Jim Tobin was severely injured on the job and received worker compensation benefits from the Department of Labor and Industries for his injuries. Tobin sued a third party who was at fault for his injuries and recovered a settlement. The settlement allocated recovery between Tobin’s medical expenses, wage loss, and general damages. The Department argued that it was entitled to apply its lien for benefits paid against the entire settlement, rather than against the portion of the settlement that related to wage loss and medical expenses. The Board of Industrial Insurance Appeals agreed with the Department, but the superior court and the Court of Appeals agreed with Tobin. The Department sought review by the Washington Supreme Court, which was granted. Talmadge/Fitzpatrick associated on the appeal to the Washington Supreme Court.

In a 7-2 decision, the Supreme Court ruled that the Court of Appeals was correct. Our Supreme Court relied in part on United States Supreme Court precedent involving Medicaid liens which relate essentially to medical services that held such liens could only be applied to the medical recovery of any portion from a third party.

Under this very significant ruling, for work place injury cases, the Department’s lien for benefits paid to injured workers, benefits which essentially are medical benefits and wage replacement, extends only to those portions of the injured worker’s third party recovery relating to wage loss and medical expenses and not to general damages like pain and suffering.

Christopher Primeau was a diver hired to perform certain work for General Construction Co. (“GCC”) at the Texaco oil refinery in Anacortes. Mr. Primeau was killed in a dive. His estate brought suit for his wrongful death. GCC argued that Primeau was a seaman to whom the Jones Act, a federal law relating to injuries on the high seas, applies because the dive had originated from a barge owned by GCC. The trial court disagreed. GCC sought interlocutory review of the trial court’s decision.

Mr. Primeau’s counsel retained Talmadge/Fitzpatrick to resist GCC’s effort to secure interlocutory review. The Court of Appeals Commissioner ruled that the company failed to establish the necessary grounds to secure interlocutory review by failing to show that the trial court committed obvious or that further proceedings would be useless without an immediate appeal.

This case is typical of many cases in which Talmadge/Fitzpatrick is involved addressing interlocutory review of trial court decisions. Washington appellate courts disfavor interlocutory review, i.e. appellate review before there is a final judgment. Talmadge/Fitzpatrick can assist trial counsel both in securing and resisting interlocutory review.

Little Mountain Estates is an upscale Washington manufactured housing community. When Little Mountain was first being developed in 1990-91, it struggled for tenants because of unstable economic and political factors. To fill the park, Little Mountain offered a 25-year rent-controlled lease, far beyond the one-year leases required by the Mobile Home Landlord Tenant Act (MHLTA). In exchange, if the tenants sold their homes and assigned their leases, those leases would convert to MHLTA-compliant one or two year terms.

However, many years later some homeowners were planning to sell their homes and move away. They saw an economic benefit to be gained from being able to market the 25-year rent controlled leases to potential buyers. So they sued Little Mountain, claiming that the clause converting the leases to one or two years on assignment violated the MHLTA.

The superior court agreed with Little Mountain and dismissed the case. The tenants appealed. Talmadge/Fitzpatrick defended the trial court’s decision at the Washington State Court of Appeals Division I. The Court of Appeals reversed the trial court, but the Washington Supreme Court granted Talmadge/Fitzpatrick’s petition for review.

The Supreme Court agreed with Little Mountain: if a lease under the MHLTA provides a term longer than the required one year, and the parties agree that the term will convert to a one-year term or longer upon assignment, that lease provision does not violate the MHLTA.

This is a breach of contract action involving the sale of Travis Flateau’s motorcycle modification business to Dan Moore. The sale was governed by two agreements, neither of which contained a venue provision. But both agreements called for notice to be mailed to Flateau at a Redmond address and to Moore at a Yakima address.

After Moore notified Flateau by mail that he was terminating the parties’ agreements, he filed suit in the Yakima County Superior Court. He alleged breach of contract and promissory estoppel, and sought declaratory and injunctive relief. At the time Moore commenced his lawsuit in Yakima County, Flateau resided in King County. Moore did not immediately serve Flateau with the complaint. Flateau, however, then filed suit in the King County Superior Court alleging breach of contract. The parties eventually stipulated to a stay of the King County action pending the appearance of Flateau in the Yakima County action.

The Yakima County trial court denied Flateau’s motion for change of venue, finding that it was unclear where Flateau resided and that a portion of Moore’s claim arose in Yakima County because it involved alleged damage to personal property – Moore’s business. Talmadge/Fitzpatrick was retained to assist Flateau and filed a motion for discretionary review. The Court of Appeals, Division III, granted review.

In a published opinion, the Court of Appeals determined that Moore’s action was one for breach of contract seeking economic losses rather than one for injury to Moore’s personal property. Flateau was thus entitled to be sued in King County, where he lived, under the general venue statute. The Court also awarded Flateau his attorney fees and costs for both trial and appellate court proceedings for successfully changing venue to the proper county. The Court remanded to the trial court to change venue to King County and to award Flateau his attorney fees and costs.

Barbara Corey was a dedicated and skilled deputy prosecuting attorney in the Pierce County Prosecutor’s Office who organized the first union for deputies in that office and rose to serve as the assistant chief criminal deputy attorney. However, because of internal political issues in the Prosecutor’s Office, Prosecutor Gerry Horne in 2004 chose to dispense with her services as assistant chief criminal deputy and broke his promise to her that she would never be dismissed without “just cause.” To compound his failure to live up to his commitment to Corey, he disclosed information to the media about Corey that he knew was false and that was designed to harm Corey’s reputation in order to enhance his political position. Corey's sterling career and reputation were seriously harmed.

Corey sued Horne and Pierce County for negligent dissemination of unsubstantiated information, defamation, defamation by implication, false light, outrage, and breach of a contract formed by promissory estoppel. Upon proper instructions to the jury on all theories, after a three week trial, the jury returned $3.1 million verdict in her favor based on all five claims.

The County appealed, at which point Talmadge/Fitzpatrick joined to represent Corey in defending the verdict. Although the Court of Appeals concluded that the tort of negligent dissemination of unsubstantiated information does not exist in Washington, it affirmed the verdict because substantial evidence supported each of the intentional tort claims, which each independently justified the verdict.

In this professional discipline case, Dr. Douglas Seymour owned and operated his dental practice from 1991 to 2005. Based on the complaint of a former employee, an investigator from the Department of Health appeared at Dr. Seymour's business in 2002 demanding patient records and taking down information about office operations while searching the non-public areas of the business. The 2-year investigation uncovered that Dr. Seymour's office manager, Deborah Shanks, had carried on a complex and covert system of billing fraud of which Dr. Seymour had been unaware. However, the investigator had no authority to conduct the search, because she had not sought nor recieved a determination of merit from the Dental Quality Assurance Commission (DQAC). Such a search is the equivalent of a police officer searching private property without a warrant.

Dr. Seymour moved to dismiss the statement of charges based on the Washington and Federal constitutional prohibitions against illegal search and seizure. DQAC refused, and proceeded with the disciplinary hearing. Although DQAC agreed that Dr. Seymour was not involved in the fraud, it found Dr. Seymour responsible for failing to unconver Shanks' billing scheme.

Talmadge/Fitzpatrick undertook representation of Dr. Seymour at the Court of Appeals. In a published opinion, the Court held that an investigation undertaken without a statutorily mandated determination of merit violates prohibitions against search and seizure. The Court found inadmissible any evidence gathered before the determination was issued. DQAC declined to petition the Washington Supreme Court for review.

In this medical malpractice and corporate negligence case, Katherine Ripley sued to recover damages for the injuries she received when her surgeon, Dr. William Lanzer, failed to notice the scalpel blade he used during her arthroscopic knee surgery had detached from the handle during her surgery and become lodged in her knee. Ripley’s surgery was performed at Evergreen Medical Center Hospital and Evergreen supplied and maintained all of the surgical equipment.

Dr. Lanzer and Evergreen moved to summarily dismiss Ripley’s claims in the trial court after she withdrew all of her disclosed experts as trial witnesses, arguing she failed to support her claims with expert medical testimony. In response, Ripley argued that she did not need a medical expert to support her claim because Dr. Lanzer’s failure to notice that the scalpel blade had detached from its handle and remained lodged in her knee when he closed the surgical site raised the inference of negligence under the doctrine of res ipsa loquitur. That doctrine permits an inference of negligence from the occurrence itself, so that the case can go to the jury. The trial court granted the motion to dismiss on the grounds that Ripley failed to provide expert medical testimony to support her claims and that the res ipsa loquitur doctrine did not apply. Talmadge/Fitzpatrick was retained to handle the appeal.

In an unpublished opinion, the Court of Appeals, Division I, determined that Ripley was not required to provide expert medical testimony because res ipsa loquitur applied to her claims and supplied the necessary inferences of negligence and causation. The Court remanded Ripley’s medical malpractice claim for further proceedings in the trial court. But the Court affirmed the summary judgment dismissal of Ripley’s corporate negligence claim against Evergreen because it determined expert medical testimony is required to establish the standard of care.

The Court’s opinion is significant because it re-affirms the viability of res ipsa loquitur in Washington and makes clear that the inference of negligence extends to the duty, breach, and causation elements of a negligence claim.

In 2000, Hawkeye Kinkaid was overserved at the Moose Lodge bar in Bellingham by the bartender, who was also his girlfriend. Upon leaving the Moose Lodge bar, Kinkaid allowed his van to cross the center line on La Bounty Road plowing into the vehicle operated by the Fausts, a family visiting Bellingham from New York City. Kinkaid was killed and the occupants of the Faust vehicle were horribly injured. A young child was rendered a paraplegic. Forensic experts estimated that Kinkaid’s BAC was .32% at the time of the accident. Kinkaid’s bartender/girlfriend admitted that she cut him off at the Moose Lodge bar because he was drunk and belligerent.

The Fausts brought suit in the Whatcom County Superior Court where they secured a $14 million jury verdict in their favor. The Moose Lodge appealed the verdict to the Court of Appeals, which reversed the judgment on the verdict of the jury because the Court of Appeals believed there was insufficient evidence to demonstrate that Kinkaid was under the influence of alcohol at the time he was served in the Moose Lodge bar. Faust petitioned the Washington Supreme Court for review which was granted. The Supreme Court reversed the Court of Appeals, concluding that a jury could infer a person was under the influence of alcohol at the point of service from observational and forensic evidence about the person after the service. In this case, the Court concluded that the bartender/girlfriend’s admission that Kinkaid was cut off because he was under the influence, autopsy results, Kinkaid’s likely BAC results, and his post-service behavior all were a basis for the jury’s inference he was under the influence of alcohol when he was served at the Moose Lodge bar.

Talmadge/Fitzpatrick is delighted that the Fausts have finally received the justice to which they were entitled in this case. While money cannot fully compensate the Fausts for the injuries they have sustained in this terrible accident, their patience and courage have been inspirational.

Ronald Lunsford contracted the invariably fatal asbestos-related cancer, mesothelioma, as a result of his expose to asbestos brought home by his father when he worked as an insulator at the Texaco oil refinery in Anacortes, Washington in 1958. Lunsford sued various suppliers of asbestos. Lunsford was successful in persuading the Court of Appeals to adopt a new common law principle that take-home exposure to asbestos by family members of insulation workers was actionable.

On remand, however, Saberhagen argued that the principle newly adopted by the Court of Appeals could only be applied prospectively and not retroactively to the time during which Lunsford’s father was exposed to asbestos. The trial court agreed with Saberhagen and dismissed Lunsford’s strict product liability claims. The Court of Appeals reversed the trial court’s decision, holding that new common law principles are retroactive.

Talmadge/Fitzpatrick was retained to assist Mr. Lunsford in connection with Supreme Court review. The Supreme Court granted review of the Court of Appeals decision to resolve possible conflicts in its cases regarding retroactivity of new common law principles. In its opinion, the Supreme Court agreed with the Court of Appeals that new common law principles are to be applied retroactively unless, at the time of the adoption of the new principle, the appellate court limits applicability of the new rule. The Washington Supreme Court did not limit its adoption of the strict product liability principles of the Restatement of Torts (Second) § 402A in 1975 to prospective application. Thus, the strict product liability principles of § 402A for take home exposure must be applied retroactively.

The Legislature twice passed legislation stating that mobile home parks cannot be compelled to connect to local sewer systems unless their septic systems are failing. The Legislature also made clear that local governments could not impose stand by charges on mobile home parks for sewer systems they did not use if the mobile home parks had functioning septic systems. Despite these laws, Spokane County imposed upon Parrell-Sister MHC, LLC, that operated the Pinecroft Mobile Home Park, an assessment for the capital facilities expense of the County’s sewer system. Pinecroft challenged that assessment in court, but the trial court ruled in favor of the County. Talmadge/Fitzpatrick associated with the Olsen Law Firm on appeal.

The Court of Appeals, Division III, interpreted the most recent statutory provision regarding mobile home parks, septic systems, and standby charges to foreclose the capital facilities fee imposed by Spokane County on Pinecroft. The Court determined that the language of the statute was plain and it barred the County’s fee.

Kenny Salvini was terribly injured while using a ski jump at the Summit at Snoqualmie. The Summit at Snoqualmie erected this ski jump without professional involvement when one of its staff “eyeballed” the dimensions for the jump, piling up snow for the jump’s ramp and landing area. Salvini overshot the landing area for the jump because of the improper design and was rendered a paraplegic from his injuries. Salvini’s was only the most recent in a number of similar serious injuries on the jump.

The case was tried to a King County Superior Court jury that rendered a net verdict in excess of $14 million in Salvini’s favor. The jury found Salvini 55% at fault and Ski Lifts, the owner of the Summit at Snoqualmie, 45% at fault. Ski Lifts appealed the judgment to the Court of Appeals, Division I. The Salvinis and their trial counsel, Jack Connelly and James Beck, retained Talmadge/Fitzpatrick to assist on appeal.

In an unpublished opinion, the Court of Appeals affirmed the trial court’s judgment in all respects. The Court of Appeals determined that the trial court’s jury instructions on negligence and the inherent risk of the sport of ski jumping were proper, and the trial court did not abuse its discretion in admitting evidence of other similar incidents on the ski jump.

A sink hole developed below a waterway extending from the Lewis River to a power plant operated by the Cowlitz County Public Utility District (PUD) in southwest Washington. The sink hole collapsed causing substantial damage to the power house and prohibiting the generation of electricity by the PUD at the site for a considerable period of time. The PUD’s various insurers largely paid for the damage occasioned by the sink hole collapse. However, TIG Insurance refused to pay for its share of the damage.

In a series of summary judgment rulings, the United States District Court for the Western District of Washington at Tacoma, the Honorable Ronald Leighton, ruled that TIG was obligated to provide coverage to the PUD because its policy “followed the form” of a policy issued by another insurer in the layers of coverage and that prior insurance policy, in fact, provided coverage to the PUD. Ultimately, the District Court entered a judgment for the PUD against TIG in the amount of $30 million. TIG appealed the decision to the United States Court of Appeals for the Ninth Circuit.

Talmadge/Fitzpatrick was retained by the PUD to assist in the preparation of the briefs for the Ninth Circuit and to argue the case. The United States Court of Appeals for the Ninth Circuit issued a memorandum opinion affirming the District Court coverage determination.

This case involves a petition to establish parentage, brought on behalf of a minor child by his alleged father, D.M.G. At the time the child was conceived, his mother T.M.F. was engaged in a sexual relationship with D.M.G. and a sexual relationship with K.M.L. At different times, she told both men they were the child’s father. Although no paternity test was ever performed to confirm K.M.L. was the child’s father, K.M.L. acknowledged paternity in 2000. The Department of Social & Health Services Division of Child Support entered administrative orders in 2002 and 2004 establishing K.M.L.’s financial responsibility for the child Those orders were superseded in December 2005 when a trial court entered findings of fact, conclusions of law, and a judgment granting K.M.L. custody of the child and ordering T.M.F. to pay child support.

Before her tragic death in 2006, T.M.F. confided in her parents that she doubted K.M.L. was her son’s father and that she instead believed the child’s father was D.M.G. Subsequent testing confirmed a 99.9478% probability that D.M.G. is the child’s biological father. In May 2007, D.M.G. filed a petition to establish parentage and requested a Guardian Ad Litem (GAL) be appointed to represent the child. K.M.L. moved to dismiss the petition. The trial court initially denied the motion. On reconsideration, the trial court ruled K.M.L.’s acknowledgement in 2000 triggered the two-year statute of limitations created when RCW 26.26.540(2) became effective in June 2002 and dismissed the petition as untimely. Talmadge/Fitzpatrick associated with attorney Joseph J.M. Lombino to represent D.M.G. on appeal.

In a published opinion, the Court of Appeals, Division II, agreed that D.M.G.’s petition was untimely because it was brought more than two years after K.M.L.’s acknowledgement of paternity. But the Court concluded the trial court denied the child’s constitutional due process right to be a party in an action determining his paternity by dismissing the petition without appointing a GAL to represent him. In doing so, the Court focused on the child’s constitutional interest in an accurate determination of his parentage and noted the legislature lacked the authority to infringe on that right. The Court remanded for appointment of a GAL to represent the child’s interests in determining whether genetic testing should be conducted and whether the child should initiate a proceeding to adjudicate his parentage. The Court awarded D.M.G. his attorney fees and costs on appeal as the prevailing party.

South Tacoma Way, LLC operates Performance Radiator, a radiator distributor business. In late 2005, South Tacoma sought to purchase its current building from the Staub family, which had owned the property since the 1960’s. South Tacoma needed to be able to seismically retrofit the Staub building, and required use of the adjoining alley to do so. Tim Pavolka of South Tacoma learned that until recently, the alley had been owned by the Washington State Department of Transportation (DOT). When Pavolka called DOT inquiring about the alley, DOT responded that the alley had been sold to major downtown developer Sustainable Urban Development (SUD) in a private transaction. Pavolka knew that RCW 47.12.063(2)(g) required notice to all adjoining landowners, an opportunity to object and to receive a request for public auction, before a private sale was allowed. DOT sent a belated notice of the transaction to the Staubs, hoping for a retroactive waiver of their statutory right to object and to receive a request a public auction. When the Staubs objected and refused to waive their statutory rights, DOT replied that SUD was a bona fide purchaser for value, and that fact excused DOT from its obligation to comply with the statute.

South Tacoma filed a declaratory judgment action asking the King County Superior Court to unwind the sale and order a public auction as required by RCW 47.12.063(2)(g). South Tacoma argued that because DOT violated the statute, its sale to SUD was ultra vires and void. SUD and DOT joined together in opposing the action. The superior court granted summary judgment to SUD and DOT, finding that SUD was a bona fide purchaser for value and that it would be inequitable to require the defendants to unwind the sale. Talmadge/Fitzpatrick was retained to represent South Tacoma on appeal.

In a published opinion, the Court of Appeals Division II reversed the superior court judgment, holding that DOT’s sale in direct violation of the statute was in fact an ultra vires action. In an issue of first impression, the Court also held that the bona fide purchaser doctrine could not operate to cure an ultra vires sale of state-owned land.

Walter Jorgensen and Eve Johnson (Jorgensen/Johnson) requested public records from the Port of Olympia (Port) relating to its lease of public facilities to the Weyerhaeuser Company (Weyerhaeuser). The Port refused to fully disclose the documents or only partially provided them, claiming they were exempt from disclosure under the Public Records Act because the deliberative process and research data exemptions to the Act applied.

Jorgensen/Johnson filed suit against the Port, alleging the Port violated the Act. The Port eventually presented the trial court with 2,409 pages of sealed documents that it claimed were exempt from disclosure along with related privilege logs and requested in camera review. Weyerhaeuser intervened, arguing specific documents were exempt from disclosure as proprietary, private, and confidential. The trial court found a number of documents to be disclosable in their entirety or with redactions, but it also found that most of them fell within the deliberative process and research data exemptions to the Act. The trial court found the Port had willfully withheld the documents for a total of 123 days and set the penalty for such wrongful withholding at $60 per day. The court also awarded Jorgensen/Johnson their attorney fees and costs. Talmadge/Fitzpatrick represented Jorgensen/Johnson in the penalty hearing and later when they appealed.

On appeal, Jorgensen/Johnson argued that the trial court misconstrued the deliberative process exemption banning the public’s access to the challenged records even though the Port’s lease negotiations with Weyerhaeuser concluded in 2005. They also argued the trial court similarly misconstrued the research date exemption by permitting the Port to withhold the challenged records without a clear showing that public harm and private gain would result from disclosure.

In a published decision, the Court of Appeals, Division I ruled that the Port’s reliance on the deliberative process exemption was improper because the Port had already executed the lease with Weyerhaeuser at the time of the Jorgensen/Johnson PRA request. Once an agency implements a policy or recommendation, records pertaining to that policy or recommendation no longer fall within the deliberative process exemption. The Court reversed and remanded to the trial court to determine whether any of the other exemptions claimed by the Port applied and whether a more stringent penalty was warranted for the Port’s wrongful withholding of the additional documents. The Court granted Jorgensen/Johnson their attorney fees and costs on appeal.

Azalea Gardens is a mobile home park with rules allowing the park owner to approve any construction that takes place on the park premises. The Stockards proposed to add a very large room to their mobile home. They initially sought approval from the Azalea Gardens owner for the room. That approval was denied because the room was too large and would make the building inconsistent with the size of other buildings in Azalea Gardens. The Stockards nevertheless decided to proceed with construction and obtained a building permit from Pierce County. Azalea Gardens was able to persuade Pierce County to issue a stop work order when the County was made aware that the Stockards had proceeded without the approval of the Azalea Gardens owner.

The Stockards filed suit against Azalea Gardens alleging that they were entitled to build the addition to their home. They also sought damages. Azalea Gardens moved for summary judgment, citing to the trial court the Azalea Gardens park rules. Without complying with the court rule that requires 28 days notice to a party for a motion for summary judgment, the Stockards filed a cross-motion for summary judgment on their theories of the case. The trial court allowed them to proceed with the cross-motion even though they had failed to give appropriate notice to Azalea Gardens. The trial court ruled that the Stockards were entitled to build the addition to their building. The trial court, however, ruled that the Stockards were not entitled to recover any civil damages.

Talmadge/Fitzpatrick joined with attorney Walter Olsen in the representation of Azalea Gardens on appeal. In an unpublished opinion, Division II of the Court of Appeals ruled that the trial court was not entitled to consider a cross-motion for summary judgment without giving a full 28 days notice to the opposing party in the case. The Court reversed the trial court’s order on summary judgment in favor of the Stockards and awarded attorney fees on appeal to Azalea Gardens.

Attorney Charles Kimbrough was asked by the Foulons to represent them in a property-related dispute. Kimbrough advised the Foulons orally of his charges for legal services and then undertook to represent them in their boundary dispute with their neighbors. Kimbrough subsequently sent the Foulons a written fee agreement incorporating the essence of his conversation with them regarding his representation, but that fee agreement added two additional provisions about which they had not spoken, a provision that allowed Kimbrough to recover attorney fees in the event he was compelled to seek recovery of the fees from the Foulons in court and a provision relating to the ownership of the file for the case. Kimbrough successfully represented the Foulons, but they then refused to pay him for his services. Kimbrough initiated an action against the Foulons for his fees due and the Foulons counterclaimed against him for legal malpractice and argued that he was not entitled to recover any fees under the written fee agreement, and was limited to reasonable fees under their oral agreement.

A judge of the King County Superior Court invalidated the written fee agreement between Kimbrough and the Foulons. The judge ruled that the Foulons were entitled to recover their attorney fees for invalidating the written fee agreement. The case was then assigned to a different judge for trial. At trial, Kimbrough was successful in recovering his attorney fees pursuant to the oral agreement that he had with the Foulons. That judge refused to invalidate the earlier judicial ruling awarding fees to the Foulons for invalidating the written fee agreement. The judge also declined to award Kimbrough prejudgment interest on the fees to which he was entitled from the Foulons. The court also ruled, however, that the Foulons entered the relationships with Kimbrough never intending to pay him for his services, and that Kimbrough did not commit any legal malpractice in his representation of the Foulons.

Talmadge/Fitzpatrick associated with attorneys Michael Caryl and Sam Franklin on appeal for Kimbrough. In an unpublished opinion, Division I of the Court of Appeals affirmed the decision of the trial court regarding the validity of the written fee agreement. The court determined that too much time had elapsed between the Kimbrough/Foulon oral and written agreements; Kimbrough’s indication to the Foulons that he would withdraw from their representation unless they signed the written fee agreement was enough to invalidate it. However, the Court reversed the decision that the Foulons were entitled to recover any attorney fees in connection with the invalidation of the written agreement because the Foulons ultimately were not the prevailing party in the case, Kimbrough having prevailed at trial. The court also reversed the trial court’s decision not to allow Kimbrough prejudgment interest on the fees to which he was entitled.

Bing Kong Chan and Feng Liang lived in Chan’s separate property home during their marriage. Chan speaks little English. In 1992, one of Chan’s daughters tricked him into signing a quit claim deed, giving his house to his five children. His daughter told him that the document was a will. Liang knew that the house had been quit claimed to the children.

Chan filed for dissolution in 2003. During the dissolution trial, he and another daughter testified that Chan had been defrauded into quit claiming his separate property home to the children. Chan also indicated in court documents that he might file a quiet title action to recover the home in the future. Nevertheless, he and Liang stipulated that the home would not be included in the decree of dissolution.

After the dissolution decree was entered, Chan filed a quiet title action. The daughter who had defrauded Chan confessed to her actions in a declaration. Liang moved to reopen the dissolution under CR 60(b)(3), claiming that the daughter’s declaration was “new evidence.” The trial court reopened the dissolution decree, allowed Liang to intervene in the quiet title action, an awarded her a $30,000 equalization payment.

Chan retained Talmadge/Fitzpatrick to represent him on appeal. In an unpublished opinion, the Court of Appeals, Division I, reversed the trial court and reimbursed Chan. The Court agreed that a declaration containing statements that were in evidence at trial cannot constitute “new evidence” for CR 60(b)(3) purposes.

Rolando Hernandez was a highly praised and award-winning mechanic for the City of Vancouver from 1995 to 2002. He is of Mexican national origin, but has been a lawful permanent resident of the United States for many decades. In 1999, Hernandez received a promotion to a position in the Fire Shop, working on emergency vehicles. However, from the moment he began work at the Fire Shop, his work experience changed dramatically. He was ignored and shunned by the other mechanics, given the worst work assignments despite his excellent training, experience, and skills, and treated unfairly by his supervisors. Unbeknownst to Hernandez, two of his direct supervisors had made racist comments against Hispanics behind closed doors.

The mistreatment of Hernandez so poisoned the atmosphere in the Fire Shop that two of his Caucasian co-workers quit because of it. One such co-worker, in his 2001 exit interview, offered the unsolicited comment that he could not tolerate the Fire Shop because of the mistreatment of Hernandez due to his race. Hernandez was unaware that his mistreatment was race-related until 2002, when he finally became suspicious. But as soon as he complained to the City Human Resources staff, the mistreatment intensified, and he was suddenly subjected to constant discipline about his work. Eventually, he was forced to accept demotion out of the Fire Shop, or face termination.

Hernandez filed retaliation, hostile work environment, disparate treatment, and conspiracy claims against the City in federal court. The district court granted the City’s motion for summary judgment on all of Hernandez’s claims, stating that he had not produced enough evidence for any of his claims to go to trial.

After excellent briefing on appeal by Thomas Boothe, Talmadge/Fitzpatrick associated with Boothe to argue the case to the Ninth Circuit Court of Appeals. The Ninth Circuit reversed the trial court on every single claim, ruling that Hernandez had produced more than enough evidence to proceed to trial.

Marcia Magee claimed that a manager at Rite Aid sexually harassed her. She filed for an antiharassment order against the manager personally. She later sought civil damages from the manager and Rite Aid and entered into a settlement agreement with the company and the manager. Several years later, Magee filed a formal application for industrial insurance benefits. She claimed that the application for an antiharassment order put the company, a self-insurer, on notice that she had a worker compensation claim.

The Board of Industrial Insurance Appeals and the King County Superior Court disagreed, finding that Magee failed to timely apply for industrial insurance benefits. Magee appealed to the Court of Appeals, Division I, and, in an unpublished opinion, the Court affirmed the trial court and the Board. The Court followed the Washington Supreme Court’s Nelson decision in deciding that an employer or the Department of Labor and Industries is not put on notice of the existence of a claim for industrial insurance benefits by an injured worker until such time as the injured worker makes a specific demand on the employer or the Department for compensation or advises that he or she is seeking medical treatment. As Magee’s application for an antiharassment order neither indicated she was seeking medical treatment nor made a demand on Rite Aid for compensation, her notice was ineffective and her application for industrial insurance benefits was untimely. Talmadge/Fitzpatrick worked closely with Mary Shima of Reeve Shima in connection with this case.

The Department of Labor and Industries claimed that various packing houses that purchased salal, ferns, evergreen boughs, and other products that grew naturally in the forests for the floral industry were farm labor contractors as to the pickers of those products. Six packing houses filed a declaratory judgment action in the Mason County Superior Court challenging the application of the Farm Labor Contractor Act to them. The trial court, the Honorable James Sawyer, III, ruled that the Act did not apply to the packing houses because they were not agricultural employers. The Act covered agricultural employment, including forestation and reforestation. The Court concluded the packing houses were not involved with a product that was either agricultural in nature or forestation and reforestation. On appeal, the Department abandoned its position that an agricultural activity was present and focused on forestation and reforestation. However, again, the definition of forestation and reforestation requires significant human cultivation. The Court of Appeals, Division II, agreed with the trial court that the picking of products in the forest that grew there naturally there did not constitute forestation or reforestation. The packing houses are not subject to Washington’s Farm Labor Contractor Act.

The Fausts, a family from New York City, were severely injured in an automobile accident in Bellingham when Hawkeye Kincaid, who had been drinking at the Bellingham Moose Lodge, drove his van across the center line of a road and struck them. The Fausts hired James DeZao, a New Jersey lawyer, to represent them in connection with their personal injuries claim. DeZao had a long standing agreement with another New Jersey lawyer, Paul Hirsh, to prepare and try various cases. Both DeZao and Hirsh participated in aspects of the Fausts’ case, readying it for trial.

DeZao determined that he no longer wanted Hirsh to participate in the preparation and trial of the Fausts’ case in Whatcom County against the Moose Lodge. Upon his discharge from the case, Hirsh sued DeZao in New Jersey and later filed an attorney lien in Washington against any recovery by the Fausts against the Moose Lodge.

DeZao retained the Talmadge Law Group to assist him in connection with the Hirsh attorney lien claim. We moved to quash the attorney lien in the Whatcom County Superior Court and the trial court granted that motion. Hirsh appealed the trial court’s decision to the Court of Appeals, Division I. In an unpublished opinion, the Court of Appeals affirmed the trial court’s decision. The Court concluded that there was insufficient evidence of an implied contract between the Fausts and Hirsh so that an attorney lien was not available to Hirsh.

Matthew Skinner was a partner in business with Andrew Crow and Gary Holgate. The partners had a falling out and Skinner ran into financial troubles. Skinner filed for bankruptcy protection. However, Skinner did not list among the bankruptcy assets his interest in the various businesses he had with the other partners. Moreover, he affirmatively represented to the bankruptcy court that he had no assets.

Subsequent to the issuance of a discharge by the bankruptcy court to Skinner, Skinner commenced an action in state court against his former partners for damages. When the bankruptcy trustee discovered Skinner’s lawsuit, the trustee asked the bankruptcy court to reassume jurisdiction over the estate. That court allowed Skinner’s claim to be purchased and the case was then remanded to the Thurston County Superior Court.

Skinner’s former partners moved to dismiss Skinner’s action on the basis of judicial estoppel. The trial court agreed and dismissed his case. Skinner appealed.

The Talmadge Law Group associated with Rich Paroutaud of the law firm of Mano, McKerricher & Paroutaud, Inc., P.C. in the representation of Holgate on appeal. In a published opinion, the Court of Appeals, Division II, affirmed the trial court’s dismissal, ruling that Skinner’s claims were barred by the principles of judicial estoppel. Skinner could not affirmatively represent to the bankruptcy court that he had no assets and then proceed in state court to seek damages from his former partners because the process of the courts is offended by parties taking irreconcilable positions in litigation. Skinner’s conduct was harmful to other creditors because his action in state court was filed more than a year after the issuance of the discharge by the federal bankruptcy court. The bankruptcy court could not set aside the discharge in bankruptcy once a year has expired from the entry of the discharge.

Talmadge Law Group joined with Lane Powell PC in representing Wells Fargo Bank and its sister Wells Fargo Bank of the West, in an action in which the Washington Supreme Court was asked to decide whether to adopt the approach of the Restatement (Third) of Property in determining the availability of equitable subrogation in refinancing transactions. Yukio had Sugihara used his (very expensive) home as security for a series of loans. The first was from Washington Mutual, for approximately $500,000. The second and third were from Bank of America (for approximately $500,000 and $1,000,000, respectively), and made to his businesses; Sugihara guaranteed the loans, and secured his guarantee with his home. The fourth was from Wells Fargo Bank, for approximately $500,000 (the money used to pay off the first B of A loan). The fifth, and final loan, was from Wells Fargo Bank of the West, for $1,000,000, of which approximately $500,000 was used to pay off the balance owing on the original (and senior) Washington Mutual loan.

By the time of the last loan, Sugihara's companies were in default on their loans, and Suigiaha was unable to meet his guarantee obligations. Bank of American began foreclosure proceedings. The portion of the dispute that ended up in the Supreme Court involved the $1,000,000 loan from Wells Fargo Bank of the West. Wells Fargo sought to be equitably subrogated to the extent of its payoff of the Washington Mutual loan. Bank of America claimed that, because Wells Fargo was aware of Bank of America's intervening loan at the time Wells Fargo made its loan, Wells Fargo should be denied subrogation. The trial court ruled in favor of Wells Fargo. The Court of Appeals reversed, feeling itself bound by language in Kim v. Lee, 145 Wn.2d 79, 31 P.3d 665 (2001), indicating that a refinancer should be denied subrogation if it had record notice of the existence of an intervening lien. The Supreme Court granted Wells Fargo's petition for review, and voted 6-3 to reinstate the trial court's judgment in Wells Fargo's favor. In an exhaustive opinion, Justice Richard Sanders reviewed the history of equitable subrogation and concluded that the traditional prohibition against subrogation, when the refinancing party has record notice of an intervening lien, should be abandoned in favor of the Restatement (Third)'s approach, under which the refinancer is entitled to subrogation unless the intervening lienor can show it has been materially prejudiced by the terms of the refinancing transaction. Because Bank of America failed to carry its burden to show such prejudice, Wells Fargo was entitled to be subrogated to the extent of its payoff of the Washington Mutual loan.

Levius and Debbie Davis financed the purchase of a new home with a loan from ComUnity Lending, Inc, which sold the loan to Wells Fargo Home Mortgage Company shortly after closing. One year later, Wells Fargo began to charge the Davises additional property taxes and fees for their reserve account, based on a notation referencing an adjacent parcel that the Davises in fact did not own. These excess reserves increased the Davises monthly payments. When the Davises were late in making some of these increased payments, Wells Fargo imposed late fees. The Davises wrote Wells Fargo several checks intended to bring their account current, but Wells Fargo ignored an instruction to hold the checks and instead cashed them immediately; when the checks were returned for insufficient funs, Wells Fargo imposed yet more fees. The Davises filed for Chapter 13 bankruptcy. Wells Fargo, as a creditor in the bankruptcy, continued to claim entitlement to the fees, even though they were traceable to Wells Fargo's erroneous increase in the Davises' reserve requirements, based on Wells' misreading of the adjacent parcel reference. Ultimately, Wells Fargo waived its claim to the fees, pursuant to a loan modification agreement entered into after the Davises had dismissed their bankruptcy.

The Davises sued Wells Fargo, asserting a variety of claims, including for negligence and emotional distress, and sought $2,000,000 in damages. The trial court dismissed the tort claims before trial, and Wells Fargo then settled the remaining claims for $21,900 (reflecting the $18,000 in refinance and bankruptcy fees actually incurred by the Davises). The Davises appealed the dismissal of their tort claims, and the Talmadge Law Group joined with Lane Powell PC in defending Wells Fargo. The Court of Appeals affirmed, applying the Washington Supreme Court's recent decision in Alejandre v. Bull, 159 Wn.2d 674, 153 P.3d 864 (2007), in which the court had reaffirmed the "economic loss" rule's limitations on the ability to recover damages in tort for losses that arise out of a contract relationship.

Frank Caraska was a crew member aboard the ferry Klahowya. A passenger at the Fauntleroy terminal’s ticket booth was drunk and unruly, making odd statements to all of the persons waiting to purchase tickets. The Washington State Ferries (WSF) personnel at the ticket booth sold the passenger a ticket. He then proceeded down the dock to the ferry. WSF had a policy requiring ticket personnel to advise the mate on board a ferry if a passenger was drunk, unruly, or otherwise disruptive, in order to enable the mate and the crew to prepare for such a passenger. This unruly passenger punched Caraska seriously injuring him. Caraska filed an action in the King County Superior Court against the passenger and WSF under the Jones Act and the general maritime doctrine of seaworthiness. Caraska obtained a default judgment in excess of $400,000 against the passenger. The trial court, however, concluded that Caraska failed to make a case against WSF both as to his Jones Act and unseaworthiness claims.

The Talmadge Law Group represented Caraska on appeal. We argued to the Court of Appeals that the burden of proof in a Jones Act claim is very light and Caraska established his claim of seaworthiness. The Court of Appeals, Division I, agreed with our argument, reversing the trial court’s judgment of dismissal in an unpublished opinion. The Court of Appeals remanded the case for further proceedings.

Sherron Associates Loan Fund V sued Robert Saucier in Spokane County Superior Court and obtained a judgment against him. When Sherron Associates’ collection efforts against Saucier were frustrated both in the State of Washington and in Nevada where Saucier now lives, Sherron Associates filed an entirely new lawsuit against Saucier and various Galaxy Gaming corporations, the entities in which Saucier had a business interest. After attempting to serve the Galaxy corporations in other states, Sherron Associates ultimately tried to serve them by substituted service and publication in Washington. Sherron Associates Loan Fund V, however, had ceased to exist as a limited liability corporation under Washington law. Nevertheless, it obtained a default judgment against Saucier and the various Galaxy Gaming corporations. Saucier and the Galaxy Gaming corporations filed a CR 60 motion to vacate the default judgment. When the fact that Sherron Associates no longer was a valid Washington LLC was pointed out to the court, the trial court permitted Sherron Associates to amend its complaint and the default judgment to name a new Sherron Associates corporation that was allegedly the assignee of any interest of Loan Fund V. The trial court also changed the amount of the default judgment. The trial court vacated the default judgment in part, but it left Saucier and two of the Galaxy Gaming corporations as debtors on the default judgment.

The Talmadge Law Group PLLC was retained on appeal to represent Saucier and the Galaxy Gaming corporations. On appeal, we argued that the default judgment could not stand because it was void: the trial court lacked jurisdiction over the parties where service was improper, the trial court lacked subject matter jurisdiction over the case because the nature of the case was identical to that brought in Spokane County and principles of res judicata barred the claim, and the default judgment was improper because Sherron Associates could not be a valid plaintiff where the LLC ceased to exist. The Court of Appeals agreed basing its decision on the fact the LLC ceased to exist, and reversed the default judgment against Saucier and the Galaxy Gaming corporations. The Court denied fees at trial and on appeal to Saucier and the Galaxy Gaming corporations.

Todd Shipyards Corporation filed for bankruptcy protection in 1987. Prior to that time, Herring was an employee of a subcontractor at Todd’s Seattle shipyard. Herring contracted asbestosis and, later, mesothelioma. Todd did not give personal notice of the bankruptcy to Herring because he was not a known Todd creditor. He received notice by publication of Todd’s bankruptcy petition. Herring sued a number of entities for his asbestosis in 1989, but not Todd. That case was settled. He later sued various entities for his mesothelioma, but not Todd, initially. Finally, in 2002, he amended his complaint to include Todd. Todd defended Herring’s suit on the basis of its immunity from suit due to the discharge in bankruptcy. The trial court dismissed Herring’s claim against Todd because of the immunity afforded Todd by the discharge, rejecting his argument that he was not properly notified. Federal bankruptcy law only required a debtor to examine its own business records to determine who was a known creditor entitled to personal notice.. The Court of Appeals reversed the trial court’s decision in a 2-1 opinion determining that Todd owed an obligation to give actual notice to the Asbestos Workers Union, the union in which Mr. Herring was a member, as to potential claims for asbestos exposure. Because such notice was not given, Herring could sue Todd.

Todd hired the Talmadge Law Group to file a petition for review to the Washington Supreme Court. That Court granted the petition and, in a unanimous opinion, reversed the Court of Appeals, reinstating the trial court’s decision. In a carefully reasoned analysis, the Court determined that federal law only requires a debtor to give actual notice of a bankruptcy to its known creditors, those individuals or organizations who appear in the business records of the debtor. In certain circumstances, debtors must go beyond those business records to determine who is a known creditor. The Court reasoned that the Asbestos Worker’s Union was not even a creditor. Mr. Herring was an employee of subcontractors who worked on occasion at Todd. Those subcontractors had already received actual notice. The only notice of Todd’s bankruptcy to which Mr. Herring was entitled was notice by publication, which he received. Mr. Herring’s case against Todd Shipyards was barred by Todd’s discharge in bankruptcy.

The Sharbonos 16-year-old daughter, Cassandra, was involved in an automobile collision for which she was at fault. A young mother was killed. The Sharbonos argued that Universal Underwriters Insurance Company, a company that provided commercial insurance for their three transmission companies, and some limited umbrella coverage for their personal activities, was liable to the mother’s estate for Cassandra’s collision and the attendant damages. Universal offered the estate the umbrella limits for the Sharbonos’ personal umbrella coverage.

The Sharbonos contended that they were entitled to coverage from the commercial umbrella provisions for the transmission shops and the personal umbrella provision. They demanded copies of Universal’s underwriting file. When Universal refused it to them, they sued for declaratory judgment on coverage and damages for Universal’s alleged bad faith. The Sharbonos settled with the mother’s estate. The trial court granted summary judgment to the Sharbonos finding that Universal’s commercial umbrella provisions covered them for their daughter’s collision and the court stacked the insurance limits from those provisions on top of the personal umbrella provision limits. The case then went to trial on Universal’s alleged bad faith and a jury rendered a verdict in the amount of more than $9.3 million, including the settlement amount, damages for the impact to the Sharbonos’ business, and emotional distress damages. The Talmadge Law Group was retained to represent Universal on appeal.

On appeal, the Court of Appeals, Division II, vacated the judgment. The court found that Universal did not provide coverage to the Sharbonos under the commercial umbrella provisions for Cassandra’s collision. The court also vacated the bad faith judgment because the jury was improperly instructed on whether any alleged refusal by Universal to turn over its underwriting file to the Sharbonos’ lawyer necessarily resulted in damage to the Sharbonos. The Court of Appeals remanded the case for a new trial in the Pierce County Superior Court.

Kelly L. Shafer injured her back while working at AMF Sports World. She was diagnosed with multiple conditions related to the work injury. After conservative treatment did not relieve Shafer’s pain, her physician, Dr. Cook, recommended a more aggressive course of treatment. The Department of Labor and Industries refused to authorize Dr. Cook’s recommended care, and instead hired another doctor to conduct an independent examination. That doctor concluded that Shafer’s condition was fixed and stable, and the Department closed Ms. Shafer’s claim. Shafer stopped treatment because she could not afford it. Had Dr. Cook been aware of the Department’s decision she would have filed a protest, but she never received notice from the Department that Shafer’s claim had been closed.

During the next three years, Shafer’s untreated condition deteriorated until she could hardly get out of bed. She finally returned to see Dr. Cook, who saw objective evidence that Shafer’s back problems had worsened. Shafer filed an application to reopen her claim. In addition to providing evidence that her condition had worsened, Shafer asserted that when the Department originally closed her claim, it did not follow the proper statutory procedure because it failed to provide notice of the decision to Dr. Cook.

Talmadge/Fitzpatrick undertook Shafer’s representation on appeal. In a published decision on an issue of first impression in Washington, the Court agreed that a worker’s industrial insurance claim is not properly closed if the Department does not give notice of its decision to the injured worker’s attending physician.

The Department petitioned the Washington Supreme Court for review. In a unanimous 9-0 opinion, the Court affirmed the Court of Appeals.