camera review, and denied the discovery motions, except to the extent that information and materials fall within exceptions to the quality improvement privilege.  The trial court accepted the hospital lawyer’s certification that none of the credentialing, privileging and personnel records satisfied any of the exceptions to nondisclosure.

The Washington Supreme Court (9-0) reversed the trial court and remanded for in camera review of the records sought by Fellows:

  • The peer review and quality improvement privileges must be narrowly construed in favor of discovery.
  • “The burden of establishing entitlement to nondisclosure rests with the party resisting discovery.”
  • “The purpose of both RCW 4.24.250 [peer review privilege] and RCW 70.41.200 [quality improvement privilege] is to allow hospitals to effectively and candidly evaluate information concerning the hospital’s experience and staff expertise in order to improve the quality of services it provides.”
  • A hospital’s initial credentialing and privileging of staff members occurs outside of a peer review committee before a staff member provides any reviewable services at the hospital.
  • “Proceedings, reports, and written records prepared for or by the [hospital’s] executive committee for purpose of analyzing [Dr. M’s] ability to perform deliveries leading up to the decision to revoke his privileges would fall under the peer review privilege.”
  • While the legislature may have intended protection of the quality improvement periodic review process, “it did not extend this protection to the initial credentialing and privileging process.”
  • “[T]he quality improvement privilege requires that protected documents be ‘created specifically for, and collected and maintained by, a quality improvement committee.’”
  • “The plain language of the [quality improvement privilege] statute requires that a hospital disclose the fact that it has terminated or restricted a staff member’s privileges and its reasons for doing so.”
  • The failure to include “investigative files” in the discovery request does not excuse the hospital from searching the investigative files for the requested credentialing, privileging and personnel records.  “The party seeking discovery cannot be expected to know how the other party organizes its records.”
  • The trial court is better positioned to determine whether the hospital’s failure to provide its reasons for restricting Dr. M’s privileges was “substantially justified” or was the basis for sanctions.

Niccum v. Enquist No. 8398302

mandatory arbitration – attorney fees –improving position – inclusion of costs in offer of settlement

Enquist collided with Niccum’s car.  Niccum sued Enquist.  In mandatory arbitration, the arbitrator awarded Niccum a total of $24,496 consisting of medical expenses, lost wages and pain and suffering.  Enquist filed a request for a trial de novo.  Before the trial de novo, Niccum offered to compromise his claim with an award of $17,350 “including costs and statutory attorney fees.”  The jury returned a verdict for Niccum in the amount of $16,650 including past medical expenses and noneconomic damages.

Based on RCW 7.06.060 and MAR 7.3, Niccum moved for $15,640 in reasonable attorney’s fees, $1,016.28 in costs (including the statutory attorney fee), and $1,461 in expert witness fees.  Niccum argued that Enquist, the appealing party, failed to improve his position in the trial de novo, when compared to Niccum’s offer of compromise.  Niccum contends that the trial court must subtract the $1,016.28 in costs (including the statutory attorney fee) from the jury award in order to compare Enquist’s recovery in the trial de novo with Niccum’s offer of compromise “including costs and statutory attorney fees.”  The trial court agreed with Niccum and awarded him $15,640 in reasonable attorney fees incurred after the arbitration award, together with $1,016.28 in costs (including the statutory attorney fee) and $1,461.00 in expert witness expenses.  The Court of Appeals affirmed the superior court.

The Washington Supreme Court (5-4 with Justice Alexander and Judge Dwyer pro tem in the majority) reversed:

  • The Washington Supreme Court has never adopted the doctrine of “comparing comparables.”
  • “Even accepting the doctrine of comparing comparables, it is still improper to subtract costs from an offer of compromise.”
  • “There is…no statutory justification for segregating an offer of compromise into separate amounts corresponding to damages and costs.”
  • “We decline to read RCW 7.06.050(1)(b) ‘so that any segregated amount of an offer must replace an amount in the same category granted under the arbitrator’s award.’”
  • An ordinary person would consider the “amount” of an offer of compromise is the total sum of money offered in exchange for settling the lawsuit.
  • Because Niccum’s offer of compromise was $17,350 and the jury awarded him only $16,600, a “straightforward application of the statutory language shows that Enquist improved his position on trial de novo.”  Niccum was not entitled to reasonable attorney’s fees.

Franklin County Sheriff’s Office v. Parmelee No. 86410-1

Public Records Act – identity of requester – retroactivity of new limit on prisoner requests – premature appeal

Parmelee, an inmate, made 81 public records requests to the County seeking extensive information about guards and staff.  The County disclosed a list of staff and sought an injunction against further disclosure.  Without making a determination whether the requested records were exempt, the trial court initially granted a permanent injunction, but then held that the requestor’s identity is not relevant to the question whether the requested records may be withheld.  The trial court granted Parmelee’s motion to set aside the injunction and to strike the portion of the County’s petition regarding his identity.

The Court of Appeals granted discretionary review.  While the appeal was pending, the legislature adopted a new statute permitting an injunction of prisoner record requests under certain circumstances.  The Court of Appeals held that the trial court could generally consider the requestor’s identity when considering injunctive relief and that the new statute is retroactive.

The Washington Supreme Court reversed the Court of Appeals concluding that review is premature.

  • “Having determined that the Court of Appeals improperly reviewed the case when the trial court had not ruled on whether the records are exempt, we reverse the Court of Appeals and remand [to the superior court] for a hearing on the permanent injunction.”
  • On remand, the trial court may also consider the retroactivity of the new statute if properly raised by the County.

Division I Washington State Court of Appeals

September 17, 2012

Keithly v Sanders No. 67064-6

service of process – nonresident motorist vehicle act – failure to send “forthwith” notice of service of the secretary of state by registered mail to defendant at last known address

The nonresident motorist vehicle act (RCW 46.64.040) allows substitute service upon a nonresident motorist involved in an accident in Washington by leaving two copies of the summons, together with the required fee, with the secretary of state “PROVIDED, That notice of such service and a copy of the summons or process is forthwith sent by registered mail with return receipt requested, by plaintiff to the defendant at the last known address of the said defendant.”  (emphasis added).

S and K were in a car accident in December 2007.  In 2008, S moved from Washington to China and changed the address on his automobile registration to his father’s Federal Way address.  On October 5, 2010, K filed a summons and complaint.  K’s attempts to serve S at the Federal Way address were unsuccessful because S had relocated to China.  On December 30, 2010, K served two copies of the summons and complaint, required fee and other documents on the secretary of state.  K waited several weeks until January 27, 2011 to send notice of service of the secretary of state to S by certified mail to the Federal Way address.

The trial court granted summary judgment dismissing the lawsuit on the basis that K failed to comply with the nonresident motorist vehicle act and the statute of limitations has run.

Division I affirmed:

  • Statutes providing for constructive or substitute service must be strictly construed.
  • The plain meaning of RCW 46.64.040 is that the plaintiff must both serve two copies of the summons (and other required documents) on the secretary of state and mail notice of such service to the defendant’s last known address “forthwith.”
  • Forthwith means immediate and without delay.  (Black’s Law Dictionary).
  • “Accordingly, the plain words of the statute evidence the legislature’s intent that notice to the defendant must be mailed immediately after service of two copies of the summons on the secretary of state.  Without such timely mailing of notice, service is insufficient.”
  • The statute of limitations was tolled until January 3, 2011, 90 days after the summons and complaint were filed.  K served the secretary of state with two copies of the summons within that time limit, but failed to mail notice of such service to S at his last known address until several weeks after the statute of limitations had run.  “Accordingly, [K] failed to timely serve [S].  The trial court did not have personal jurisdiction to proceed.”

Parentage of GWF and AWF Finch v. Wieder No. 66693-2

domestic relations – committed intimate relationship – oral agreement to keep income and property separate – unilateral termination of committed intimate relationship

There is a rebuttable presumption that property acquired by the parties in a committed intimate relationship is community-like.  The parties’ oral or written agreement to keep their income and property separate may rebut that presumption.  Such an agreement must be fair.

Psychologists W and F entered into a committed intimate relationship and orally agreed to share all tasks equally.  They would contribute equally to the payment of their joint household and childcare expenses, but all other income and property would remain each partner’s separate property.  Over the course of their 25-year relationship, they maintained separate accounts, separate investments and separate health insurance.  They maintained a joint account and joint credit card for certain joint expenses, but over time W contributed 60% and F 40% to the joint account.  They agreed to co-own a family residence.  W contributed more of the funds required to acquire the land for the residence.  W took all the tax deductions associated with the residence.

In May 2007, W informed F that he wished to end their relationship.  They continued to reside together until 2009.

F sought an equitable division of assets.  The trial court found a committed intimate relationship and an enforceable oral agreement regarding separate property.  The trial court ordered W to pay $45,000 to F from the proceeds of the residence to reimburse F for an equal share of the tax deductions on the residence.  The trial court also concluded that the relationship terminated when W informed F that he wanted to end their relationship.

Division I affirmed the trial court:

  • A committed relationship is not a marriage, but courts may apply community property laws by analogy.
  • “Partners in a committed intimate relationship, like spouses, may change the status of their community-like property to separate property by entering into mutual agreements.”
  • The agreements may be oral or written, but “to enforce an oral agreement changing the nature of the property accumulated during the committed intimate relationship, a court must find that an oral agreement existed and that it was observed throughout the relationship.”
  • Substantial evidence supports the trial court’s finding that over the course of the 25 year relationship “the parties avoided comingling their individual and joint assets.”
  • The modification of the original terms to match their changing earning capacities (60-40) was not a breach of the agreement negating the actual performance over time.  Neither was the unequal contribution toward the purchase of the land for the residence.   W took all of the tax deductions for the residence, “[b]ut this alone is insufficient to negate the existence and observance over time of the parties’ oral agreement,” especially when the trial court required W to reimburse F for her share of such tax deductions.
  • Like prenuptial and postnuptial agreements, the two-prong Matson test applies to determine the fairness and enforceability of the agreement between the parties to a committed intimate relationship.  First, the agreement must be substantively fair – provide a fair and reasonable provision for the party not seeking to enforce the agreement.  Second, such an agreement is procedurally fair if there has been full disclosure of the amount, character and value of the property involved, and the agreement was entered into fully and voluntarily on independent advice with full knowledge of rights.  If the agreement is substantively fair, the court need not examine procedural fairness.
  • The trial court properly concluded that there had been a full disclosure between the parties and there is nothing unfair about “two well-educated working professionals agreeing to preserve the fruits of their labor for their individual benefit.  The agreement is substantively and procedurally fair.”
  • Unlike the defunct marriage doctrine that requires that both parties engage in some conduct that the marriage was over, a committed intimate relationship requires mutual intent to form and maintain the relationship.  “Thus, when a party to a committed intimate relationship expresses the unequivocal intent to end the relationship, that relationship ends.”
  • In May 2007, W unequivocally demonstrated an intent to end the committed intimate relationship.  “This intent was communicated to and understood by the other party to the relationship.  The relationship ended at this point.  The fact that the parties continued to live together for an additional period of time does not required application of the provisions of RCW 26.16.140 [re: defunct marriage] to this relationship.”

Oregon Mutual Ins. v. Hartford Fire Ins. No. 66755-6

insurance – water intrusion – duty to defend – bad faith – estoppel – CPA – contribution – negligence – defense costs – attorney fees – sanctions

An insurer has a duty to defend when the policy “conceivably covers” the allegations in the complaint filed against the insured.

W, the general contractor on a condominium project, subcontracted with Otis to install an elevator.   Otis arranged with Hartford for a specialized owners and contractors protective policy (OCP) naming W as an insured.  The Hartford OCP policy covered property damages caused by an occurrence arising from Otis’s performance of the subcontract.  The construction was completed in 1999.

In 2002, the condominium developer sued W for failure to provide “defect-free work” in breach of the construction contract with resulting water damage to the units and common areas.  The complaint specifically alleged damage for the installation of siding, vinyl covering applied to decks, roofing and flashing, failure to install window coverings, and failure to install landscaping.  The complaint made no mention of any act or omission of Otis or the elevator generally.  One year later, W’s attorney tendered the defense to Hartford.  Hartford declined the tender.

Several condominium owners asserted third party claims against the developer.  The developer’s insurer, State Farm, defended and settled those claims.   State Farm then sued W to recover the full settlement amount alleging “substantial defects in the work performed” by W.  The complaint made no reference to any act or omission of Otis or to the elevator generally.  In 2004, W tendered the defense of the State Farm action to Hartford.  Hartford declined the tender.  W’s attorney sent a letter alleging bad faith.

Oregon Mutual, W’s insurer under a separate policy, defended W, paid to settle the claims against W, and took an assignment of W’s interests.  In 2005, Oregon Mutual, acting on its own behalf and as W’s assignee, sued Hartford alleging breach of contract, bad faith, negligence, statutory violations, Consumer Protection Act (CPA) violations, estoppel, contribution, subrogation and attorney fees.

After a series of motions, the trial court granted partial summary judgments concluding that Hartford breached its duty to defend the developer’s lawsuit but not State Farm’s lawsuit.   The trial court later accepted Hartford’s argument that Oregon Mutual did not establish any damages from the breach of its duty to defend the developer’s lawsuit.  Ultimately, the trial court dismissed all of Oregon Mutual’s remaining claims.

Oregon Mutual appealed.  Hartford cross-appealed the determination that it had breached its duty to defend the developer’s lawsuit.  Division I concluded that Hartford did not have a duty to defend either lawsuit and affirmed the dismissal of all of claims:

  • A duty to defend is broader than the duty to indemnify and is triggered “if the complaint against an insured alleges facts that could, if proven, impose liability upon the insured within the policy’s coverage.”
  • “[I]f the insurance policy conceivably covers the allegations in the complaint, an insurer must defend the lawsuit.”
  • “We liberally construe an ambiguous complaint in the insured’s favor.  But a complaint must ‘give the opposing party fair notice of what the claim is and the ground upon which it rests.’”
  • “Even a liberal construction of these two complaints cannot support Oregon Mutual’s contention that it pleaded sufficient allegations, if proved, to trigger the OCP policy’s provision providing coverage for ‘property damage’ arising out of [O]’s work.  The reading that Oregon Mutual urges us to adopt – that general allegations of water damage and construction defects implicates Otis’s elevator installation – lies beyond the range of conceivable reasonable interpretations and is simply speculative.”
  • Under Oregon Mutual’s broad reading, “any complaint alleging defective performance of a construction contract, without more, would implicate the insurer for every entity providing labor or materials to the project.  In short, Oregon Mutual’s interpretation is unreasonable, and we decline to adopt it.”
  • Because Hartford did not breach its duty to defend, the bad faith allegations fail.
  • Because Hartford did not act in bad faith, the estoppel claim fails.
  • For lack of any bad faith, Oregon Mutual cannot establish a per se CPA claim.
  • In the duty to defend context, damages may include expenses and attorney fees incurred in defending the underlying action.  But the $5,100 incurred by Oregon Mutual in attempting to persuade Hartford to defend were not fees incurred in defending the underlying action.  The injury element for a CPA claim is not established, and the negligence claim fails for lack of damages.
  • “Equity does not provide a right for an insurer to seek contribution from another insurer who has no obligation to the insured.”  The contribution claim fails.
  • “Because Hartford did not breach its duty to defend, it is not liable for any share of defense costs.”
  • Oregon Mutual did not prevail below or on appeal and is not entitled to attorney fees under Olympic Steamship.  Sanctions or fees are not warranted on appeal.

Division II Washington State Court of Appeals

September 18, 2012

Eubanks and Gray v. Brown No. 42329-4

venue – sexual harassment claim against public officer – adjoining judicial district

Generally, venue for an injury claim includes the county where a defendant resides.  All actions against a county may be commenced in that county or either of the two nearest judicial districts.  An action against a public officer for acts done by him in virtue of his office, shall be tried in the county where the action arose.

Brown was a deputy prosecuting attorney for Kiickitat County and supervised E and G.  E and G allege that Brown sexual harassed them.  They sued Brown, Kilickitat County and the Kilickitat County Prosecuting Attorney.  E and G initially filed their lawsuit in Benton County but then obtained an order changing venue to Clark County.  Brown asked the Clark County court to dismiss or transfer venue to Klickitat County.  The Clark County court denied Brown’s motion.

Division II granted discretionary review and affirms that venue was proper in Clark County:

  • Specific venue statutes control over general venue statutes.
  • The sexual harassment cause of action against Brown does not concern acts he engaged in by virtue of his office.  “Brown is being sued individually for personal misconduct in a workplace and not for any failure concerning his official duties.”  The specific venue statute for claims against a public officer for acts engaged in by virtue of his office does not apply.
  • Brown could be sued in Kilickitat County where he resides, but the plaintiff has the option of suing in either of the two nearest judicial districts.  The general venue statute that a defendant be sued where a defendant resides does not control.
  • Venue in Clark County is “proper as to both Klickitat County and Brown.”

Bowers v. Marzano No. 41362-1

negligence – favored driver – point of notice – question of fact – enhanced injuries

B was a passenger in a Subaru.  The driver of the Subaru made a “California stop” at a stop sign and pulled into the intersection.  M did not have a stop sign and drove her truck into the intersection, and collided with the Subaru.  B sued M alleging that M could have prevented or minimized the accident if she had driven with appropriate attentiveness.

A witness estimated the Subaru was not traveling any faster than 10 mph as it approached the stop sign.  M saw the Subaru cross through the stop sign.  The truck CDR system revealed the truck was traveling at a constant rate of 1280 RPMs at the time of impact.  Subaru was in first gear after the collision and the owner of the Subaru stated that it could not exceed 22 mph in first gear.  B’s accident reconstruction expert analyzed skid marks, vehicle characteristics and weight, the vehicles resting positions, surface conditions and coefficient of friction and the SLAM accident reconstruction program.  B’s expert concluded that: the Subaru was not traveling faster than 15 mph when it traveled through the intersection; at 15 mph it would have taken the Subaru 2.53 seconds to travel from the stop sign to the point of impact; before the impact M was traveling at least 41 mph;  because M saw the Subaru cross through the stop sign  M’s point of notice that the Subaru would fail to yield the right-of-way was at least 152.13 feet before M reached the point of impact;  M had 1.86 seconds and 111.8 feet to brake and void the collision.

The trial court granted summary judgment dismissing the action because B’s expert opinion amounts to mere speculation of M’s point of notice.

Division II reversed the trial court:

  • A favored driver may assume that a disfavored driver will yield the right-of-way and this assumption continues until the favored driver becomes aware, or reasonably should be aware, that the disfavored driver will not yield the right-of-way.
  • The point where a favored driver realizes a disfavored driver will not yield the right-of-way is the point of notice.  From the point of notice, the favored driver enjoys a reasonable reaction time to avoid a collision.
  • To establish proximate cause, the plaintiff must produce evidence from which the trier of fact can infer the favored driver’s approximate point of notice; failure to establish the favored driver’s point of notice supports a summary judgment.
  • If an expert’s opinion of the point of notice is based on assumptions and not on evidence such as speed and distance calculations on skid marks and coefficient of friction, then the expert’s opinion does not support a genuine issue of material fact as to the point of notice.
  • B’s expert did base his opinions on speed and distance calculations on skid marks and coefficient of friction, actual measurements and an accident reconstruction program.  A genuine issue of material fact requires a trial.
  • The plaintiff’s theory that M’s excessive speed contributed to enhanced injuries may go to the jury in view of the evidence of M’s point of notice.

Division III Washington State Court of Appeals

September 18, 2012

Williams v. Leone & Keeble Inc. No. 27701-1

choice of law – tort – policy considerations – Restatement  Second Conflicts § 146

Washington choice of law analysis for torts is a two-step process.  The first step is to analyze the “most significant relationship” to the occurrence and to the parties using the factors of the Restatement Second of Conflicts § 145.  If those contacts are evenly balanced, then the second part of the analysis is an evaluation of the interests and public policies of the involved states with respect to each particular issue as provided for in Restatement §146 and §6.

W, a Washington resident, was injured in a fall while working for a subcontractor on a project in Idaho.  L&K, a Washington corporation, was the general contractor.  W received Idaho worker compensation, and later filed a lawsuit against L&K in Spokane Superior Court.  The trial court dismissed for lack of jurisdiction.  A prior appeal concluded with the Washington Supreme Court holding there was jurisdiction, but remanding to Division III with instructions to address the choice of law issues by applying Restatement § 146 and the policy considerations discussed in Johnson v. Spider Staging Corp., 87 Wn.2d 577, 580 and 583.

Division III (2-1) held that Washington law applies to each issue except that OSHA rather than WISHA applies:

  • Idaho law does not allow a third party negligence claim against a general contractor, but here a Washington resident seeks recovery against a Washington corporation.  “Washington has a greater interest in obtaining a full recovery for one of its citizens by regulating a Washington corporation.”  Washington need not apply Idaho’s immunity statute in this case.
  • The purpose of Idaho’s cap on general damages “is to protect Idaho residents from excessive liability insurance premiums.”  But the parties here are Washington residents and “Washington has an interest in protecting the rights of its citizens to a full jury trial.”
  • Idaho’s allocation-of-fault laws do not apply because those laws serve the local interest of protecting Idaho corporations from excessive demands.  “Washington has a greater interest in seeking full recovery for a Washington plaintiff from a Washington corporation.”
  • Idaho laws allowing fault to be allocated to the plaintiff’s employer do not apply.  “Washington has the greater interest in applying its law of pure comparative negligence between two of its residents.”
  • The safety standards applicable here are substantially the same under Idaho’s OSHA standards and Washington’s WISHA statute.  The local standards of OSHA apply, but otherwise Washington has a greater interest in applying its construction site negligence law.
  • Neither W or L&K is a resident of Idaho, “so neither has an interest in applying [Idaho’s] negligence per se law to this issue.”

Kelly v. Moessland No. 29210-0

domestic relations – committed intimate relationship – three year statute of limitations – accrues when relationship ends

K and M began living together in 1984.  In 2009, K filed an action to divide property acquired during their committed intimate relationship (CIR).  M moved to dismiss based on the three-year statute of limitations.  He argued that their relationship ended in 1999, when he began a “significant romantic relationship” with D, another woman.  M presented K’s e-mails from 2003 to 2005 acknowledging that she knew of M’s relationship with D and referring to herself as single and essentially single.

The trial court granted summary judgment dismissing the action and awarded attorney fees to M based on “need, ability and intransigence.”

Division III affirmed the dismissal but reversed the award of attorney fees:

  • A party “knows or should know the relevant facts to establish a CIR claim when the CIR ends.”
  • “We conclude that the equitable doctrine of CIR is subject to a three-year statute of limitations [RCW 4.16.080(3)].  A party must sue to establish that the relationship existed within three years of the end of the relationship.”
  • K’s e-mails spanning 2003 to 2005 show that she was well aware of M’s relationship with D, and that K considered herself “single.”
  • There are no genuine issues of material fact.  K knew that her relationship with M ended more than three years before she filed her lawsuit in 2009.
  • A CIR may be “marital-like” but is not a marriage.  Fees can not be awarded based on need or ability.  “And, as for CR 11 sanctions based on intransigence, we conclude that the issues here are novel, complex, and no doubt charged with a bit of emotion.  We are uncomfortable affirming an award of fees and costs given this record.”

Fairfax v. Simpson No. 29790-0

domestic relations – adequate cause for change of custody – order establishing parentage

A request to modify child custody requires a showing of adequate cause, but a judgment and order of parentage may reserve the right of either parent to later request a residential schedule.

After giving birth to C, the mother received support from the State.  The State filed a paternity petition and a genetic test confirmed that F is the father.   The trial court entered a judgment and order of parentage declaring F as the father and designating the mother as custodian “solely for the purpose of other state and federal statutes.”  The order also provided that either parent later could move for a residential schedule.

Two years later, the mother and F entered into an agreement naming F as the custodial parent.  When the mother took C across the state without telling F,  he filed a petition for a residential schedule and parenting plan.  The trial court entered a temporary plan designating F as the custodian of C “solely for purposes of all other state and federal statutes which require a designation or determination of custody.”

The mother moved to dismiss arguing that the original parentage order was a final custody decree that could only be modified after a finding of adequate cause.  The trial court held that the original parentage order did not amount to a custody decree or parenting plan subject to modification, and denied S’s motion to dismiss.  The court awarded primary custody to F.

Division III affirmed the trial court:

  • The parentage order did not establish a parenting plan or residential schedule;  “It was not required to.”
  • “The right to request a residential schedule was reserved for either parent to make at a later time.”
  • “We conclude then that [F] had the right to petition the court for the residential schedule and parenting plan without the necessity of the adequate cause hearing required by RCW 26.10.032.”
  • The court had the authority to implement a final residential schedule and parenting plan “rather than treating the review as a modification.”

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