Here are some of the cases we’ve worked for clients over the past few years.

King County v. Friends of Sammamish Valley, Supreme Court Cause No. 102177-1 (9-2024)

King County enacted Ordinance 19030 that addressed wineries in the Sammamish Valley, expanding the opportunity for tasting rooms and other winery-related entertainment activities in what were County agricultural and rural zones. The County loosened the requirement that such activities be tied to actual agricultural production on-site in the Valley.

The Central Puget Sound Growth Management Hearings Board determined that the County failed to comply with SEPA and GMA, invalidating Ordinance 19030. The County appealed, and Division I reversed the Board. In turn, Friends of Sammamish Valley and Futurewise successfully petitioned the Supreme Court for review. The Court agreed with the Board, determining that the County failed to comply with SEPA by not addressing environmental risks in its SEPA checklist, and violated GMA by allowing urban-type levels of activity in areas set aside for agricultural production and limited rural development.

Talmadge/Fitzpatrick was pleased to represent a broad coalition of agricultural amici curae both in support of Supreme Court review and on the merits.

CR Construction, LLC, and Corstone Contractors, LLC v. Sherlock Investments Duvall, LLC, Court of Appeals Cause No. 84584-5-I (8-2024)

Sherlock Investments Duvall, LLC (“Sherlock”), hired Corstone Contractors, LLC (“Corstone), to build a storage unit facility, with Corstone acting as the general contractor. They agreed upon a contract sum, and as is common in construction contracts, their contract stated that if Corstone wanted to increase the contact sum, it had to submit written change orders. Washington law strictly enforces such provisions in construction contracts. But Corstone directed its subcontractor to undertake significant excavation work without submitting prior written change orders and then demanded increased payment from Sherlock for that work.

The trial court denied Sherlock summary judgment and then denied a CR 50 motion Sherlock made after Corstone presented its case during a jury trial. The jury returned a verdict for Corstone.

Division I of the Court of Appeals reversed on appeal. It held that the trial court should have granted the CR 50 motion, affording Sherlock relief as a matter of law because Corstone did not comply with the mandatory change order provisions of the parties’ contract. Division I vacated the $1,288,620.24 jury verdict.

Talmadge/Fitzpatrick was pleased to assist George A. Mix of Mix, Sanders, Thompson, PLLC, in representing Sherlock on appeal.

Don and Julie Lionetti v. The Shriram Family Revocable Trust, Court of Appeals Cause No. 86007-1-I (7-2024)

The restrictive covenants (“CC&Rs”) for the Woodridge neighborhood in Bellevue set procedures for challenging construction within the community. By their plain language, a lawsuit must be brought to enjoin construction before it is finished, or the construction shall be deemed to fully comply with the CC&Rs. Despite this unambiguous language Don and Julie Lionetti sued their neighbors, Shriram Santhanam and Nitya Thiyagarajan, after they finished construction on their remodeled home in Woodridge. Despite the time bar in the CC&Rs and despite the fact that the construction complied with the CC&Rs’ restrictions regardless, the Lionettis still sought to enjoin the finished construction or recover damages.

The trial court dismissed the Lionettis’ lawsuit on summary judgment, and Division I of the Court of Appeals affirmed on appeal.

Talmadge/Fitzpatrick was pleased to assist Randal S. Thiel of the Thiel Law Firm PLLC in representing Shriram Santhanam and Nitya Thiyagarajan on appeal.

Nora Selim v. Fivos, Inc., Ninth Circuit Court of Appeals Cause No. 23-35383 (7-2024)

Nora Selim was fired by her American company, Fivos, Inc. She claimed that she was entitled to the benefit of Egyptian labor laws even though she was an American citizen, was hired initially by the company’s Washington subsidiary, she reported to American supervisors, she was never hired by the company’s Egyptian subsidiary, she paid Washington and U.S. taxes, and she had a Seattle area phone number.

The federal district court ruled that Washington law applied to Selim’s claims, dismissing her lawsuit, and the Ninth Circuit Court of Appeals agreed.

Talmadge/Fitzpatrick was pleased to assist Fisher Phillips in the representation of Fivos on appeal.

Issac Gordon v. Robinhood Financial, LLC, Court of Appeals Cause No. 38623-6 (5-2024)

Kirk Miller and Brian Cameron represented Isaac Gordon as the class representative in a class action against Robinhood Financial, an investment brokerage firm, whose Refer-a-Friend solicitations violated state and federal laws banning commercial spam. Robinhood removed the case filed in Spokane County Superior Court to federal court. The federal court certified the class under CAFA, that requires that $5 million in damages be at stake.

In the course of discovery, Robinhood discovered that Gordon received the referral initially from someone associated with Brian Cameron’s son, and a second message from John Cameron, Brian’s brother. After considerable motions practice in federal court and despite an offer by Gordon to step aside as class representative, the federal court decertified the class but did not disqualify class counsel, and then remanded Gordon’s individual class to state court. The federal court never sanctioned class counsel. The case was refiled in federal court as a class action. It survived a motion to dismiss by Robinhood. Robinhood ultimately paid $9 million to the class to settle the spam claims.

In state court, Gordon immediately moved to dismiss his individual claim under CR 41(a), which the trial court granted without prejudice. Subsequently, the trial court determined that a dismissal with prejudice was necessary and, at Robinhood’s insistence, sanctioned Miller and Cameron under RCW 4.84.250, the small claims fee statute, RCW 4.84.185 and CR 11 relating to frivolous claims in the amount of $750,000.

Division III reversed the trial court’s rulings under RCW 4.84.250 and RCW 4.84.185 finding both statutes inapplicable because, respectively, this was not a small claim, and Gordon’s action was not frivolous. The court affirmed sanctions under CR 11 for discovery conduct by counsel, but not because the Gordon action was frivolous. It vacated the fee award, and remanded the case to the trial court for a fee award limited to an amount necessary to deter the alleged attorney misconduct, noting that sanctions need not be excessive: “Small ships do not need large rudders to turn around.”

Hartford Fire Ins. Co. v. FC Leschi, LLC, Court of Appeals Cause No. 84319-2 (4/2024)

When a fire it caused damaged BluWater’s restaurant and the building BluWater rented for the restaurant, Sentinel Insurance paid the building’s owner for its repair of damage to an electrical panel embedded in the basement of the building under the third party coverage in BluWater’s policy. Sentinel, however, denied coverage to BluWater under its first party coverage for property damage to that panel because the policy explicitly excluded coverage for damage to the building, and BluWater did not own the electrical panel in any event.

The trial court, nevertheless, ruled that Sentinel breached its contract with BluWater seemingly concluding that Sentinel should have paid BluWater for the repair of the panel that the building’s owner undertook. The court found extracontractual liability as a matter of law, violations of the CPA by Sentinel as a matter of law, and ruled on damages as a matter of law. The court also found discovery violations and imposed sanctions. It awarded fees to BluWater.

Division I reversed the trial court’s rulings on most of the breach of contract claims. It reversed the extracontractual liability ruling, some of the CPA violations, and the bulk of the damages awarded by the trial court as a matter of law. The Court also vacated the fee award. While it found discovery violations, it reversed the onerous sanctions the trial court had levied.

Talmadge/Fitzpatrick was pleased to assist Maloney, Lauersdorf, Reiner PC in the representation of Sentinel on appeal.

The Gardens Condominium v. Farmers Ins. Exchange, Supreme Court Cause No. 101892-4 (3/2024)

The Gardens Condominium bought a Farmers “all-risk” insurance policy in 2002. Its building experienced damage due to faulty design and construction of the roof. The roof was redesigned and repaired; but the building in 2019 had water damage to the roof. Farmers denied the claim because the policy excluded coverage for faulty design, construction, and workmanship. But the exclusion had an exclusion – a resulting loss provision provided that if a covered loss or peril was caused by faulty workmanship, coverage was provided.

The trial court ruled for Farmers and the Court of Appeals agreed. The Supreme Court affirmed the Court of Appeals because the faulty workmanship resulted in a new covered loss or peril – condensation and water vapor – that was covered by the policy under the ensuing loss provision. Farmers had to cover the loss.

Talmadge/Fitzpatrick and Stein, Sudweeks & Stein were pleased to provide an amicus curiae brief for the Community Associations Institute in support of Gardens.

Jonathan Ebbeler v. WFG National Title Co. of Wash., Court of Appeals Cause No. 84849-6-I (2/2024)

Talmadge/Fitzpatrick secured the reversal of the superior court’s order dismissing our clients’ claims. A few years ago, our clients offered to buy a house, and the seller accepted. But on the closing date, problems with the paperwork resulted in our clients’ lender not wiring the loan proceeds before the cutoff deadline, and the transaction fell through. Our clients brought claims against the seller, believing the seller’s delays had hindered the paperwork. After a bench trial, however, the judge entered findings of fact and conclusions of law ruling that the responsibility under the purchase and sale agreement lie with our clients to ensure that the transaction was funded before the closing deadline.

At the same time, the judge suggested that the professional closing escrow agent whom our clients had hired was to blame for the problems. With this insight, our clients brought claims against the escrow company and its limited practice officer, alleging breach of contract, negligence, and other claims. But the superior court dismissed these new claims, reasoning that the doctrine known as collateral estoppel (or “issue preclusion”) prevented our clients from suing the escrow defendants. The superior court thought that the first trial had pinned the blame on our clients and so they could not claim professional liability against the escrow defendants.

The Court of Appeals reversed, and now our clients will get their day in court. The appellate court agreed with our arguments that the first trial did not resolve the escrow defendants’ liability and that it would be unjust to deny our clients the opportunity to prove their claims, especially when the limited practice officer admitted that our clients had done nothing wrong. Talmadge/Fitzpatrick was pleased to associate with Albert Law in this appeal.

Stan Schiff, M.D., Ph.D. v. Liberty Mut. Fire Ins. Co., Supreme Court Cause No. 101576-3 (2/2024)

Washington law requires personal injury protection (PIP) insurers, who provide health coverage for automobile owners and persons they hurt in an accident to make a reasonable investigation of claims and then pay reasonable and necessary medical expenses. As part of its investigative process, Liberty Mutual (Liberty), after screening the claim with adjusters, then utilizes a computer-generated database of claims in a geographical area to analyze if a medical provider’s charges exceed the 80th percentile of such charges for the service provided. If it does, Liberty pays at the 80th percentile rate.

Dr. Stan Schiff sued Liberty claiming it violated the Consumer Protection Act by utilizing the database to evaluate reasonableness of two of his charges, and not conducting an individualized analysis that evaluated the providers’ individual characteristics in making the charges. Liberty noted the practical impossibility of obtaining such information or individually applying it to the huge volume of PIP bills it received in a year.

The Court of Appeals agreed with Schiff. The Supreme Court agreed with Liberty, noting that the use of a computerized database was not prohibited by law or Insurance Commissioner regulation and was consistent with a reasonable investigation to weed out unreasonable, outlier provider charges.

Talmadge/Fitzpatrick was pleased to represent Liberty on appeal.

Simone Scott v. City of Tacoma, Court of Appeals Cause No. 57335-1-II (11/2023)

Shamarra Scott had a pre-existing dormant auto immune disorder that was lit up by a collision with a Tacoma police vehicle for which the City’s police officer was at fault. The lighting up of that disorder resulted in partial blindness for Shamarra that was treated with steroids. The steroids in turn caused her to have osteoporosis and that osteoporosis then resulted in spinal fractures necessitating surgery. When doctors discontinued the steroids for the surgery, Shamarra’s body underwent a massive shock resulting in her paralysis and subsequent death.

The trial court excluded the testimony of Shamarra’s well-qualified rheumatology expert, Dr. Steven Overman, and granted summary judgment to the City because allegedly without Dr. Overman’s opinion, Shamarra’s estate could not prove that her death resulted from the collision.

The Court of Appeals, Division II, reversed, concluding that Dr. Overman’s extensive qualifications and long clinical experience rendered his opinion based on scientific evidence admissible, and that causation was a jury question.

Talmadge/Fitzpatrick was pleased to assist GLP Attorneys on appeal.

Bruce Wolf v. State of Wash., Supreme Court Cause No. 101477-5 (9/2023)

As a child, Timothy Jones was declared a dependent of the State of Washington. While he was in the State’s care and custody, the State allowed Timothy to be stalked and repeatedly sexually abused. Timothy settled with his abuser for that childhood sexual abuse, not being aware of the State’s responsibility for allowing the perpetrator to abuse him.

Before his suicide death, Timothy became aware that the State was potentially responsible for his abuse by his stalker/abuser. His Estate sued the State for its negligence, but the trial court dismissed the claims on the basis of the childhood sexual abuse statute of limitations, RCW 4.16.340. Division II of the Court of Appeals, in a 2-1 split decision, agreed.

The Supreme Court reversed, holding unanimously that any claim arising out of childhood sexual abuse arose only once the former child victim connected her/his abuse to the specific defendant’s abuse or the negligence that allowed the abuse to occur.

Talmadge/Fitzpatrick was pleased to assist Ressler & Tesh in the representation of Timothy’s Estate on appeal.

Tim Nay v. BNSF Railway Co., Ninth Circuit Court of Appeals Cause No. 22-35722 (9/2023)

Maria Gonzalez-Torres approached a particularly hazardous road/rail crossing in Camas when her car was struck by an Amtrak train going 70 mph on BNSF-owned tracks. She was killed and her son was injured. The federal district court dismissed her negligence claims against Amtrak/BSNF, concluding that her theories of inadequate warning signals/signs for the crossing, the failure to give timely audible warnings, and obstruction to sight lines at the crossing were preempted under federal law.

On appeal, the Ninth Circuit reversed the district court’s decision as to inadequate signals/signs and lack of timely audible warnings from the train, allowing Maria’s Estate and her son to present their claims to a jury.

Talmadge/Fitzpatrick was pleased to assist D’Amore Law Group, P.C. and Boyd Kenter Thomas & Parrish, LLC, of Independence, Missouri on appeal.

Ehouse Development, LLC v. Sanford Lam, Court of Appeals Cause No. 84406-7-I (8/2023)

After lengthy negotiations with an LLC run by an experienced real estate professional, Sanford Lam sold his small Bellevue restaurant. The LLC agreed to pay Lam a non-refundable payment of $200,000, and Lam agreed to give the LLC three years to finally close the deal. The LLC failed to do so after extensive efforts to market a development of the property to investors. Lam lived up to his end of the deal, not selling the property to others for the three years.

The LLC demanded return of the non-refundable payment, insisting upon a 5-day feasibility contingency provision in the parties’ contract, although it had clearly indicated its intent to go forward with the deal for three years. The trial court rejected the LLC’s argument, noting that various addenda to the parties’ contract modified its terms, including the feasibility contingency. The court rejected the LLC’s claim of unjust enrichment as well. The court awarded fees to Lam.

Division I of the Court of Appeals affirmed the trial court’s judgment in all respects, allowing Lam to keep the non-refundable payment, and awarding Lam fees on appeal.

Talmadge/Fitzpatrick was pleased to assist Sweet Justice on appeal.

Schireman v. Williams, Court of Appeals Cause No. 83541-6-I (3/2023)

Before they were married, Loren Schireman and Alice Forrister began building a house together. They entered into a premarital agreement to handle the characterization of that house both before and after the marriage. After they were married, the agreement treated the house as community property. In his will, Loren bequested any community property to Alice.

When Loren died, his son claimed the house was an asset of Loren’s Estate and divided it among its beneficiaries. A trial court disagreed, finding the intent of the premarital agreement was clearly to give the house to Alice. Rather than appeal that ruling, the son sued Williams, who represented the son in Alice’s TEDRA action, for legal malpractice.

The trial court concluded the characterization of the house was a jury question in the malpractice action. The jury ruled in favor of the son.

On appeal, the Court of Appeals reversed judgment on the jury’s verdict, concluding that the characterization of the house was a legal question for the court that should never have gone to jury. The Court agreed with the initial judge’s ruling that the premarital agreement made the house community property. Nothing Williams did as counsel could have affected that outcome.

Talmadge/Fitzpatrick was pleased to join Fisher Phillips in the representation of Christopher P. Williams on appeal.

In re the Marriage of Idowu Timothy Aguda v. Oluwatoyin Adeshola Aguda, Court of Appeals Cause No. 83740-1-I (3/2023)

Idowu and Oluwatoyin Aguda submitted their dissolution case to a binding arbitrator, who divided the couples’ community property 50/50.  Unhappy with the decision Oluwatoyin moved to set aside the arbitration decision on the ground that it was procured by “fraud.”  The trial court denied her motion because she merely presented the factual arguments she presented to the arbitrator.  She did not appeal.  Six weeks later she refiled her motion to set aside the arbitration decision, again repeating the same arguments.  The trial court again denied her motion explaining that it had “previously addressed these issues and denied relief and no new material information has been provided.”  She moved for reconsideration, which was denied, and only then did she appeal.

Division I dismissed Oluwatoyin’s appeal, adopting Idowu’s argument that the appeal was untimely. The Court held that she failed to submit a timely appeal when the trial court denied her first motion to set aside the arbitration decision, and she could not preserve her appellate rights by “refiling” the same motion a second time.

Talmadge/Fitzpatrick was pleased to represent Idowu Aguda on appeal. 

Brianna Garza, et al. v. American Family Insurance Co., Court of Appeals Cause No. 83377-4-I (1/2023)

Brianna Garza was injured in an automobile collision with Matthew Perry for which she was not at fault. She suffered a traumatic brain injury in that collision. Rather than settle the case, Perry’s insurer American Family Insurance Co. (“AmFam”) refused all settlement demands from the Garzas for two years, making only a lowball offer. AmFam would not assure Perry that it would cover him if a jury awarded damages in excess of his policy limits, potentially exposing his personal assets.

Perry hired independent counsel when his AmFam appointed counsel did not settle the case within his limits or secure a promise from AmFam to cover him for damages beyond limits if his case were tried. Perry then entered into a covenant judgment settlement with the Garzas for $2.5 million, assigning his rights against AmFam to the Garzas.

AmFam intervened and tried unsuccessfully to take the case to federal court. It argued that it was the beneficiary of the settlement and tried to offer a belated promise to Perry to pay any judgment. The trial court rejected the argument. It challenged the reasonableness of the Perry-Garza settlement. It failed. It even argued unsuccessfully that the trial judge should have recused in the case.

On appeal, the Court rejected all of AmFam’s arguments for overturning the covenant judgment settlement in a well-crafted published opinion.

Talmadge/Fitzpatrick was pleased to assist Sullivan Law Group on appeal.

Thurman v. Sheriff Ozzie Knezovich, et al., Court of Appeals Cause No. 38444-6-III (1/2023)

Sheriff Ozzie Knezovich determined to subject Sgt. Jeffrey Thurman of the Spokane County Sheriff’s Department, a decorated law enforcement officer, to blatantly false charges of misconduct. To further his plan, Knezovich approached an editor of the Spokane Spokesman-Review to prevail upon that editor to call his reporters off the case so that Knezovich could have a big media splash about his allegations against Thurman. The editor agreed.

After Thurman sued Knezovich and the County for defamation and other claims, he sought to discover documents and other information about the agreement from the Spokesman-Review. The paper sought a protective order. Applying RCW 5.68.010, Washington’s reporter shield law, the trial court allowed the discovery, but narrowed its scope.

Division III granted interlocutory review, and ruled that the statute foreclosed inquiry into the substance of the Knezovich-Spokesman Review agreement, but ruled that the statute did not extend to the dates and times of various actions by the Spokesman-Review that were important for Thurman to document Knezovich’s timeline in his effort to viciously persecute Thurman.

Talmadge/Fitzpatrick was pleased to assist Mary Schultz on appeal.

Maria Hanes v. Dollar Tree Stores, Inc., Court of Appeals Cause No 56552-8-II (1/2023)

Maria Hanes sued Dollar Tree Stores Inc. after she tripped over some negligently placed merchandising pegs, causing her ongoing injury and pain. She properly served Dollar Tree’s registered agent, but Dollar Tree failed to appear and defend the lawsuit in court. Hanes obtained a default order and judgment. One year later, Dollar Tree moved to set default aside arguing that it should be excused for its failure to appear and defend the lawsuit in Court because Hanes had prelitigation contact with a third-party, non-lawyer claims adjuster. The trial court ruled in Dollar Tree’s favor and vacated the default.

Division II of the Court of Appeals reversed in a unanimous decision. The court ruled that default was proper under longstanding precedent requiring a defendant to appear and defend a lawsuit in court. The Court ruled that Dollar Tree’s other arguments to the contrary were meritless, time-barred, or both.

Talmadge/Fitzpatrick was pleased to assist Ressler & Tesh in representing Ms. Hanes on appeal.

Dr. Jeremy Conklin v. University of Washington School of Medicine, et al., Court of Appeals Cause No. 83200-0-I (1/2023)

Dr. Conklin sought public records related to fellowship positions at the University of Washington School of Medicine. Specifically, he sought contracts related to nationwide matching programs for medical fellowships. After years of delay UW closed the public records request, only later to “discover” the contracts after Dr. Conklin sued under the Public Records Act (“PRA”).

Division I of the Court of Appeals ruled that UW was liable under the PRA for conducting an inadequate search for the contracts it discovered after Dr. Conklin sued. It remanded to superior court to hold a hearing on penalties and award Dr. Conklin his costs and attorney fees.

Talmadge/Fitzpatrick was pleased to represent Dr. Conklin both in trial court and on appeal.

Eric Dodge v. Evergreen School District, et al., Ninth Circuit Cause No. 21-35400 (12/2022)

In this First Amendment free speech case, Talmadge/Fitzpatrick secured a rare victory for a person whose constitutional rights have been violated—reversal of a grant of qualified immunity for the government wrongdoer. Eric Dodge was a middle school teacher. When Dodge wore his “Make America Great Again” hat on two teacher training days, his school principal retaliated against him. Under the doctrine known as Pickering balancing, the principal later claimed that her administrative interest in avoiding disruption in a government workplace (a few of Dodge’s coworkers had taken offense) justified her action. The federal district court agreed with the principal, dismissing Dodge’s case.

The Ninth Circuit reversed that decision and reinstated Dodge’s claim against the principal. The Court agreed with Talmadge/Fitzpatrick’s arguments that Dodge’s hat was protected political speech and that the principal was not entitled to qualified immunity because it was patently unreasonable for her to believe that others’ disagreement with Dodge’s political viewpoint could justify the principal’s action.

Talmadge/Fitzpatrick was pleased to represent Dodge on appeal.

In re: B.M. on behalf of A.M. and J.M., Court of Appeals Cause No. 38584-1-III (12/2022)

Without any evidence that A.M. had been abused by her half-brother, J.M., the trial court, nevertheless, entered a domestic violence protection order preventing any contact between the two siblings.

On appeal, J.M. argued that no evidence supported the trial court’s order as the siblings were not physically in the same area when the alleged conduct occurred, and the statute, upon which the order was based, RCW 26.50, did not apply to juveniles in this case’s circumstances.

The Court of Appeals held that the statute did not apply here and vacated the order.

Talmadge/Fitzpatrick was pleased to represent J.M. on appeal.

Washington State Council of County and City Employees, AFSCME Council 2, and Local 270 v. City of Spokane, Washington Supreme Court Cause No. 100676-4 (12/2022)

Right wing anti-union groups prevailed upon the citizens of the City of Spokane to enact an amendment to the City Charter, mandating public bargaining by the City with its unions and the immediate posting of all proposals in bargaining. City officials who violate that directive would be referred to City and County attorneys for legal action.

Talmadge/Fitzpatrick represented the Washington State Council of County and City Employees, AFSCME, Council 2, and its Local 270, its local affiliate, (“WSCCCE”) at trial in challenging the charter provision because it was preempted by state law. The trial court agreed.

The Supreme Court unanimously affirmed the trial court’s ruling, concluding that the Public Employees Collective Bargaining Act preempted the field of public employee collective bargaining because uniform statewide procedures for bargaining are mandated by state law. Also, public bargaining all too often prevents the negotiation of contracts for public employees.

Talmadge/Fitzpatrick was pleased to represent WSCCCE in this litigation.

Gregory M. Tadych and R. Sue Tadych v. Noble Ridge Construction, Inc., et al., Washington Supreme Court Cause No. 100049-9 (10/2022)

Sue and Greg Tadych hired a contractor to build their dream house. Buried in the Warranty section of their contract was a 1 year suit limitation clause that drastically shortened the time period they had for seeking redress for shoddy construction work. The Tadychs experienced multiple problems with the work that the contactor re-assured them would be addressed, but were not.

When the Tadychs sued, the trial court dismissed their claims on the basis of the suit limitation clause and Division I affirmed. The Supreme Court reversed, concluding that the suit limitation clause was substantively unconscionable in restricting the Tadychs statutory rights.

Talmadge/Fitzpatrick was pleased to assist Todd Henry of Inslee, Best, Doezie & Ryder, P.S. on appeal.

Judith Cole, et al. v. Keystone RV Company, Ninth Circuit Cause No. 21-35701 (9/2022)

Various persons purchased a variety of models of Keystone RV Company’s recreational vehicles. They decided to reside permanently in them, contrary to the Company’s advice featured prominently in its detailed online owner’s manual. Those persons filed a class action against Keystone asserting claims under Washington’s Consumer Protection Act for alleged deceptive information in the owner’s manual, even though they admitted to not reading the manual.

The district court dismissed the CPA claims because Keystone’s owner’s manual was not deceptive and the class failed to prove causation. The district court declined to certify the class because individual claims predominated. The Ninth Circuit Court of Appeals agreed on both aspects of the district court’s rulings, affirming the district court’s dismissal of the case.

Talmadge/Fitzpatrick was pleased to assist Corr Downs LLC in the representation of Keystone on appeal.

Espresso Supply v. Smartco Int’l (HK), Ninth Circuit Cause No. 22-35028 (9/2022)

Espresso Supply entered into an international distribution agreement for certain coffee products with Smartco, a Hong Kong corporation. The parties believed that they agreed to an “Evergreen” renewal provision, with annual renewals of the five year term of the agreement. Smartco ousted Espresso Supply from the distribution of the coffee products, claiming the renewal was merely for a flat five years.

Espresso Supply sued Smartco for breach. The district court dismissed the complaint on Rule 12(b)(6) grounds denying Smartco a preliminary injunction. The Ninth Circuit reversed, holding that the district court erred in refusing to consider context evidence relevant to discerning the meaning of the renewal provision in the distribution agreement. Espresso Supply’s case may now move forward.

Talmadge/Fitzpatrick was pleased to represent Espresso Supply on appeal.

King County v. Sorensen, Supreme Court Cause No. 100731-1 (9/2022)

King County sued the Presiding Judge of the Pierce County Superior Court in an original mandamus action in the Supreme Court claiming that it was entitled to court reporters’ private recordings of certain court sessions that allegedly documented a judge’s bias toward the County in a trial that resulted in an adverse verdict for a public defender against the County for allowing a former client to stalk and harass her.

The Supreme Court denied the writ of mandamus, noting that the Presiding Judge was not subject to the writ and that he violated no mandatory duty. Moreover, the County had adequate remedies at law.

Talmadge/Fitzpatrick is representing the public defender on appeal and supplied an amicus curiae brief to the Supreme Court.

IHIF Commercial, LLC v. City of Issaquah, Court of Appeals Cause No. 83011-2-I (8/2022)

The City of Issaquah (“City”) entered into a statutory development agreement with Shelter Holdings regarding a development of 21.5 acres in the Issaquah Highlands. After several years of efforts by Shelter to finalize the development, the City Council abruptly terminated the agreement and adopted new regulations that would have made the proposed development fundamentally more difficult. The City hearing examiner rejected Shelter’s appeal. Shelter sought LUPA review of the trial court decision affirming the hearing examiner ruling. The hearing examiner determined that Washington’s vesting doctrine, a rule that applies the law existing at the time completed development permit applications are filed to any analysis of the permits, was inapplicable.

On review, the Court of Appeals reversed, holding that the vesting doctrine applies to development agreements. Talmadge/Fitzpatrick was pleased to present an amicus curiae brief on the vesting doctrine for the Washington Business Property Association in support of Shelter’s position on appeal.

Larson Motors, Inc. and RJ 35700, LLC v. Jet Chevrolet, Dan Johnson and Jim Johnson, Court of Appeals Cause No. 83124-1-I (8/2022)

The Johnsons sold Jet Chevrolet to the Larson Automotive Group, but the sale was contingent on General Motors’ (“GM”) approval of the sale. GM withheld that approval. A selling auto dealership may petition the Department of Licensing to overturn such a disapproval, but the buying dealership lacks standing to file such a petition. Despite contractual and common law covenants to cooperate in good faith with Larson on the sale of Jet and to secure GM’s approval, the Johnsons refused to petition DOL. Larson sued the Johnsons for breach of contract associated with the failure to petition DOL and possible violations of contractual exclusivity provisions. The trial court granted summary judgment to the Johnsons, dismissing Larson’s action, and awarded them more than $141,000 in fees.

On appeal, the Court of Appeals affirmed the summary judgment in the Johnsons favor, but vacated the fee award. Talmadge/Fitzpatrick was pleased to assist Fisher Phillips on appeal for Larson.

Mullor v. Renaissance Ridge Homeowners Assoc./Annamreddy, Court of Appeals Cause No. 83025-2-I (8/2022)

Suresh and Divya Annamreddy replaced a fallen fence that abutted the property line with their neighbors Miki and Michal Mullor. The Mullors believed the replacement fence violated the Renaissance Ridge Homeowners Association’s Covenants, Conditions, and Restrictions (“CC&Rs”) because it was a solid, as opposed to open slat, style fence. But the undisputed evidence showed that numerous lots within the community used the solid style fencing, and the Association’s Architectural Control Committee gave verbal and later written permission to use that style for the replacement fence. The Committee specifically found that the solid fence harmonized with the community’s aesthetics and likely enhanced the neighboring property values.

The Mullors sued the Annamreddys and the Homeowners Association to enforce the CC&Rs. The Mullors lost in trial court. The Mullors appealed to Division I of the Court of Appeals and lost again in a unanimous decision. Division I held that the CC&Rs were ambiguous at best regarding the permitted style of fencing within the community. But they unambiguously gave the Architectural Control Committee exclusive authority to approve fencing designs, including allowing variances from the CC&Rs. Division I awarded the Annamreddys and the Homeowners Association fees for time spent on appeal.

Talmadge Fitzpatrick was pleased to represent the Annamreddys on appeal and work with Sarah Eversole of Wilson Smith Cochran Dickerson, representing Renaissance Ridge Homeowners Association.

Phillip Boreen Dec’d v. State of Washington, King County Cause No. 22-2-00846-6 SEA (7/2022)

Katharine Boreen’s husband, Lt. Phillip Boreen, died after a 28-year career as a Seattle City Firefighter, during which time he was exposed to carcinogenic elements that ultimately ended his life.  Mrs. Boreen petitioned for a special death benefit that to which fallen firefighters are entitled if they die of a disease caused by their work.  She provided doctors notes and a full medical release of records for the Department of Labor and Industries to adjudicate her claim.  But the Department failed to follow up, did not return her calls, and generally failed to guide her through the process, which was difficult as a grieving, newly single mother to several minor children.  The Department denied her claim citing the fact that her husband’s illness was not a “presumed occupational disease” and led her to believe an appeal would be futile.  She reapplied months later when the Legislature added his illness to the list of presumed occupational diseases, still the Department denied her claim claiming she missed the deadline to appeal the first denial.

Mrs. Boreen appealed to the Board of Industrial Insurance Appeals, and one Board Member agreed with her, although a majority of the three-person Board upheld the Department’s denial.  She appealed again to the King County Superior Court, and Judge Elizabeth Burns reversed the Board’s order and the Department’s decision.  Judge Burns ruled that as a matter of equity Mrs. Borren should have her application for benefits considered on its merits – i.e., on the unrefuted medical evidence showing that her husband died of an occupational disease – rather than dismissed for any technical failure to miss a deadline for review.

Talmadge/Fitzpatrick was pleased to represent Mrs. Boreen and her family throughout this appeal.

Zak Smith v. Gen Con LLC, et al., Court of Appeals Cause No. 82672-7-I (7/2022)

The Court of Appeals reversed the superior court’s pretrial dismissal of the claims of our client, Smith, for defamation, false light, and intentional interference with a business expectancy. The superior court believed that Smith’s complaint had pleaded insufficient facts to meet the requirements of CR 12(b)(6). On appeal, Talmadge/Fitzpatrick invoked Washington Supreme Court precedents on Washington’s notice pleading standard. Weaving these precedents into the appellant’s briefs, Talmadge/Fitzpatrick argued that Smith’s complaint gave fair notice to the defendants and that he was not yet required to prove his entire case in the early stages of the litigation. Talmadge/Fitzpatrick’s briefs also stressed that CR 9(b) permits a plaintiff’s complaint to plead a defendant’s mental state (knowledge, malice, and intent) in general terms without producing specific evidence. The Court of Appeals agreed with these arguments, which are reflected in the Court’s unpublished opinion. Smith will now have the opportunity in the superior court to conduct pretrial discovery and to produce evidence to prove his claims.

Talmadge/Fitzpatrick was pleased to assist trial lawyer Moshe (“Jeff”) Admon in the representation of Smith on appeal.

Morrone v. Northwest Motorsport, et al., Court of Appeals Cause No. 55920-0-II (5/2022)

A former employee, who voluntarily resigned to take a position at a larger company, sued Northwest Motorsport, alleging he was constructively discharged. Northwest Motorsport tendered the matter to its outside legal counsel who failed to appear on time due to a miscommunication that was not Northwest Motorsport’s fault. When the plaintiff obtained a hurried default judgment, as quickly as the civil rules allow, Northwest Motorsport’s attorney immediately appeared and moved to vacate the judgment within 48 hours. Northwest Motorsport explained the mistaken failure to appear earlier and presented numerous defenses to the hotly disputed employment claims. The Pierce County Superior Court refused to set aside the default.

On appeal, Division II of the Court of Appeals reversed in a unanimous decision. Applying settled principles in Washington disfavoring defaults, Division II held that the trial court abused its discretion. Northwest Motorsport offered numerous valid defenses and its failure to appear was excusable under the circumstances.

Talmadge/Fitzpatrick was pleased to represent Northwest Motorsport on appeal.

In re Marriage of Bresnahan, Cause No. 53695-1-II (3/2022)

After the trial court dissolved the parties’ marriage and distributed their property, our client twice discovered evidence that her ex-husband had failed to disclose property that had belonged to the marital community but that had not been included in the trial court’s decree. The trial court granted our client’s motion under CR 60 to vacate the property distribution. The ex-husband appealed, asserting that he had given information about the assets and that the burden was on our client to discover the undisclosed property.

The Court of Appeals rejected the ex-husband’s arguments and affirmed the trial court’s vacation order. The Court adopted Talmadge/Fitzpatrick’s argument that spouses owe a fiduciary duty to each other that continues after filing a petition for dissolution. Because spouses owe each other this enhanced obligation, each spouse has the right to rely on the other’s financial disclosures during a divorce case. Alongside this fiduciary duty to each other, the Court agreed with Talmadge/Fitzpatrick that spouses have an obligation to fully disclose their assets to the trial court when it distributes the couple’s property in a dissolution case. The Court also agreed that the trial court had discretion to vacate the property distribution instead of partitioning the newly discovered assets. Finally, based on the equitable doctrine of intransigence, the Court upheld the trial court’s award of attorney fees to our client and ordered her ex-husband to pay her attorney fees on appeal.

Talmadge/Fitzpatrick was pleased to be associated with trial counsel Chris Maharry in representing Ms. Bresnahan.

In re Keenan, 199 Wn.2d 87, 502 P.3d 1271 (2/2022)

The Supreme Court reversed the Commission on Judicial Conduct’s discipline of King County Superior Court Judge David S. Keenan for appearing on advertisement for a public community college. Talmadge/Fitzpatrick attorneys Thomas Fitzpatrick, as a nationally known specialist in judicial ethics, and Phil Talmadge, as a retired justice and specialist in ethics matters himself, provided an amicus (“friend of the court”) brief in support of Judge Keenan’s position. Several scholars and bar leaders co-signed the brief and helped shaped its arguments.

The Supreme Court agreed with Judge Keenan and our amicus brief that the Commission had overreached in its application of Rules 1.2 and 1.3 of the Code of Judicial Conduct. Judge Keenan, along with other alumni of the community college, had agreed to appear on advertisements encouraging people to enroll. The ad featuring Judge Keenan stated that he “got into law in part to advocate for marginalized communities.” The Commission incorrectly believed that Judge Keenan’s appearance was an “abuse” of his judicial office’s “prestige.” The Commission also mistakenly concluded that the ad’s message about his inspiration for becoming a lawyer was an “appearance of impropriety.”

We believe that Washington’s judges have an important role, within the boundaries of the Code of Judicial Conduct, in civic life. The Code was never meant to stand in the way of judges promoting equal access to justice, supporting our state’s educational institutions, and inspiring the lawyers of tomorrow.

Dinita Harris, et al. v. Federal Way Public Schools, Court of Appeals Cause No. 81179-7-I (2/2022)

Allen Harris, a 16 year-old Federal Way high school football player, collapsed during summer drills on a hot day. Rather than treating Allen’s collapse as a sudden cardiac arrest (“SCA”) as required by special statutes addressing SCA and the attendant training of athletic coaches, his coaches treated his collapse as a heat issue – they did not start CPR or employ an AED, as SCA training required. Allen died as a result of that negligent response to his SCA.

When Allen’s Estate sued the Federal Way Public Schools, the FWPS filed a motion to dismiss Allen’s case that the trial court denied. On appeal, Division I of the Court of Appeals held that the District owed Allen a duty of care, particularly given the SCA statute, and declined to apply RCW 4.24.300(4), that provides limited immunity to the coaches, to the District itself. Allen’s Estate will have its day in court before a jury.

Talmadge/Fitzpatrick was pleased to assist the Connelly Law Offices on appeal.

Banner Bank v. Reflection Lake Community Association, et al., Court of Appeals Cause No. 38048-3-III (1/2022)
In 2020, the members of the Reflection Lake Community Association in Spokane, Washington called for a special meeting to reelect board members, after an interim board comprised of temporarily appointed board members refused to hold a regular meeting as required by the association’s bylaws. The members gathered far more than enough signatures to call a special meeting, and they held a valid vote at the meeting to elect a new board.

James Powers, the outgoing board’s president disputed the election, and Banner Bank froze the association’s assets and filed an interpleader, asking the courts to resolve the dispute. RLCA presented irrefutable evidence that the election was fair and valid on summary judgment, and in response, Powers merely tried to use discovery disputes and delay tactics to prolong litigation. The trial court entered summary judgment in RLCA’s favor.

Division III of the Court of Appeals affirmed in a unanimous decision. The Court also awarded RLCA its fees for having to respond to Powers’ frivolous appeal.

Talmadge/Fitzpatrick was pleased to assist Tyler Lloyd and represent RLCA on appeal.

Austin Fite v. City of Puyallup, Court of Appeals Cause No. 54325-7-II (11/2021)
Austin Fite was riding his skateboard admittedly high on marijuana when he entered a crosswalk without looking.  He was struck by a truck, sustaining injuries.  Fite sued the truck operator and the City of Puyallup for damages.  As for the City, he alleged that the City’s crosswalk was improperly designed.

The trial court refused to allow the City to present an RCW 5.40.060 intoxication defense to the jury, gave a one-sided instruction on the City’s roadway duty to the jury, and favored Fite in its evidentiary rulings.  The jury found the truck operator 33% at fault and the City 67% for Fite’s injuries in awarding him damages of $6.5 million.

The Court of Appeals reversed the judgment on the jury’s verdict and ordered a new trial because the City was wrongfully deprived of its intoxication defense and the jury instruction on the City’s roadway safety duties was unfair in its over-emphasis of Fite’s position on the crosswalk.

Talmadge/Fitzpatrick was pleased to assist Keating Bucklin in the representation of the City on appeal.

In re Marriage of Roger W. Christopher v. Connie S. Christopher, Court of Appeals Cause No. 54208-1-II (11/2021)
Upon dissolution of their 17-year marriage, the Clark County Superior Court ordered that Connie and Roger Christopher’s three minor daughters would reside primarily with their mother and their three minor sons would reside primarily with their father.  This was the recommendation of a well-respected, parenting evaluator the court appointed to evaluate the family.  The trial court considered the evaluator’s report, as well Ms. Christopher’s critiques of the report as offered by her expert at trial, but ultimately agreed with the evaluator’s recommendation after careful deliberation and a full trial involving many witnesses and exhibits.  After detailed orders were entered, Ms. Christopher violated the parenting plan and was held in contempt.  She appealed both the final parenting plan and the contempt order and challenged the trial court’s decision to impute minimum wage income after she failed to properly account for her work history.

On appeal, Division II of the Court of Appeals unanimously affirmed the parenting plan and contempt order.  It rejected every one of Ms. Christopher’s arguments regarding the legitimacy and sufficiency of the court’s findings, affirmed the contempt order, and affirmed the decision to impute some income to her for her voluntary underemployment.  

Talmadge/Fitzpatrick was pleased to represent Roger Christopher on appeal. 

Schuck v. Reinland, Court of Appeals Cause No. 37213-8-II (10/2021)

This case was, as the Court of Appeals put it, a tragedy. Felix Schuck suffered horrific injuries when a pressurized tank of chlorine gas ruptured at the recycling plant where he worked. The defendants had sold scrap metal to the recycling company without checking or noticing that the hazardous material was in the mess. Schuck, an innocent bystander, became engulfed in gas when the tank passed through a large shearing machine. Schuck filed a lawsuit against several defendants.

The defendants appealed when the Spokane County Superior Court declined to dismiss Schuck’s some of claims for negligence, and Schuck cross-appealed the trial court’s dismissal of his claim of strict liability and one of his negligence claims. The Court of Appeals rejected the defendants’ arguments on those claims, affirming the trial court’s decision that Washington tort law may impose liability in circumstances like in this case. The Court of Appeals agreed with Talmadge/Fitzpatrick’s arguments that the Schuck had produced enough evidence for a jury to find that the defendants had breached common law duties of care to Schuck under Restatement (Second) of Torts §§ 388 and 392. The Court also agreed that the defendants were strictly liable for supplying hazardous material under Restatement (Second) of Torts §§ 519 and 520.

Talmadge/Fitzpatrick was pleased to assist GLP Attorneys in the representation of Schuck on appeal.

Patricia A. Bostwick v. Diana Brazier, Personal Representative for the Estate of Char, Court of Appeals Cause No. 81774-4-I (10/2021)
Patricia Bostwick sought to contest her father’s will.  To contest a will under chapter 11.24 RCW, a party must file a petition within four months after the will is admitted to probate and personally serve the estate’s personal representative within 90 days.  These bright-line deadlines promote the policy in Washington that probate estates should be finalized promptly and efficiently.  Bostwick filed her case on time but failed to serve Diana Brazier, the Estate’s personal representative, within 90 days.  The trial court dismissed for lack of timely service.

On appeal, Division I affirmed, rejecting Bostwick’s arguments that substantial compliance is sufficient given the clear deadlines imposed by chapter 11.24 RCW and controlling case law.  The Court awarded Brazier her attorney fees on appeal and remanded for further findings related to the fee award at trial court, partially granting Brazier’s cross-appeal, which argued that the fee award at trial court was insufficient.  

Talmadge/Fitzpatrick was pleased to assist M. Owen Gabrielson of Farr Law Group in representing Ms. Brazier on appeal.

Debra A. Lev v. City of Bellingham and Seth Fleetwood, Whatcom County Cause No. 21-2-00541-37 (10/2021)
Washington General Rule 29 clearly vests the nondelegable authority to supervise and control working conditions at every court in Washington with its Presiding Judge.  Notwithstanding this elementary principle of separation of powers, Bellingham Mayor Seth Fleetwood sought to compel staff at the Bellingham Municipal Court to submit to his investigation into a few general complaints he received about working conditions at the Court.  When members of Presiding Judge Debra Lev’s staff refused, Mayor Fleetwood illegally suspended them and revoked their access to the Court and their workstations.

Judge Lev was forced to sue the mayor for declaratory and injunctive relief in Whatcom County Superior Court.  Judge Elizabeth Y. Neidzwski, visiting from Skagit County, issued an immediate, temporary injunction, finding that the mayor infringed on Judge Lev’s non-delegable authority under GR 29 and violated separation of powers principles.  She ordered that the employees be immediately restored to their posts.   A few weeks later, Judge Neidzwiski also granted Judge Lev’s motion to disqualify the City Attorney’s Office from participating in the dispute, due to the obvious conflict it created by choosing sides with one client (the Executive) over another (the Judiciary), without implementing any screen.  With Talmadge/Fitzpatrick’s help, the parties eventually settled the matter through mediation, with the mayor agreeing to abide by GR 29 and pay the Court’s attorney fees.

Talmadge/Fitzpatrick was pleased to represent Judge Lev at all stages of the case along with Carrie Blackwood at Barron Smith Daugert.

Richard Nau v. Nancy Vogel, Trustee for Mark Vogel Residuary Trust and West Realty, I, Court of Appeals Cause No. 82544-5-I (10/2021)
Nancy Vogel sold land in Potlatch in Mason County, Washington, to Richard Nau. She disclosed to him the possible presence of a Native American cemetery on that land and left him materials describing that cemetery. The plat map noted a cemetery on the parcel. Nau visited the site twice and saw headstones before the closing. His real estate agent told him to investigate the cemetery with local officials. County officials viewed the site and told Nau to contact State archaeology officials. Nau’s preliminary commitment for title insurance excepted coverage for the cemetery. 

Despite the foregoing knowledge, and four extensions of the closing deadline, Nau waived any contingencies on the deal and the sale closed. 

Nau subsequently sued his real estate firm and Vogel under a variety of baseless theories including fraud. The trial court dismissed Nau’s action in a series of summary judgment orders, and ultimately imposed CR 11 sanctions against Nau. Division I affirmed the trial court’s decisions and awarded fees on appeal to Vogel.

Talmadge/Fitzpatrick was pleased to assist Richard Hoss of Hoss & Wilson-Hoss on appeal.

Brazier on appeal.

Folweiler Chiropractic, PS v. Safeco Ins. Co. of America, et al., Court of Appeals Cause No. 81520-2-I (09/2021)
Folweiler Chiropractic PS filed a lawsuit against Safeco to challenge that insurer’s use of a database designed to weed out outlier professional billers for medical services under auto insurance policies’ PIP-type coverages. It was a participant in a class action lawsuit in Illinois on the use of the same database that settled.

The trial court dismissed any direct claims by Folweiler against Safeco based on the release in the Illinois settlement but allowed it to proceed with claims ostensibly based on “equitable assignments” of claims from Safeco’s insureds.  There were no express assignments to Folweiler by those insureds.

The Court of Appeals granted discretionary review and reversed the trial court, reasoning that the broad language of the Illinois release forbidding any claims, however derived, by Illinois class members against Safeco barred the Washington lawsuit.

Talmadge/Fitzpatrick was pleased to assist Safeco on appeal.

Griswold v. Fred Meyer Stores, Inc., Court of Appeals Cause No. 81444-3-I (08/2021)
Sarah Griswold was shopping at the Fred Meyer store in University Place during the busy Thanksgiving holiday rush when a heavy dolly, placed in the aisle by Fred Meyer’s staff, fell on her foot, severely injuring her.  Sarah sued Fred Meyer for her injuries.  

On summary judgment, the trial court ruled that Fred Meyer was liable and Sarah was not liable because it was undisputed that Sarah was an invitee to the store, she was injured by a Fred Meyer instrumentality placed in a busy shopping aisle by store staff, and Sarah never touched the dolly or otherwise caused it to fall.  

On appeal, Fred Meyer tried to offer new evidence, contrary to its entire trial court argument, but not contradicting the unrebutted factual points noted above.  Division I affirmed the trial court’s summary judgment decision, and a subsequent jury verdict, in an unpublished opinion.  

Talmadge/Fitzpatrick was pleased to assist GLP Attorneys in Sarah’s representation on appeal.  

Harish Bharti v. Stephen Teller, Court of Appeals Cause No. 80580-1-I (04/2021)
Stephen Teller initially represented Ruhul Kayshel.  Dissatisfied with Teller’s representation in a potential race discrimination class action, Kayshel retained Harish Bharti, who, in turn, brought the Friedman Rubin firm into the case.  That firm and Bharti agreed to a 65/35 split of any fee.  In turn, Bharti and Teller agreed to split the 35% on a 2/3 – 1/3 basis.

Teller did little work on the case.  He was discharged by Kayshel.  He was never approved as class action, he had no role in the class certification, the discovery/motions practice, or the ultimate settlement of the case.  Nevertheless, Teller demanded his full 1/3 of the 35%, despite the mandate of RPC 1.5(e)(1) as to the splitting of fees.  The trial court agreed with Teller, finding his fee request reasonable despite the paucity of his actual work on the class action.

Division I reversed, holding that RPC 1.5(e)(1) made the Teller/Bharti agreement unenforceable where the client had agreed expressly to the Teller/Bharti fee split.  

Talmadge/Fitzpatrick was pleased to assist Patrick Vail in the representation of Harish Bharti on appeal.

Nancy Miller, PR of Estate Heather Durham v. Pierce County, Court of Appeals Cause No. 53344-8-II (02/2021)
Abel Robinson, who had a lengthy criminal history of violent offenses, was convicted on drug charges and sentenced to 364 days of electronically monitored home confinement or time in the Pierce County Jail.  Inexplicably, Pierce County failed to carry out the court’s sentence and control Robinson, allowing him to roam freely in the County.  Robinson brutally assaulted his estranged wife, Heather Durham, blinding her.  

Heather’s estate (she died subsequent to the events in the case) sued the County for breach of its take-charge duty as to Robinson.  The trial court dismissed the complaint.  The estate successfully sought discretionary review and Division II reversed the dismissal order, concluding that the estate was entitled to its day in court before a jury on the County’s negligence.  

Talmadge/Fitzpatrick was pleased to assist the Connelly Law Offices on appeal in the estate’s representation.  

Kathleen Mancini v. City of Tacoma, Supreme Court Cause No. 97583-3 (01/2021)
Our client, Kathleen Mancini, won a police negligence trial. A SWAT team from the City of Tacoma had mistakenly searched her home and then had kept her in cuffs despite realizing they entered the wrong home. Tacoma appealed, and the Washington Court of Appeals threw out the jury’s verdict, holding that state law does not impose liability on police officers for their negligence in circumstances like this case’s.

Talmadge/Fitzpatrick then joined Mancini’s legal team and persuaded the Washington Supreme Court to review her case. After Talmadge/Fitzpatrick submitted briefs and oral argument, the Supreme Court reinstated Mancini’s favorable jury verdict. The Court held that police officers may be liable for their negligence when executing a search warrant. The Court also explained that, while it was not yet deciding the legal question whether state law imposes liability on government agents for their negligence during official investigations, the door is still open to such negligence claims. This result brought a successful end to a legal ordeal that lasted nearly 10 years for Mancini and her trial attorney, Lori Haskell.

The Court’s decision received local https://www.thenewstribune.com/news/local/article248817960.html and national news https://www.law360.com/articles/1349672/wash-justices-revive-nurse-s-win-over-negligent-cop-raid coverage https://slate.com/news-and-politics/2021/03/washington-supreme-court-drug-possession-police-biden.html

Talmadge/Fitzpatrick was pleased to join Haskell in representing Mancini.

McLaughlin v. Travelers Comm’c Ins. Co., Supreme Court Cause No. 97652-0 (12/2020)
Todd McLaughlin suffered serious injuries when he collided with a car door while riding his bicycle in Seattle.  McLaughlin had insurance through Travelers Commercial Insurance Company which provided Personal Injury Protection (“PIP” aka “MedPay”) coverage, which covered for medical expenses related to the collision.  According to his policy, he was covered if he was injured as a “pedestrian” during a collision with an automobile.  The policy did not define the term “pedestrian.” 

Even though insurers routinely cover bicyclists under PIP and the Washington Insurance Code broadly defines “pedestrian” for PIP purposes as “any person not occupying a motor vehicle,” Travelers denied coverage, relying on a strict dictionary definition of the term.  McLaughlin sued, and the trial court granted summary judgment in Travelers’ favor.  McLaughlin appealed.  Division I of the Court of Appeals affirmed. 

Our Supreme Court granted review and reversed in a split decision (although all Justices agreed that the Court of Appeals erred in its analysis).  The Court reaffirmed the well-settled principles that definitions in the Insurance Code operate as part of an insurance policy in Washington, and, at the very least, the term “pedestrian” is ambiguous and ambiguous terms must be construed in the insured’s favor.  The Court awarded full PIP coverage and attorney fees to McLaughlin.

Talmadge/Fitzpatrick was pleased to assist Rob Levin and Bob Anderton at Washington Bike Law in representing McLaughlin on appeal and on review to the Supreme Court.  Talmadge/Fitzpatrick was also pleased to work with counsel representing amici curiae – Stephanie Taplin for Cascade Bicycle Club, Ian Birk and Gabriel Verdugo for United Policyholders, and Daniel Huntington and Valerie McOmie for the Washington State Association for Justice Foundation.

Evans v. Spokane County, Court of Appeals Cause No. 36495-0-III (11/2020)
Carlton Evans was impaled by a tree located in the right of way of a Spokane County roadway, resulting in the loss of his arm.  The Evanses sued Spokane County for its negligence as a roadway operator and premises owner.  At trial, the County persuaded the court to give instructions subtracting from its duties as a roadway operator and premises owner, and excluding expert witnesses.  The jury rendered a defense verdict.

On appeal, Division III reversed the judgment and ordered a new trial due to instructional error.  The court also made clear on remand that instructions requested by the County that would have additionally curtailed the County’s duties as roadway operator and premises owner such as a superseding cause and Act of God instruction would be improper.  The court also concluded the exclusion of certain expert witnesses’ testimony was improper.

Talmadge/Fitzpatrick was pleased to assist GLP attorneys in the representation of the Evanses on appeal.

Ronald Wastewater Dist. v. Olympic View Water & Sewer Dist., et al., Supreme Court Cause No. 97599-0 (10/2020)
The Ronald Sewer District, being assumed by the City of Shoreline, claimed that the Point Wells area in unincorporated Snohomish County and portions of the Town of Woodway had been annexed into Ronald, and Ronald had a right to serve those areas, based upon an order from the King County Superior Court which approved the transfer of the Richmond Beach Sewer System formerly operated by King County to Ronald in 1986.  Neither King County nor Ronald, who were parties to their transfer agreement and the proceedings in the King County court, gave any personal notice to Snohomish County, Woodway, or Olympic View Water and Sewer District that had both areas within its corporate boundaries.  

The trial court found the annexation “transfer order” was binding on all Snohomish County entities.  The Court of Appeals reversed and directed the grant of summary judgment in favor of the Snohomish County entities finding that the area was unquestionably within Olympic View’s district, Ronald and King County failed to follow any required annexation procedures for sewer districts at the time, Olympic View never consented to the annexation or Ronald service in those areas, and that the transfer order/judgment of the King County Superior Court was void because the King County court lacked subject matter jurisdiction to issue such an order.  

The Supreme Court granted review and then unanimously affirmed the Court of Appeals determination that the King County Superior Court order was void.

Talmadge/Fitzpatrick was pleased to represent Olympic View Water & Sewer District at trial and on appeal.   

Whitemore v. Larsen, Affordable Advance Autocare, d/b/a Evergreen Tire, Court of Appeals Cause No. 36863-7-III (10/2020)
Zane Larsen bought a commercial building in Pullman, WA, to operate a tire business.  The building was built in 1950 and largely sat on historic railway land that Larsen leased from the Washington State Department of Transportation.  In 1962, a neighboring landowner who eventually passed her interest to her grandson, Mark Whitmore, quieted title to a strip of land that purportedly ran partially beneath the building.  Evidence showed that this strip of land was a historic public road annexed to the City of Pullman, known as Kaylor Road.  Whitmore’s predecessor quieted title to this land without naming the railway, the City, or even the owner of the building.  Rather than litigate this boundary dispute, prior building occupants agreed lease the land from Whitmore and his predecessors for a small sum, historically as low as $100 per year.

When Larsen bought the building, he tried to negotiate a lease with Whitmore, but Whitmore wanted an exorbitant sum, as much as $1,500 per month for the small strip of land, which Larsen refused.  Larsen also noticed several red flags, such as the lack of a proper survey and the fact that Whitmore’s processors quieted title to a public roadway without naming necessary parties with ownership interests in the land.   After negotiations broke down, Whitmore brought an unlawful detainer action to remove Larsen from the land, claiming that they had an implied landlord/tenant relationship.  Despite recognizing at times that this “boundary dispute” presented tough questions involving competing ownership interests, the trial court eventually granted the unlawful detainer, imposing damages, attorney fees, and costs totaling $165,680.40, and requiring that Larsen’s building be partially demolished or fenced off to “restore” possession to Whitmore.  

Division III of the Court of Appeals reversed in a unanimous opinion.  The court held that Whitmore improperly brought his case as an unlawful detainer action because Larsen and Whitmore did not have a landlord/tenant relationship.  

Talmadge/Fitzpatrick was pleased to represent Zane Larsen on appeal.

Schwartz v. King County, Court of Appeals Cause No. 53588-2-II (10/2020)
Carl Schwartz suffered serious injuries when he struck a bollard placed in the middle of the Green River Trail, a paved commuter bike path owned by King County. The bollard was poorly marked; it lacked diamond-shaped warning stripes required by local and federal transportation regulations. And it was painted in such a way that multiple experts testified that in certain conditions it was functionally invisible to normal users of the trail, like Carl. The County received numerous warnings from concerned citizens about the dangerous bollards on its trails. One concerned citizen even went so far as to spray paint squiggly lines and the word “POST” in the pavement around the bollard that injured Carl to warn others. The County knew about these improvised markings around the hazardous bollard, but when they faded away the County did nothing to replace them.

Carl sued, but the trial court dismissed his case on summary judgment after the County asserted that it was immune from suit under Washington’s Recreational Use Immunity Statute, RCW 4.24.210. On appeal, Division II of the Court of Appeals reversed, finding that material issues of fact remained as to whether the bollard was a known, dangerous, artificial, and latent condition, which is an exception to the recreational use statute.

Talmadge/Fitzpatrick was pleased to assist Christopher M. Davis and Maridith E. Ramsey of the Davis Law Group in representing Carl Schwartz and his family on appeal. 

Brown v. Mozer, Court of Appeals Cause No. 37361-4-III (09/2020)
After a trial on a parenting plan, the Pierce County Superior Court awarded Christopher Brown primary custody of his young daughter because her mother had a history of abusive use of conflict and withholding the child from her father without good reason.  The mother appealed, raising several new challenges to the trial court’s evidentiary rulings and asking the Court of Appeals to revisit the facts determined at trial.  The Court of Appeals affirmed and rejected every one of the mother’s challenges.  

Talmadge/Fitzpatrick was pleased to assist Christopher Brown responding to the mother’s meritless appeal.  

Surowiecki v. Hat Island Community Ass’n,, Court of Appeals Cause No. 79264-4-I (09/2020)
Hat Island, located off of Everett, was initially intended to be developed with a golf course, a marina, roads, and other amenities. It was accessed by a ferry.  That grand development never came to full fruition.  The grantor in 1962 instead directed that the island be developed in multiple divisions “in a fiscally responsible manner.”  Assessments by the homeowners association were to be “equitable.”  The homeowners association decided that uniform assessments were appropriate, even though of the 974 lots on the island, 249 were not buildable and only roughly 460 of the lots would ever have water.  Those lot owners on undeveloped lots paid the same as those lot owners who had houses or were full time residents. 

Matt Surowiecki sued the homeowners association challenging the inequity of the assessments.  The trial court granted summary judgment to the association based on the business judgment rule.  Division I reversed in a published opinion holding that the rule was inapplicable and that there were fact issues on whether the assessments were equitable. 

Talmadge/Fitzpatrick was pleased to assist John D. Huhs of the Laurel Law Group, PLLC and George A. Mix of Mix, Sanders, Thompson, PLLC in the representation of Surowiecki on appeal.

Estate of Tommy Le v. Sheriff Cesar Molina, Ninth Circuit Cause Nos. 19-35464/19-35465 (06/2020)
A King County Sheriff’s Deputy shot and killed 20-year-old Tommy Le from behind as he lay on the ground, unarmed, in the middle of a well-lit intersection near his home in Burien.  The parties disputed the facts that led to the needless shooting, but the deputy’s claim that he shot Tommy to protect himself and others was contradicted by the forensic evidence and testimony from the witnesses and other deputies at the scene.  Due to the disputed questions of fact and differences between the theories presented by the parties, the district court denied the deputy’s motion for summary judgment, rejecting his argument that he was shielded from a lawsuit by qualified immunity.

The deputy immediately appealed on the limited issue of whether he was entitled to qualified immunity.  The Ninth Circuit of the United States Court of Appeals affirmed and remanded the case for trial.  The Court found that it lacked jurisdiction to hear the immediate appeal because the deputy continued to assert disputed facts in a light most favorable to himself. 

Talmadge/Fitzpatrick was pleased to assist the law firm of Campiche Arnold, PLLC, in representing Tommy’s family on appeal.

Richard Plein, et al. v. USAA Casualty Ins. Co., Supreme Court Cause No. 97563-9 (05/2020)
The Pleins had a serious fire in their home.  USAA was their insurer.  USAA’s contractor for the home repairs did a poor job and USAA refused to pay the Pleins’ alternate living expenses as required by the policy for expenses incurred when the Pleins had to secure other living arrangements while their home was repaired.  USAA did not resolve the problems with the Pleins’ public adjuster, forcing them to retain legal counsel.  They initially consulted with Joel Hanson who, in turn, involved Ian Birk and other attorneys at Keller Rohrback.  

Keller had represented USAA in other matters until 2017.  When Keller appeared in the case, USAA moved to disqualify Hanson and Keller.  The trial court denied USAA’s motion, but the Court of Appeals reversed the trial court’s order.  

On review by the Supreme Court, that court reversed the Court of Appeals and reinstated the trial court’s order.  Under RPC 1.9, relating to conflicts arising out of counsel’s former representation of a client, Keller’s former representation of USAA was not substantially related factually to its representation of the Pleins.  Merely having formerly represented USAA and having an idea of how USAA generally handled claims did not disqualify Keller from representing the Pleins.  

Talmadge/Fitzpatrick was pleased to represent the Pleins on appeal.  

Messenger v. Whitemarsh, Court of Appeals Cause No. 80639-4-I (05/2020)
Dr. Bryan Whitemarsh was the primary care physician for Monique Messenger.  He provided global medical care to Monique, including counseling her for a variety of mental health issues.  He abused his position of trust and authority by beginning a sexual relationship with Monique and tormented her by threatening to harm her and/or himself when their relationship deteriorated.  When she ended the relationship, Dr. Whitemarsh followed through on the latter threat and ended his own life.

The Messengers sued for medical malpractice under chapter 7.70 RCW, but the trial court dismissed their claims on summary judgment, finding that Dr. Whitemarsh’s actions did not violate the standard of care expected of a primary care physician in Washington.  

The Court of Appeals reversed.  In the published portion its decision, the Court held a primary care physician who provides mental health services to a patient may be liable for malpractice for injuries arising from the doctor’s sexual relationship with that patient.

Talmadge/Fitzpatrick was pleased to assist Doug Cloud in representing the Messengers on appeal.

Joseph Nelson v. Thurston County/John Snaza, Ninth Circuit Cause No. 19-35284 (04/2020)
Joel Nelson was shot in the back and killed by a sheriff’s deputy who chose to stop and confront Nelson for “acting weird” while walking on the side of a residential road in Tumwater.  The events of the fatal shooting were hotly disputed, but the deputy’s claim that he shot Nelson to protect himself and others was contradicted by the forensic evidence and testimony from the only witnesses who overheard the entire encounter.  Due to the disputed questions of fact and stark differences between the theories presented by the parties, the district court denied the deputy’s motion for summary judgment, rejecting his argument that he was shielded from a lawsuit by qualified immunity.

The deputy immediately appealed on the limited issue of whether he was entitled to qualified immunity.  The Ninth Circuit of the United States Court of Appeals affirmed and remanded the case for trial.  The Court found that the disputed issues of fact needed to be tested by a jury. 

Talmadge/Fitzpatrick was pleased to assist Doug Cloud in representing Joel Nelson’s family on appeal.

Judges of Benton and Franklin Counties v. Killian, Supreme Court Cause No. 96821-7 (03/2020)
In accordance with longstanding planning by the Administrative Offices of the Courts, the Franklin County Clerk undertook to make court records in the Benton-Franklin County judicial district paperless.  The judges objected, claiming that they needed every filing to be kept in a paper format.  The Clerk refused to do that, but told the judges that he would provide paper copies on request.  The Clerk had previously provided the judges hardware to access the court files as needed.  The Clerk lacked a budget to keep universal paper records.  

The judges issued a local rule mandating that all court files be kept in a paper format.  When the Clerk did not obey that rule, the judges secured the issuance of a writ of mandamus compelling the Clerk to maintain paper records.  

The Supreme Court vacated the writ.  The Court noted that mandamus was inappropriate where the judges had a remedy at law – a declaratory action.  The Court also noted that the judges illegitimately intruded upon the authority of elected county clerks to keep records in a format they believe, in their discretion as separately elected county officials, was appropriate.  

Talmadge/Fitzpatrick was pleased to provide an amicus curiae brief on behalf of the Washington State Association of County Clerks.  

Habu/Chinn v. Topacio, et al., Court of Appeals Cause No. 79152-4-I (02/2020)
The parties to a dispute over the sale of real property in Everett intended for use as a cannabis shop ostensibly entered into a CR 2A agreement, but left numerous aspects of their dispute for future resolution.  Moreover, a controversy arose over the payment terms in the settlement as to whether some of the payment was contingent on the sale of the property.  The trial court nonetheless enforced the settlement.

On review, Division I reversed where the CR 2A agreement did not constitute a final, complete agreement of the parties in resolution of their dispute and there was no meeting of the minds on the payment terms.

Talmadge/Fitzpatrick was pleased to assist Kim Johannessen & Associates in the representation of Jennifer Habu and Richard Chinn on appeal.

Meyers, et al. v. Ferndale School District, Court of Appeals Cause No. 79655-1-I (02/2020)
A PE teacher at Ferndale School District’s Windward High School decided to conduct an impromptu off-campus walk with his students to discuss summer plans.  His decision was a disaster – it was contrary to District policy requiring parent/guardian approval of such excursions, it lacked adult chaperones, it was on a busy street, he allowed the students to be dispersed for 400 feet or more, and to walk with their backs to ongoing traffic.  A driver fell asleep and plowed into the students, killing two and hurting two others.

Gabriel Anderson’s estate sued the District.  The trial court dismissed the complaint concluding that the specific accident was unforeseeable despite strong, contrary evidence form the teacher and experts that the accident was within the zone of danger for such excursions.

The Court of Appeals reversed in a published opinion, holding that foreseeability and proximate cause are issues for a jury, and rejecting the District’s legal causation argument.

The District petitioned the Supreme Court for review, which was granted.  After the parties brief and argued the issues for the Court, the Supreme Court again agreed with the Estate that the District owed Gabriel a duty of care and that whether that duty was breached and the result of his death were jury issues.

Talmadge/Fitzpatrick was pleased to assist the Connelly Law Offices on appeal.

Coogan, et al. v. Genuine Parts Co., et al., Court of Appeals Cause No. 51253-0-II (02/2020)
Doy Coogan died of mesothelioma.  His Estate and family sued various entities asserting that they were responsible for his death.  Most defendants settled, leaving only two defendants – Genuine Parts Company and NAPA.  The trial that resulted was unfair to those two defendants.  One of the Estate’s trial counsel engaged in serious misconduct before the jury during trial and in closing arguments.  The trial court excluded expert testimony on Doy’s life expectancy that documented his cirrhosis of the liver.  The trial court disregarded the defendants’ post-trial CR 60 motion that asked the trial court to vacate the judgment where the Coogan family manipulated Doy’s probate proceedings to disguise intense inter-familial conflicts and conflicts between Doy and his wife that were contrary to the representation to the jury of a close family for purposes of loss and consortium damages.  The jury returned an $81.5 million verdict for the Estate and family. 

On appeal, in an unpublished opinion, the Court of Appeals unanimously reversed the judgment concluding that the exclusion of the expert testimony was prejudicial error where that testimony was that Doy’s life expectancy was five, not fifteen years, as the jury heard.  Two of the judges also held that the verdict was excessive, shocking the court’s conscience.  One of the judges found that the Estate’s counsel misconduct required a reversal, as well.

Talmadge/Fitzpatrick was pleased to assist the Boulivant Houser firm in the representation of GPC/NAPA on appeal. 

John Ley et al. v. Washington Department of Financial Institutions, Clark County Superior Court Cause No. 18-2-06616-06 (01/2020)
John Ley is a pilot who bought and sold Life Partners, Inc.’s (“LPI”) life and viatical settlement products as a way to supplement his retirement income.  He hired an attorney who told him that LPI’s products were not securities under Washington law, an opinion supported by reputable caselaw from around the country.  The Washington State Department of Financial Institutions (“DFI”) opened and closed two investigations into John’s activities, one in 2007 and another in 2010.  In both instances, DFI closed its investigations without taking any corrective action.  John made his last sale in 2014 and has not sold LPI’s products or any similar product since.

In 2016, after LPI went through a public bankruptcy proceeding, DFI sought to fine John $50,000.  DFI justified the punitive fine by claiming that John recklessly violated Washington securities laws, despite the fact that no Washington authority had ever found that LPI’s products qualified as securities and despite the fact that John relied on his attorney’s advice supported by caselaw.  After an administrative hearing, an administrative law judge upheld the fine.

On appeal, the Clark County Superior Court reversed and vacated the fine against John.  The Court found that John did not recklessly violate securities laws and that he reasonably relied on his attorney’s advice as well as DFI’s decade-long silence and failure to take any action until years after he stopped his sales.

Talmadge/Fitzpatrick was pleased to assist John Ley in his appeal to the superior court. 

Kevin Hendrickson v. Hempzen Enterprises, Court of Appeals Cause No. 79158-3-I (12/2019)
Hempzen Enterprises and its principal corporate officers (“tenants”) rented a commercial space from Kevin Hendrickson.  Hendrickson later served a complaint for unlawful detainer to evict and collect damages from the tenants.  Hendrickson did not file the complaint and demanded progress toward a resolution of the dispute.  The tenants promptly hired counsel who received copies of the complaint, communicated with Hendrickson’s attorney, and negotiated a surrender of the premises before withdrawing as counsel.  Two weeks after the tenants moved out, Hendrickson filed his unlawful detainer and received a default judgment against the tenants, without notice, after representing to the trial court that the tenants never appeared.

Shortly after the tenants first learned about the default judgment, they hired an attorney to set it aside.  The trial court denied their motion, finding that they never appeared, despite the evidence showing that they hired counsel who communicated extensively with the opposing party and negotiated a surrender of the premises on their behalf.  

On appeal, the Court of Appeals reversed.  The court held that Hendrickson engaged in misconduct and mislead the trial court by representing that the tenants never appeared to defend the action.  Thus, default judgment was improper, and the trial court erred in refusing to vacate the default judgment after the tenants moved to set it aside within a reasonable amount of time.

Talmadge/Fitzpatrick was pleased to assist the tenants and their trial counsel, Marc Stern, on appeal.  

Rosie Tillotson v. University of Washington, Court of Appeals Cause No. 78939-2-I (12/2019)
The Court of Appeals granted a new trial to our client Rosie Tillotson, a patient of the University of Washington Medical Center who suffered paralysis in her face after neck surgery.

Ms. Tillotson claimed that her surgeon was negligent by cutting in half the main trunk of her facial nerve. During her first trial, one of the witnesses was a medical school professor. This professor, who teaches the surgical procedure that was performed on Ms. Tillotson, said the UW surgeon was negligent. But before the jury even began deliberations, the trial judge dismissed the case. The trial judge ruled that this professor’s expert testimony was insufficient under Washington law to support a plaintiff’s verdict.

The Court of Appeals reversed. The appellate arguments concerned mostly the medical records, the expert testimony, and the application of the Supreme Court’s recent decisions in Reyes v. Yakima Health Dist., 191 Wn.2d 79, 419 P.3d 819 (2018) and Keck v. Collins, 184 Wn.2d 358, 357 P.3d 1080 (2015). As the Court of Appeals explained it, a jury could find “that the applicable standard of care requires the surgeon to identify the boundaries for the neck dissection procedure based on specific anatomical landmarks and not venture outside of those boundaries.” And the expert witness here testified that the surgeon “breached the standard of care by operating ‘out of bounds,’ i.e., outside of the boundaries demarcated by the relevant anatomical landmarks.” Because a jury could find in favor of Ms. Tillotson, the Court of Appeals determined that the trial court should not have dismissed Ms. Tillotson’s case in the middle of her first trial.

This appeal required us to present the medicine and the applicable law in a clear and compelling manner. Talmadge/Fitzpatrick has represented many injured patients in appeals involving claims against healthcare providers for medical negligence and failure to disclose material information (informed consent).

Talmadge/Fitzpatrick was pleased to assist Ms. Tillotson’s trial counsel, Tyler Goldberg-Hoss of Chemnick | Moen | Greenstreet, on appeal. 

Sampson v. Knight Transportation, (Supreme Court Cause No. 96264-2) (09/2019)
There has been considerable ferment in Washington law as to whether, and how, the Minimum Wage Act, RCW 49.46 (“MWA”), applies to piece work and other work associated with workers’ piece work.  In the agricultural setting, the Washington Supreme Court has held that piece workers must be paid hourly for such non-piece work activities.

In this case, the issue was whether this rule applies to truck drivers.  The trucking industry has utilized owner/operators paid on a per-trip or cents per mile basis for more than a century.  On certification from the federal district court, the Supreme Court held that the MWA does not require separate payment of truck drivers beyond the piece rate so long as such drivers are fully compensated for the work they perform in a week.  The Court approved of work week averaging for all hours worked by drivers paid on piece work basis, in accordance with long standing practice as to drivers.

Talmadge/Fitzpatrick provided an amicus curiae brief on behalf of the American Trucking Associations and the Washington Trucking Associations.

Ronald Wastewater District v. Olympic View Water and Sewer District, et al., Court of Appeals Cause No. 78516-8-I (07/2019)
The Ronald Sewer District, being assumed by the City of Shoreline, claimed that the Point Wells area in unincorporated Snohomish County and portions of the Town of Woodway had been annexed into Ronald, and Ronald had a right to serve those areas, based upon an order from the King County Superior Court which approved the transfer of the Richmond Beach Sewer System formerly operated by King County to Ronald in 1986.  Neither King County nor Ronald, who were parties to their transfer agreement and the proceedings in the King County court, gave any personal notice to Snohomish County, Woodway, or Olympic View Water and Sewer District that had both areas within its corporate boundaries. 

The trial court found the annexation “transfer order” was binding on all Snohomish County entities.  The Court of Appeals reversed and directed the grant of summary judgment in favor of the Snohomish County entities finding that the area was unquestionably within Olympic View’s district, Ronald and King County failed to follow any required annexation procedures for sewer districts at the time, Olympic View never consented to the annexation or Ronald service in those areas, and that the transfer order/judgment of the King County Superior Court was void because the King County court lacked subject matter jurisdiction to issue such an order. 

Talmadge/Fitzpatrick was pleased to represent Olympic View Water & Sewer District at trial and on appeal.

Valerie Strout v. Wal-Mart Stores, Inc., (Court of Appeals Cause No. 77235-0-I) (07/2019)
Valerie Strout was rendered a paraplegic when she fell out of a second-story apartment window while trying to grab a portable air conditioner installed in the window.  The a/c unit, manufactured by Haier America Trading LLC and sold at Wal-Mart was installed in a window built by Ply Gem Pacific Windows Corp.  The a/c unit at issue was a return item that Wal-Mart repackaged and sold without the requisite user guide for its safe installation.  

Strout sued the apartment owner, Haier, Ply Gem, and Wal-Mart.  She settled with the former two defendants. The latter two defendants moved for summary judgment, claiming they owed no duty under the common law or the Washington Product Liability Act (“WPLA”).  The trial court granted Ply Gem/Wal-Mart’s motions.  

On appeal, the Court of Appeals affirmed as to Ply Gem but reversed as to Wal-Mart, holding that Strout stated a claim against Wal-Mart under the WPLA’s seller liability section, RCW 7.72.040.  

Talmadge/Fitzpatrick was pleased to assist Douglas Cloud on appeal.  

Cesar Beltran-Serrano v. City of Tacoma, Supreme Court Cause No. 95062-8 (06/2019)
Carlos Beltran-Serrano, who was mentally ill, homeless, and Spanish-speaking, was approached by Tacoma Police Officer Michel Volk on a community caretaker basis to assist him.  Volk needlessly escalated the contact to one involving use of a taser and shooting Beltran-Serrano in the back when he fled.  Eyewitnesses did not see Beltran-Serrano engage in any aggression toward Volk.  Volk did not await the assistance of a Spanish-speaking officer who was minutes away.  

When Beltran-Serrano’s guardian ad litem filed suit against the City, the trial court dismissed Beltran-Serrano’s GAL’s negligence action against Tacoma.  The Supreme Court’s Commissioner granted direct discretionary review.  In a 5-4 decision, the Court reversed the trial court’s dismissal of the negligence action, opining that the City owed a duty to Beltran-Serrano not to use deadly force if, under the totality of the circumstances, he posed no threat.  Such a negligence claim could co-exist with a battery claim and was not barred by the public duty doctrine.  

Talmadge/Fitzpatrick was pleased to assist Jack Connelly and Micah LeBank of the Connelly Law Offices on appeal.

Kidane Beyene, et al. v. Tesfaldet Tekle, et al., Court of Appeals Cause No. 78215-1-I (05/2019)
Kidane Beyene, Gebar Ogbe, Taame Beyene, and Temeshgen Sahlu, members of the local Debre Genet Kidisti Sellassie Eritrean Orthodox Church, became concerned that the members of Church Administration, the Church’s nonprofit corporate board, were shirking their accounting duties and potentially embezzling Church funds.  After attempting to resolve the dispute internally, the Church members sued primarily in an effort to obtain an independent audit of church assets.  However, the trial court granted the Church’s CR 12 motion to dismiss on First Amendment grounds, before any discovery could be completed.

Division I of the Court of Appeals reversed, finding that the record did not support dismissal at such an early stage.  The Court found that many of the church members’ claims could be secular matters properly submitted to the trial court for dispute.  Division I cast serious doubt on several of the Church’s key arguments, noting that the lawsuit did no implicate the selection of Church ministers and finding that the Church’s claim that it was entitled to deference as a hierarchically-structured church was not supported by the record.

Talmadge/Fitzpatrick was pleased to assist the Church members on appeal.

Volkert v. Fairbank Constr. Co. and Elizabeth Ziegler, Ph.D., Court of Appeals Cause No. 77179-5-I (04/2019)
Dr. Elizabeth Ziegler, a psychologist who customarily was a defense expert and performed a CR 35 examination on plaintiff Eric Volkert in a PIP case, concluding that he malingered, received a subpoena demanding production of her records of all past examinations in which she testified on PIP or UIM claimants.  Defendant Fairbanks Construction objected to the subpoena.  Volkert moved to compel Dr. Ziegler to produce the records.  The trial court ordered Dr. Ziegler to do so. 

Division I of the Court of Appeals reversed in a published opinion finding that Dr. Ziegler’s earlier CR 35 examination reports contained health care information under the Uniform Health Care Act, RCW 70.02, and that Volkert’s counsel failed to comply with the UHCIA, including notifying Dr. Ziegler’s affected examinees. 

 Talmadge/Fitzpatrick provided an amicus brief for mental health professionals in support of Dr. Ziegler’s position on privacy of examinee reports. 

Shannon Adamson v. Port of Bellingham, Washington Supreme Court Cause No. 96187-5 (04/2019)
Shannon Adamson was seriously injured when the passenger ramp at the Port of Bellingham’s Cruise Terminal collapsed.  The Port leased certain maritime facilities to Shannon’s employer, the Alaska Marine Highway System, but it retained the sole right to repair the ramp and it agreed to keep it free of structural or mechanical defects.  The Port was on notice of a defect in the passenger ramp control mechanism that could have been repaired in a few minutes of an electrician’s time.  It chose not to fix that defect, leading to Shannon’s injury.   

A federal court jury ruled in Shannon’s favor against the Port and awarded her significant damages.  The Port appealed to the Ninth Circuit.  After oral argument, that court posed questions of law on premises/landlord liability to the Washington Supreme Court.  That court ruled unanimously in Shannon’s favor on the interpretation of Washington premises/landlord liability law.  

Talmadge/Fitzpatrick was pleased to assist Shannon and Stacey & Jacobsen on appeal before the Ninth Circuit and the Washington Supreme Court.   

Ingenco Holdings LLC v. ACE American Ins. Co., Ninth Circuit Cause No. 16-35792 (04/2019)
Ingenco/BioEnergy Washington operate a gas purification plant at the Cedar Hills Landfill that converts landfill gas into natural gas.  They purchased all risk insurance coverage for the plant from Ace Insurance Co.   

The equipment used in the purification process broke down in 2010 and Ingenco/BioEnergy thought they repaired it.  But they did not.  The equipment later broke down in 2011, shutting down the plant for months.  

Ace denied coverage for the loss, asserting that it was caused not by an external source, as the policy required, but by an inherent problem in the equipment.  Ace also asserted that the policy’s ensuing loss provision did not apply, nor did the policy’s Boiler and Machinery endorsement.  The district court agreed.  

On appeal, in a published opinion, the Ninth Circuit reversed the district court on the key coverage issues, returning the case to the district court for a trial on the merits.  

Talmadge/Fitzpatrick was pleased to assist Robert Rauch in the representation of Ingenco and BioEnergy Washington on appeal.   

Joel Kelly v. Snohomish County, Court of Appeals Cause No. 76797-6-I (04/2019)
Joel Kelly was a voluntary patient at Providence Medical Center in Everett being treated for serious brain injuries he sustained from a ladder fall.  Kelly had a tendency to wander from the rehab unit where he received treatment.  After his family visited him during Thanksgiving in November 2013, he became particularly agitated, confused, and combative with Providence staff.  Hospital staff restrained him, but they wanted Snohomish County’s Designated Mental Health Professional to evaluate him and detain him under the Involuntary Treatment Act at a more secure evaluation and treatment facility.  Despite those pleas, the DMHP refused to evaluate Kelly.  The next day, believing they had no authority to detain him given the DMHP’s decision, Hospital staff allowed Kelly to leave.  He fell down an unfinished staircase at a nearby construction site, sustaining further serious injuries.

The Kelly family settled with Providence, and a jury returned a verdict for the family against the County, determining it to be 40% at fault for Kelly’s harm.  On appeal, the Court of Appeals rejected the County’s contentions that the family had not proved gross negligence, that its tardy claim of construction site owner fault should have been considered, or that the family’s counsel engaged in misconduct.

Talmadge/Fitzpatrick was pleased to assist Lincoln Beauregard and Marta O’Brien of the Connelly Law Offices on appeal.

Scott B. Osborne v. Dep’t of Revenue, Court of Appeals Cause No. 50762-5-II (02/2019)
The Department of Revenue imposed the estate tax on the Mesdag Estate despite its use of a generation-skipping trust as between the spouses.  The Estate paid the tax and interest under protest in 2010 and then sought a refund.  The Supreme Court held that such a tax was improper on generation-skipping trusts in a 2012 decision.  That ruling was effectively overruled by the Legislature in 2013 legislation that applied retroactively to all estates whose refund cases were not final.  In an earlier ruling, the Court of Appeals held that the Mesdag Estate was such an estate and that it owed the estate tax.  

That court, however, did not resolve whether the Estate owed interest for the 2008-2010 time period.  In this case, the Court of Appeals reversed a DOR administrative decision and trial court ruling holding that the Estate owed interest because the tax was “due” in 2010 even though the Supreme Court’s 2012 ruling had held to the contrary.  Division II held that the Estate’s tax did not become due to DOR until the 2013 legislation was enacted.  Consequently, the Estate was due a refund of the interest it paid between 2008 and 2010, and interest on that sum.  

Talmadge/Fitzpatrick/Tribe was pleased to assist the Estate on appeal.  

Chan Healthcare Group, PS v. Liberty Mutual Fire Ins. Co., et al., Supreme Court Cause No. 95416-0 (12/2018)
A nationwide class action case was filed in Illinois regarding Liberty Mutual’s reimbursement of certain health care providers under its PIP and similar coverages.  The case settled.  A Washington chiropractor challenged the settlement in Illinois claiming the class representative inadequately represented the interests of Washington providers.  An Illinois trial court rejected that challenge and entered a judgment approving the settlement.  The chiropractor appealed, but the Illinois Court of Appeals affirmed the judgment, rejecting the challenge to the adequacy of class representation. 

A Washington chiropractor who was a class member, represented by the same firm who represented the previous Washington chiropractor in Illinois, filed suit in Washington challenging the Illinois settlement on behalf of a class of Washington providers.  The trial court denied Liberty Mutual’s motion to dismiss the suit based on the United States Constitution’s Full Faith and Credit Clause.  Liberty Mutual appealed. 

In a published opinion, Division I reversed the trial court, finding that the Washington suit was barred by the Illinois settlement under Full Faith and Credit principles. 

Chan then petitioned the Supreme Court for review and that Court granted review.  The Supreme Court unanimously affirmed the Court of Appeals’ decision.  

Talmadge/Fitzpatrick/Tribe was pleased to assist John Silk of Willson Smith Cochran Dickinson and Marc Fuller of Vinson & Elkins, Dallas, TX, and James Morsch of Butler Rubin Saltarelli & Boyd LLP on appeal. 

Gary Brunson ex rel. v. The Lambert PLC and Bechtel National, Inc., (Ninth Circuit Case No. 17-35402) (12/2018)
Gary Brunson settled a federal qui tam action with Bechtel National, Inc. and URS Corporation relating to certain activities at the Hanford Reservation.  Portions of that settlement were confidential, as Brunson knew.

Three months after the settlement, and upon receiving his share of the settlement proceeds, Brunson moved to set aside the confidentiality portion of the settlement.  The district court reviewed Brunson’s request, joined by various intervenors represented by Brunson’s counsel, and largely rejected Brunson’s request.  Brunson appealed.

In a memorandum opinion, the Ninth Circuit affirmed the district court decision, noting pointedly that having substantially benefitted from the settlement, Brunson could not choose to disregard material terms of it for his personal interests.  The Court also affirmed the district court’s decision not to allow an untimely effort at permissive intervention.

Margaret Rublee v. Pfizer, Supreme Court Cause No. 94732-5 (11/2018)
Vernon Rublee died of mesothelioma, a cancer he contracted from his exposure to asbestos, while working at the Puget Sound Naval Shipyards in Bremerton.  During that work, he came into products manufactured by Quigley, a company later acquired by Pfizer.  Quigley’s product had references to Pfizer on its bags and in its advertising materials.  At issue was whether Pfizer was the “apparent manufacturer” of the Quigley asbestos-containing products under § 400 of the Restatement (Second) of Torts.  The Court of Appeals concluded that Pfizer could be the apparent manufacturer, but that status was determined from the standpoint of a reasonable purchasing agent.

The Supreme Court agreed as to Quigley’s apparent manufacturer status under § 400, but concluded that such a status was determined factually from the standpoint of the ordinary product consumer. 

Talmadge/Fitzpatrick/Tribe provided an amicus brief to the Court on behalf of the Washington State Labor Council in support of Vernon’s position on appeal.  The Rublee Estate was represented by Matthew Bergman. 

Benjamin Arp v. James Riley, Court of Appeals Cause No. 76935-9-I (11/2018)
Benjamin Arp sought the protection of bankruptcy.  After the bankruptcy court entered an order requiring him to report to the trustee any new income or change in his economic circumstances, but before his final discharge by the bankruptcy court, Arp was involved in an auto accident.  He did not report to the trustee that he was going to seek damages, even though his attorney sent a settlement demand letter to the insurance company.  He received a discharge order from the bankruptcy court. 

When Arp filed suit in state court, the defendants successfully secured its dismissal on grounds of judicial estoppel – Arp took inconsistent positions in his lawsuits.  Division I of the Court of Appeals initially reversed indicating that the trial court made insufficient findings on the estoppel issue.  On remand, the trial court did so.  On appeal, Division I affirmed the dismissal of Arp’s action.

Talmadge/Fitzpatrick/Tribe assisted Gregory Wallace of Vitale & Wallace, and the St. Louis firm of Sandberg, Phoenix & von Gontard P.C. on appeal. 

H.B.H.; S.A.H.; and Trey Hamrick v. State of Washington, Supreme Court Cause No. 94529-2 (11/2018)
Five children, who had been previously abused and who were declared dependents of the State by courts, were placed in foster care.  Their foster parents, who later adopted them, abused them physically and sexually. 

When the children sued the State for its negligence in failing to properly monitor and supervise their placement, the State successfully claimed it owed them no duty and their negligence action was dismissed.  Division II of the Court of Appeals disagreed and reversed that decision, ordering a new trial.  The State petitioned the Supreme Court for review, which it granted. 

On review, the Court affirmed Division II, finding the State has a special relationship with children placed in foster care after they were declared dependents, and it owed them a duty of care in tort.  It rejected the State’s claim of sovereign immunity as well.

Talmadge/Fitzpatrick/Tribe was pleased to assist Lincoln Beauregard and Julie Kays of the Connelly Law Offices before the Supreme Court. 

Katharine Boreen v. Tracy Guerin, Director Department of Retirement Systems, Thurston County Superior Court Cause No. 18-2-00984-34 (11/2018)
Phillip Boreen received a disability retirement in 2000, after serving 28 years as a firefighter with the Seattle Fire Department pursuant to the State’s pension system for law enforcement officers and firefighters (LEOFF1).  After his retirement, he and his wife, Katharine, adopted four minor siblings and cared for them in every way as their own children. Mr. Boreen sadly passed away in 2016 after a brave fight with cancer.  When Katharine contacted the Washington Department of Retirement Systems to determine the family’s benefits in light of her husband’s passing, she was shocked to learn that her children were treated less favorably than the biological children of LEOFF1 members under the law.  As the law was written, an adopted child must have been adopted before a LEOFF1 member retired to qualify for benefits.  A biological child on the other hand faced no such precondition; a biological child automatically qualified for benefits even if born after a LEOFF1 member retired.

Talmadge/Fitzpatrick/Tribe sued on behalf of the family pursuant to 42 U.S.C. § 1988, arguing that the disparate treatment of adopted children under LEOFF1 violated their constitutional right to equal protection.  The Thurston County Superior Court agreed, declared the law unconstitutional, ordered that DRS award the family the same benefits as those received by biological children, and awarded fees and costs. 

Fredrick Thomas, et al. v. Jason Cannon, et al., Ninth Circuit Court of Appeals Cause No. 18-35040 (10/2018)
Leonard Thomas was involved in a domestic dispute with his mother and called 911.  Rather than resolving his concerns, the police of various Pierce County jurisdictions treated him as a perpetrator and employed massive SWAT paramilitary resources, escalating the situation in which Leonard was taking care of his toddler son into a major confrontation.  While one set of officers was negotiating with Leonard, who was in his house with his toddler son, to send the boy to his mother, another set of officers blew the door off his house, shot the family dog, and killed Leonard, whose last words were “Don’t hurt my boy,” as officers pummeled him.

A federal court jury returned verdicts for Thomas family members and Leonard’s Estate, including punitive damages.  The cities that employed the officers appealed.  After the family and Estate filed their briefs in the 9th Circuit Court of Appeals, the cities settled with the family and Leonard’s Estate.

Talmadge/Fitzpatrick/Tribe assisted Jack Connelly and Meaghan Driscoll of the Connelly Law Offices on appeal.

El Centro de la Raza, et al. v. State of Wash. and Roland D. Bradley, et al., Supreme Court Cause No. 94269-2 (10/2018)
Various opponents of public charter schools in Washington filed suit challenging their constitutionality both as to their funding and operation.  A King County trial court rejected that challenge, and the opponents appealed directly to the Washington Supreme Court.

Talmadge/Fitzpatrick/Tribe was asked to provide an amicus brief on the funding of public charter schools by a group of legislators from both houses and both parties.  That brief noted the Legislature’s broad authority to fund specialized educational programs and that the present funding of public charter schools did not involve common school funds specifically or General Fund revenues at all.

The Washington Supreme Court affirmed the trial court’s decision in nearly all respects.

John Babbitt v. Kingsgate Ridge Manor Assoc. of Apartment Owners, Court of Appeals Cause No. 76555-8-I (10/2018)
A condominium association, Kingsgate Ridge Manor Association, was in financial trouble.  It asked John Babbitt for assistance.  Babbitt agreed to loan Kingsgate $600,000 in exchange for a promissory note. Babbitt also caused his construction company, TTI, to submit a bid for a retaining wall renovation project that Kingsgate needed. 

Kingsgate made only a few payments under the promissory note before defaulting.  Babbitt and Kingsgate negotiated and adjusted the payment schedule under the note, but to no avail.  Eventually, Babbitt sued Kingsgate to recover on the note.  Kingsgate responded saying the promissory note was invalid and cross-claimed against TTI for breach of the wall contract, claiming that TTI should have obtained a permit before building.

After a bench trial, the trial court entered judgment in favor of Babbitt on the promissory note claim, and judgment for Kingsgate against TTI for breach of contract.  However, the trial court improperly disregarded TTI’s corporate form, held Babbitt personally liable for TTI’s breach of contract, and refused to award Babbitt post-judgment interest on the entire judgment.

Babbitt retained Talmadge/Fitzpatrick/Tribe to defend him again of Kingsgate’s appeal on the promissory note judgment, and to cross-appeal the interest and corporate disregard issues.

The Court of Appeals, Division One, affirmed the trial court’s judgment on the promissory note.   It reversed the trial court’s rulings on post-judgment interest and disregarding the corporate form.

In re the Marriage of Heidi and Donald Kaplan, Court of Appeals Cause No. 76306-7-I (07/2018)
Heidi and Donald Kaplan were married for 26 years.  Donald was a highly compensated oil company executive and Heidi was a stay-at-home mother for the couple’s two children. 

Notwithstanding precedent requiring courts in dissolution actions involving long term marriages to place the parties in an economic position post-dissolution roughly equivalent to their pre-dissolution financial status, the trial court did not do so, giving Donald the bulk of the parties’ liquid assets and requiring him to pay Heidi’s maintenance for 6 years.  From that maintenance, Heidi was expected to pay the mortgage, health care, child support, living expenses, and re-training costs.  The court also imputed additional income to Heidi asserting that as a stay-at-home parent, she was voluntarily “unemployed” under the child support statute.  

On appeal, the Court of Appeals reversed the trial court’s decision on child support, a decision manifestly unfair to stay-at-home parents, but it determined that the principle of rough parity in pre- and post-dissolution economic circumstances for the allocation of marital resources in a long-term marriage was not a rule but an aspirational goal, affirming the trial court. 

Talmadge/Fitzpatrick/Tribe was pleased to represent Heidi Sky on appeal.

Sachdev v. Oregon Medical Board, Court of Appeals Cause No. A158152 (07/2018)
Dr. Naina Sachdev, a medical doctor who utilizes alternate medical treatments, was disciplined by the Oregon Medical Board.  The Board revoked her license to practice, fined her $10,000, and assessed costs.

In initiating the case against her, however, the Board’s statement of charges against Dr. Sachdev was very general in nature and did not always specifically reference Oregon statutes that she allegedly violated. 

Dr. Sachdev appealed the Board’s decision and sanction.  The Oregon Court of Appeals reversed the charges, except one relating to her post-disciplinary practice, because Dr. Sachdev did not receive adequate notice of the charges against her.  The Court remanded the case to the Board for reconsideration of the sanction in light of the Court’s opinion. 

Talmadge/Fitzpatrick/Tribe was pleased to assist Dr. Sachdev on appeal as pro hac vice counsel in Oregon.

Sound Transit v. City of Seattle, Supreme Court Cause No. 94255-2 (07/2018)
Sound Transit determined to exercise its power of eminent domain to take property for its East Link Light Rail in Bellevue, including a part of the City of Seattle’s easement for future electrical transmission lines to City Light’s Skagit River hydro electrical facilities.  Sound Transit also proposed to transfer much of the property it condemned to the City of Bellevue for a road-widening project.

Seattle opposed the condemnations asserting Sound Transit lacked express statutory authority to condemn the property of another government, particularly a first class, home rule city like Seattle, and noting the lack of necessity when Sound Transit gave much of the property to Bellevue.  Seattle also argued that the condemnations were precluded by Seattle’s prior public use of land.  Trial courts allowed the condemnations to go forward.  

On direct appeal, the Supreme Court concluded Sound Transit had the statutory authority to condemn the property. However, the Court also unanimously agreed that the prior public use doctrine applied, and that the trial court had erred in failing to address the issue.  It reversed and remanded for further proceedings.

Talmadge/Fitzpatrick/Tribe was pleased to assist the Seattle City Attorney’s Office on appeal.

Porter Bros. Constr. v. Kenco Constr., Court of Appeals Cause No. 74069-5-I (06/2018)
Kenco Construction was the roofing and window subcontractor on the Highline School District’s Raisbeck Aviation High School.  Porter Brothers Construction was the general contractor for the project.  Due to Porter Brothers’ mismanagement of the project, the work by subcontractors necessary for Kenco to perform its services was tardily, and often improperly, performed.  Porter Brothers asked Kenco to undertake the extra work necessary to make the project ready for its roofing and window work.  Kenco did so, and then installed the windows and roofing to the District’s satisfaction.

Despite Kenco’s efforts, Porter Brothers refused to make contractually-mandated progress payments to Kenco for its work, even though it received payments from the District and certified to the District that it had no issues with its subcontractors.  It also refused to pay for any of the extra work Kenco had to perform. 

Kenco sued Porter Brothers and its sureties for breach of contract.  Porter Brothers raised a series of technical defenses, but the jury ruled squarely in Kenco’s favor. 

On appeal, the Court of Appeals affirmed the judgment on the jury’s verdict.  Talmadge/Fitzpatrick/Tribe was pleased to assist Martin, Barokas & Tomlinson in Kenco’s representation on appeal.

Shannon Leahy v. State Farm Mut. Automobile Ins. Co., Court of Appeals Cause No. 76272-9-I (05/2018)
Shannon Leahy was injured in an automobile accident that lit up her dermatomyositis (“DM”), an autoimmune condition causing muscle inflammation, fatigue, and rashes.  After settling for the limits of the liability insurance limits that applied for the other drivers in the accident, Leahy sought uninsured/underinsured motorist coverage benefits (“UIM”) under a coverage she bought from her own insurer, State Farm. 

State Farm did not believe Leahy’s DM resulted from the auto accident, despite medical expert opinions to the contrary Leahy provided it.  As a result, State Farm made low settlement offers to Leahy never exceeding more than roughly $10,000.  Leahy was forced to sue State Farm under the UIM contract, and a jury determined her damages to be nearly $885,000. 

Leahy then amended her complaint to allege common law bad faith and violation of the Consumer Protection Act and Insurance Fair Claim Act by State Farm.  State Farm refused to turn over its claims files to Leahy’s counsel.  Nevertheless, the trial court dismissed Leahy’s extracontractual claims on State Farm’s motion for summary judgment. 

Division I reversed the trial court in a published opinion.  While the court concluded the trial court did not abuse its discretion in refusing Leahy access to privileged documents in State Farm’s files after an in camera review of them, the Court said dismissal of Leahy’s extracontractual claims against State Farm was premature where material fact issues were present on those claims.

Talmadge/Fitzpatrick/Tribe was pleased to assist Scott Lundberg, Alex French, and Jeff Comstock of GLP Attorneys on appeal.

Britt Easterly v. Clark County, Court of Appeals Cause No. 50297-6-II (03/2018)
Britt Easterly was the subject of a hostile work environment and he recovered damages from a jury under Washington’s Law Against Discrimination.  That law also allows the recovery of attorney fees and legal expenses.  The trial court made an award of fees based on lowered hourly rates for Easterly’s counsel and refused to award a multiplier without explanation.  That court also declined to award the rates of a media service that consulted with Easterly’s counsel, again without explaining why the services of such a non-lawyer were not recoverable.

On appeal, the Court of Appeals reversed the trial court fee award and remanded the case to the trial court for entry of proper findings on the fee issues.

Talmadge/Fitzpatrick/Tribe was pleased to assist Tom Boothe on appeal.