Talmadge Fitzpatrick | Knowledgeable, Experienced, Efficient | Seattle 206-574-6661
Washington appeals attorneys
Talmadge Fitzpatrick | Knowledgeable, Experienced, Efficient | Seattle 206-574-6661

Decisions

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. 

Ella Elias and David Proudfoot v. City of Seattle, Court of Appeals Cause No. 75848-9-I (01/2018)

Sergeant Ella Elias and Captain Proudfoot were the subjects of retaliation by the Seattle Police Department after Elias reported instances of favorable treatment of certain African American officers for overtime assignments, and Proudfoot stood by her when Department leaders tried to improperly discipline her.  A jury awarded substantial damages to both officers for such retaliatory actions, and the City appealed. 

Notwithstanding the City’s arguments of excessive damages, alleged misconduct of the officers’ trial counsel, erroneous admission of expert testimony, the lack of a mitigation instruction, and cumulative error, the Court of Appeals affirmed the judgment on the jury’s verdict and awarded fees on appeal to the officers. 

Talmadge/Fitzpatrick/Tribe was pleased to assist Lincoln Beauregard and Julie Kays of the Connelly Law Offices on appeal.  

 

Richard Eggleston v. Asotin County, Court of Appeals Cause No. 34340-5-I (12/2017)

Richard Eggleston submitted numerous Public Records Act (“PRA”) requests to Asotin County regarding a bridge project that urgently needed to be completed in an area that contained Native American burial sites.  The County responded to his requests, but did not produce an email between its engineering contractor and a prospective consultant on cultural review for the project, an email the County never actually possessed.  Eggleston also sought certain preliminary engineering plans.  The County asserted those plans were exempt from PRA disclosure under a statutory exemption.  Eggleston sued.  

The trial court held that the County did not violate the PRA as to the first document as it was not a public record.  As for the other two documents, after a trial, the court ruled for Eggleston and assessed penalties and attorney fees as prescribed by the PRA.  Eggleston appealed as to the first document, and sought additional penalties and costs.

Division III affirmed the trial court in an unpublished opinion. In particular, that court agreed the email the County never possessed was not a public record, that Eggleston was not entitled to added penalties for each of his numerous, but essentially similar, PRA requests, and that his request for added costs was unreasonable.

Talmadge/Fitzpatrick/Tribe was pleased to assist Jane Risley of the Asotin County Prosecutor’s Office on appeal.

Talley; Lawson v. Lanphere Enterprises of Wash., Inc., d/b/a Renton Honda, Court of Appeals Cause No. 76452-7-I (11/2017)

Debra Talley and Amy Lawson were allegedly injured when a car driven by a Renton Honda employee in which they were passengers crashed. They sued Renton Honda. That firm admitted liability, but denied that the crash was the proximate cause of the injuries about which they complained because there were other explanations for their alleged injuries and such injuries were exaggerated in any event. A King County jury agreed, finding no proximate cause.

Talley and Lawson appealed. In that appeal, they did not assign error to the trial court’s instructions on proximate cause or the jury verdict form indicating that the jury need not reach damages if it ruled for Renton Honda on proximate cause. Instead, they argued they were entitled to a new trial because they had been injured and should have been awarded damages.

The Court of Appeals affirmed the trial court’s judgment on the jury’s verdict and ruled that the appeal was frivolous, requiring Talley and Lawson to pay Renton Honda’s appellate fees.

Talmadge/Fitzpatrick/Tribe was pleased to assist Jillian Hinman of Forsberg & Umlauf in the representation of Renton Honda on appeal.

Todorovic v. Ameriprise Auto Home Ins., IDS Prop. Cas. Ins. Co., and DeGrazia's Auto , Court of Appeals Cause No. 75274-0-I (10/2017)

The trial court granted summary judgment dismissing all of Nina Todorovic's claims.  Todorovic failed to move for reconsideration, nor did she appeal the decision.  In spite of the summary judgment dismissal, six days later, Todorovic again brought the same claims against the same defendants, as well as raising new allegations. 

Talmadge/Fitzpatrick/Tribe represented respondent DeGrazia’s Auto Body on appeal to the Washington State Court of Appeals, Division I.  All of Todorovic’s claims and charges were barred by the statute of limitations and the Court of Appeals affirmed the summary judgment dismissal.

Rolf and Bobbi Arden v. Forsberg Umlauf, P.S., Supreme Court Cause No. 93207-7 (09/2017)

Rolf Arden shot and killed his neighbors’ puppy.  The local prosecutor considered criminal charges against Rolf.  When the neighbors sued the Ardens for Rolf’s vicious acts, the Ardens’ insurer, Hartford, assigned experienced defense counsel from the Forsberg & Umlauf law firm (“Forsberg”) to defend them.  Thereafter, Hartford sent the Ardens a reservation of rights letter.  The Ardens continued to employ the services of their personal lawyer, with whom the Forsberg attorneys communicated.  The Forsberg attorneys represented the Ardens in discovery and settlement negotiations.  The directive to the Forsberg attorneys from the Ardens and their personal attorney was that Hartford had to pay any settlement in full.  Settlement talks fell through when the neighbors made very high settlement demands.  The local prosecutor filed criminal charges against Rolf.  Ultimately, the civil claims settled without the Ardens paying a dime.  They sued Forsberg for legal malpractice and breach of fiduciary duty, alleging its failure to communicate with the Ardens on settlement and its alleged failure to disclose past insurance defense work was a conflict of interest. 

The trial court dismissed the Ardens’ claims, and Division II affirmed.  The Supreme Court granted review and affirmed as well, re-affirming its decision in Tank on the insurer’s duty to an insured as well as the duties of insurance defense counsel.  It rejected the proposition that a long standing relationship between a law firm and an insurer was a per se conflict of interest.  The Court discussed how Forsberg met its Tank obligation to the Ardens and conflict of interest principles.  It ultimately concluded the Ardens could not prove harm or damages under any of its liability theories.

Talmadge/Fitzpatrick/Tribe was pleased to assist Lee Smart in the representation of Forsberg & Umlauf on Supreme Court review.  

Gibson v. American Construction Co., Inc., Court of Appeals Cause No. 49340-3-II (09/2017)

Jeremy Gibson, a marine mechanic, fell through the hatch of a crane barge moored at the defendant’s dock in 2013 and was seriously injured.  This type of injury is in the so-called zone of uncertainty between land-based remedies like the Longshore and Harbor Workers Compensation Act (“LHWCA”) and sea-based common law and statutory remedies like the Jones Act.  Although Congress excluded sea-based workers from the LHWCA, it made clear that any Jones Act recovery against an employer was offset by LHWCA benefits the worker received; no double recovery would occur. 

Gibson presented a LHWCA claim to the U.S. Department of Labor, received benefits, and ultimately settled his LHWCA claim.  The precise applicable jurisdiction – land or sea – was never adjudicated as part of the USDOL administrative process.  He then sued his employer under the Jones Act.  The trial court dismissed the action.  

On appeal, applying U.S. Supreme Court and Ninth Circuit precedent, Division II of the Court of Appeals reversed, concluding that in the absence of an actual adjudication of jurisdiction in the LHWCA administrative process, an injured maritime worker like Gibson could initially receive LHWCA benefits and later present a Jones Act claim to a jury. 

Talmadge/Fitzpatrick/Tribe was happy to assist Zachary Herschensohn of Thornton Mostul Herschensohn, PLLC on appeal. 

William Newcomer et al. v. Michael Cohen et al., Court of Appeals Cause No. 48223-9-II (05/2017)

William Newcomer invested in a real estate project developed and managed by Michael Cohen on Cohen’s representation that he would invest an equivalent amount of cash in the project.  Cohen did not do so and instead borrowed money from other sources he controlled to fund the project. 

When Newcomer discovered Cohen’s fraudulent conduct, he filed suit under Washington’s securities law to recover his investment.  After a lengthy trial, the jury ruled in Newcomer’s favor.  Cohen appealed. 

In a detailed unpublished opinion, the Court of Appeals rejected Cohen’s largely factually-based arguments.  That court determined the jury was properly instructed on the law, including damages under Washington’s securities law, and substantial evidence supported its verdict.  Newcomer recovered fees at trial and on appeal.

Talmadge/Fitzpatrick/Tribe was pleased to consult with Russell Knight of Smith Alling P.S. on the appeal.

Nam Chuong Huynh et al. v. Aker Biomarine Antarctic AS et al., Court of Appeals Cause No. 74241-8-I (05/2017)

Nam Huynh was a Seattle resident who worked as a welder for a Seattle company that contracted with two Norwegian companies to refurbish fishing vessels.  As part of his work he was sent to Montevideo, Uruguay to work on a ship, where he was seriously injured. 

Huynh sued the two Norwegian companies in the King County Superior Court.  That court concluded that it had jurisdiction over the first Norwegian company that merged with the second, post-accident, for the negligence of the second company imputed to it, and it had jurisdiction over the second for its successor liability. 

The Court of Appeals affirmed the trial court’s ruling, finding the second company to be the party that contracted with Huynh’s employer for work on the vessel on which he was injured and that the court had specific personal jurisdiction over it.  The court also concluded that the court only had personal jurisdiction over the first company for potential liability attributed to it as the merged successor to the first. 

In sum, Huynh’s action was held to be able to proceed in King County.

Talmadge/Fitzpatrick/Tribe was happy to assist Fury Duarte in the representation of Nam Huynh on appeal.  

Charles Pamplin v. Safway Services, Court of Appeals Cause No. 75634-6-I (04/2017)

Parker Drilling Management Services, Inc. subcontracted with Charles Pamplin to complete welding work and Safway Services, LLC to build, maintain, and dismantle scaffolds at an oil rig construction site.  One night while Pamplin was working, a scaffold fell over as he was climbing it, leaving him permanently disabled.  Pamplin sued Safway for negligence in failing to properly maintain the scaffolding. 

At trial, Safway claimed that unknown third parties had tampered with the scaffold, including removing barricade tape that signaled the scaffold was unsafe, and the crew that built the scaffold could not have foreseen such tampering.  Safway moved for judgment as a matter of law, arguing that Pamplin had failed to prove that Safway’s alleged negligence was the proximate cause of his injury, and requested that the court include superseding cause language in its jury instructions on proximate cause.  The trial court denied both the motion and the request, the jury ultimately awarded Pamplin $615,735.25.  After the trial court denied Safway’s renewed motion for judgment as a matter of law or a new trial, Safway appealed the rulings on the motions and request for jury instructions. 

The Court of Appeals affirmed the trial court’s rulings.  The Court noted that an injury may have more than one proximate cause, and a third party’s concurrent negligence does not necessarily break the causal chain between a defendant’s negligence and a plaintiff’s injury.  Because Safway did not construct or secure the scaffold in accordance with Washington Administrative Code safety provisions, their negligence was still a proximate cause of Pamplin’s injuries and the trial court therefore properly denied Safway’s motions for judgment as a matter of law.  With respect to the jury instructions, the Court found that Safway’s claims of third-party vandalism did not constitute a superseding cause under any of the Restatement (Second) of Torts factors.  Safway breached its duty to properly construct and secure the scaffold, and a reasonable jury could have certainly found Safway’s breach to be an original cause of Pamplin’s injury.  Therefore, the trial court’s denial of Safway’s motions for judgment as a matter of law and request for jury instructions on superseding cause were proper. 

Talmadge/Fitzpatrick/Tribe was pleased to assist Thomas D’Amore of the D’Amore Law Group on appeal.  

Judson D. Forks v. EnCon Wash. LLC, Court of Appeals Cause No. 48852-3-II (03/2017)

Judson Forks, an employee of the staffing agency Aerotek, was injured while working on assignment for EnCon. Aerotek had a contract to provide EnCon with contract employees, including Forks. When Forks sued EnCon for negligence, the trial court granted EnCon's motion for summary judgment based on the Industrial Insurance Act's prohibition against employees suing their employers for negligence. Forks appealed this ruling on the grounds that he had not consented to an employment relationship with EnCon and was therefore not an employee of theirs.

The Court of Appeals affirmed the trial court's decision. Under the contract between EnCon and Aerotek, EnCon assumed responsibility for controlling, managing, and supervising the work of contract employees such as Forks. EnCon also paid Forks's wages, plus a 1.5 percent markup, to Aerotek for distribution to Forks. Lastly, Forks's contract expressly stated that for purposes of worker's compensation he would be considered an employee of EnCon. Therefore, the Court determined that Forks's assertion that Aerotek was his sole employer did not constitute a genuine issue of material fact, and thus the trial court's granting of EnCon's motion for summary judgment was proper.

Talmadge/Fitzpatrick/Tribe was pleased to assist Gregory Wallace of the Law Office of Vitale and Wallace on appeal.

Tabingo v. American Triumph and American Seafoods Co., Supreme Court Cause No. 92913-1 (03/2017)

Allan Tabingo lost two fingers while working onboard a fishing trawler in Alaska when a hatch closed on his hand. Tabingo's shipowner employer knew the lever operating the hatch was broken and had not repaired it for two years. As a result, Tabingo sued his employer under federal maritime law for maintaining an unseaworthy vessel and sought to recover punitive damages. The trial court dismissed the punitive damages aspect of Tabingo's unseaworthiness claim.

The Washington Supreme Court granted direct discretionary review of that decision and unanimously reversed, holding that Tabingo could present a claim for punitive damages in his vessel unseaworthiness action. Following the reasoning of the United States Supreme Court, the Court held that federal maritime law generally recognizes the recovery of punitive damages and Congress had not acted to override that principle of federal maritime common law for personal injury claims involving vessel unseaworthiness.

Talmadge/Fitzpatrick/Tribe was happy to assist Joe Stacey and Jim Jacobsen of Stacey & Jacobsen LLP on appeal.

Guardianship of Christopher Junk, Court of Appeals Cause No. 47283-0-II (12/2016)
RBC Trust Co. historically provided guardianship services to Christopher Junk, a severely injured man who recovered a settlement of his claims for personal injuries when he was a boy; a special needs trust was established from settlement proceeds. RBC delegated investment duties to UBS Financial Services. RBC/UBS charged fees to the trust that had been historically approved by courts beginning in 2009.

On his own (neither Christopher nor his father who assisted Christopher complained about the fees), a trial judge raised concerns about the fees and appointed a guardian ad litem who issued a report critical of the RBC/UBS fees, despite their explanations of the extensive and legitimate services provided to the trust. In fact, because of their services the trust prospered. Based on the report, the court reduced past fees charged for 2013-14 and set new, lower fees for the future.

On appeal, the Court of Appeals reversed the trial court's decision, determining that the trial court had abused its discretion in reducing the legitimate fees of RBC/UBS. The 2009 court-approved fee schedule was proper and RBC/UBS had not deviated from it. The trial court erred in lowering the fee schedule approved in 2009 by failing to analyze the Supreme Court's Powell factors for a trustee's fees.

Talmadge/Fitzpatrick/Tribe was pleased to assist Joshua Brothers and Katrina Bruen of Brothers Henderson Dussault, P.S. in the appeal.
Kirkendoll v. Kirkendoll, Court of Appeals Cause No. 47832-3-II (10/2016)
After 27 years of marriage and a contentious dissolution trial, the parties' assets were carefully divided, and parental responsibilities were fairly and sensibly allocated. Ms. Kirkendoll was ably represented at trial by William B. Pope.

Nevertheless, Mr. Kirkendoll chose to continue the litigation on appeal. Talmadge/Fitzpatrick/Tribe was retained to defend the carefully considered judgment. Division II of the Court of Appeals affirmed the trial court's decision in its entirety.
Washington Counties Risk Pool, et al. v. Clark County, Wash., et al., Supreme Court Cause No. 91154-1 (10/2016)
Larry Davis and Alan Northrop were incarcerated for 19 years for a crime they did not commit. Clark County and one of its detectives were implicated in an improper investigation of the crime that resulted in their incarceration, as well as possible destruction of evidence.

After Davis and Northrop were exonerated of the criminal charges, they filed suit under 42 U.S.C. § 1983 against the County and its detective. They, in turn, presented a claim to the Washington Counties Risk Pool under the County's coverage with the Pool, as well as the Pool's excess carrier, Lexington Insurance Company. The Pool and Lexington denied the County a defense or coverage.

In the course of the trial in federal court on the 1983 claim, the County and the detective settled with Davis and Northrop, paying them a settlement and assigning their insurance claims, both contractual and extracontractual to Davis and Northrop.

When Davis and Northrop sued the Pool and Lexington in Cowlitz County Superior Court on the assigned insurance-related claims, the court upheld the Pool's denial of a defense and ruled that assignment was improper because a Pool was allegedly not subject to Washington's insurance common law. The court also dismissed claims against Lexington because its liability was derivative of the Pool's.

Talmadge/Fitzpatrick/Tribe assisted counsel for Davis and Northrop in securing direct discretionary review by the Supreme Court. After oral argument on the merits, the Pool and Lexington settled with Davis and Northrop.
Ocwen Loan Servicing v. Bauman, Court of Appeals Cause No. 73548-9-I (09/2016)
Michael Bauman purchased at auction real property that had been foreclosed by a water district for failure to pay water bills. The foreclosure judgment erroneously stated that the sale would be subject to a two-year right of redemption contained in a completely inapplicable statute. Ocwen Loan Servicing attempted to exercise the right of redemption more than a year after the sale, claiming it was the correct party in interest even though it did not have physical possession of the promissory note and deed of trust attached to the property. The trial court dismissed Ocwen's claims to the right of redemption on summary judgment. The judge concluded that Ocwen had an equitable right of redemption based on the erroneous language of the foreclosure order, but that Ocwen had failed to present sufficient evidence to create a genuine issue of material fact that it was the correct party in interest.

Ocwen appealed, and Talmadge/Fitzpatrick/Tribe represented Bauman as respondent and cross-appellant. The Court of Appeals agreed with Bauman that the trial court had erred in granting Ocwen an equitable right of redemption that it was not granted by statute. The Court concluded that a one-year right of redemption, rather than the erroneous two-year term, applied, and that Ocwen had not exercised the right in time. The Court affirmed dismissal of Ocwen's claim on this alternate ground
Hernandez v. Boothe, Ninth Circuit Court of Appeals Cause No. 13-35131 (09/2016)
Attorney Thomas Boothe, lead counsel for a Latino man who a victim of employment discrimination, was found in contempt by a federal district court judge after speaking in the hallway with opposing counsel of record. The opposing counsel he spoke to, Deborah Quinn, claimed that he had tried to intimidate her, and pointed out that despite her status as counsel for the defendant, she was listed as a potential witness in the case. The judge appointed Boothe's other opposing counsel, Robert Christie, to prosecute Boothe for civil contempt for "witness intimidation." The judge also asked Mr. Christie to prosecute Boothe for making faces during the trial, which ostensibly led to a mistrial. The judge found Boothe in contempt and ordered him to pay sanctions in the form of opposing party attorney fees associated with preparation for the first trial.

Talmadge/Fitzpatrick/Tribe represented Boothe on appeal from the contempt citation. The Ninth Circuit Court of Appeals reversed the contempt order and sanctions, saying they could not be based on Boothe "making faces" because the judge found Boothe did not do so in bad faith. The Ninth Circuit also questioned how a mistrial could be caused by speaking to opposing counsel who ethically could not be called as a witness. Since the district court judge stated on the record that the so-called "witness intimidation" did not lead to the mistrial, the panel remanded for clarification as to how the sanctions could possibly be justified.
James Hopkins v. Seattle Public School District No. 1, Court of Appeals Cause No. 73147-5-I (07/2016)
James Hopkins, Jr., a middle school student, was viciously assaulted and seriously injured by another student who had a long history of violent conduct. In the trial for his personal injuries, the trial court gave a general negligence instruction, but failed to instruct the jury on the special protective duty to Hopkins owed by school districts to all students under their care. Instead, the trial court advised the jury of the Seattle School District's obligation to mainstream the student who assaulted Hopkins. The jury returned a verdict for the District.

The Court of Appeals reversed the judgment on the jury's verdict, concluding that the trial court erred in failing to advise the jury of the District's special protective duty to Hopkins with regard to foreseeable risks of harm from students like the assaulting student. The court ordered a new trial.

The District petitioned the Supreme Court for review and that Court denied review.

Talmadge/Fitzpatrick/Tribe was pleased to assist Kyle Olive of Olive | Bearb Law Group PLLC with the appeal.
Georgiana Arnold v. City of Seattle, Court of Appeals Cause No. 71445-7-I (05/2016)
Georgiana Arnold was a City of Seattle manager. Her subordinate failed to make sufficient inquiry into a whistleblower's allegation of contractor improprieties. The City determined to terminate Arnold's City employment as a result.

Through the intervention of her counsel, Arnold's supervisor relented and decided instead to demote Arnold, at a very large reduction in salary. Arnold challenged her demotion and loss of salary before the Seattle Civil Service Commission. After a lengthy hearing that was the essential equivalent of a civil trial, Arnold prevailed. She was not demoted, and her loss of pay was restored. She was given a two-week suspension.

Having prevailed, Arnold sought a fee award, which was denied by the Commission's hearing examiner. She filed an action in superior court under RCW 49.48.030, a statute providing for fee awards in actions where an employee recovers wages withheld by an employer. The trial court denied a fee award. On appeal, the Court of Appeals reversed, directing that Arnold recover reasonable fees at trial and on appeal.

The City petitioned the Supreme Court for review, and the Court granted review. In a unanimous opinion, the Washington Supreme Court affirmed the Court of Appeals decision, awarding Arnold her fees at hearing, at trial, and on appeal.

Talmadge/Fitzpatrick/Tribe was pleased to assist Arnold's trial counsel, Judith Lonnquist, on appeal.
Geoffrey Chism v. Tri-State Construction, Inc., et al., Court of Appeals Cause No. 72844-0-I (05/2016)
Geoffrey Chism worked for many years as an outside lawyer for Tri-State Construction. He and Tri-State's leadership then agreed to have Chism become its in-house general counsel. Chism's work as Tri-State's in-house intensified and he worked many more hours, saving the company in particular from the potentially disastrous consequences of a B.C. construction project. He actually became president of Tri-State's B.C. affiliate.

Chism's compensation as in-house counsel evolved over time. Tri-State agreed to pay him bonuses, as it did for many other corporate officers.

Although former corporate leadership determined that Chism was due a bonus for each of three years, new corporate leadership at Tri-State reneged on that obligation. Chism resigned and sued Tri-State under RCW 49.52 for improperly withholding the bonuses.

A jury agreed with Chism and awarded him the full bonuses he earned. The trial court, however, decided that Chism had to disgorge bonuses paid and that he forfeited bonuses not paid due to alleged RPC violations.

The Court of Appeals reversed the trial court and reinstated the jury's verdict, pointedly noting that RPC provisions did not apply to in-house counsel generally and there was not authority for finding specific RPC violations by Chism.

Talmadge/Fitzpatrick/Tribe was pleased to assist Lindsay Halm and Thomas Breen of Schroeter Goldmark & Bender in representing Geoffrey Chism on appeal.

Tri-State petitioned the Washington Supreme Court for review. We opposed the petition. The Supreme Court denied review.
Michael Ames v. Pierce County, Court of Appeals Cause No. 45880-2-II (05/2016)
Michael Ames, a former Pierce County Sheriff's Department detective (now retired), filed an action seeking a writ of prohibition and declaratory relief regarding the decision of the Pierce County Prosecutor's Office to disclose information about Ames' actions in other cases to criminal defense lawyers that might be a basis for impeaching his testimony. Under Brady v. Maryland, the government must disclose any potentially impeaching information about a witness.

The trial court dismissed Ames' action because he failed to state a basis in the law for a writ of prohibition, a special common law proceeding to determine if a person had jurisdiction to act, where that court concluded the Prosecutor's Office had authority to act under Brady, or for declaratory relief where no justiciable controversy existed and a significant public matter was not implicated.

The Court of Appeals, Division II, affirmed the trial court decision because the Prosecutor's Office had broad jurisdiction under Brady to disclose potential impeachment evidence and no live controversy was present where Ames was not slated to be called as a witness in future cases.

Ames petitioned the Supreme Court for review and, when an amicus curiae memo was filed in the case, sought to submit a late response to it. The Court denied Ames' petition and his motion to submit a late response.

Talmadge/Fitzpatrick/Tribe was pleased to assist the County on appeal.
Esther Kim, et al. v. Lakeside Adult Family Home, et al., Supreme Court Cause No. 91536-9 (05/2016)
When two employees of Alpha Nursing ("Alpha") witnessed the severe facial bruising, unconsciousness, dragging, and illegal drugging of Ho Im Bae, a helpless patient, they failed to act with urgency. Contrary to Washington law regarding the duties of mandatory reporters to immediately do so, they did not call law enforcement or emergency services. They did not even call the owner of the facility. One simply went home without taking action, the other belatedly left a voice mail message for DSHS. The abusing care worker killed Bae shortly thereafter. Had the employees acted immediately, as they had a duty to do under the law, the life of an innocent and vulnerable woman could have been saved.

The trial court here concluded that no jury could reasonably believe that Alpha or its employees were in any way culpable in the death of Bae, and dismissed the claims of her family on summary judgment.

Bae's family appealed. Alpha cross-appealed, arguing that one of the two nurses, Christine Thomas, was not properly served after she fled to Norway, despite the fact that her Washington counsel concealed her address.

The Court of Appeals affirmed dismissal of the claims, agreeing with the trial court that the Alpha employees had no duty to Bae, because they did not have reasonable cause to believe Bae was being mistreated. The Court concluded Thomas was properly served, but as the claims against her were dismissed, the point was moot.

Bae's family petitioned the Washington Supreme Court for review. Alpha requested review of the service of process issue.

In a 9-0 opinion, the Court reversed the trial court and the Court of Appeals, holding that the AVAA implies a tort cause of action for violation of the mandatory reporting requirements, and that Thomas was timely served, given the immense obstacles created by her decision to flee to Norway.

Talmadge/Fitzpatrick/Tribe was pleased to handle the appeal with the assistance of trial counsel Alex French and Scott Lundberg of GLP Attorneys, P.S.
Slack v. Luke, Court of Appeals Cause No. 32921-6-III (03/2016)
Tammy Wolf Slack consulted attorney Lucinda Luke about her employment at the Department of Corrections. Slack believed Luke was retained to present an employment claim involving failure to accommodate her alleged disabilities. Luke believed she was consulted to provide a second opinion on the viability of such a claim. Luke concluded Slack's claim was not meritorious, but, in the meanwhile, the statute of limitations ran on the claim. Slack sued Luke and her firm for malpractice.

The trial court dismissed Slack's claim because she had no expert support for the causation element of her claim -- that it had sufficient merit to be filed. In a published opinion, the Court of Appeals affirmed, albeit on slightly narrower grounds. The court held that expert testimony was necessary to establish that Slack had a meritorious prima facie case, one that would survive summary judgment. Because Slack failed to provide expert evidence on the causation element of a legal malpractice claim, her claim was properly dismissed.

Talmadge/Fitzpatrick/Tribe was pleased to assist Stephen C. Smith of Hawley Troxell Ennis & Hawley LLP in the representation of Ms. Luke and her firm on appeal.
Tristan Coomes and Sean Coomes v. Edmonds School Dist. No. 15, et al., Ninth Circuit Court of Appeals Cause No. 13-35747 (03/2016)
Edmonds School District ("the District") employees tried to silence Tristan Coomes' concerns about violations of law regarding the treatment of special needs students, leading to her constructive discharge.

Coomes filed the present suit claiming inter alia that the District's actions violated her First Amendment rights and Washington's prohibition against wrongful discharge in violation of public policy.

The District successfully removed the case to federal court. It moved for summary judgment, arguing that no material fact issues existed and the case could be decided as a matter of law. The district court granted the District's motion.

At the Ninth Circuit Court of Appeals, summary judgment of Coomes' wrongful discharge in violation of public policy claim was reversed and remanded.

Talmadge/Fitzpatrick/Tribe was pleased to handle the appeal with the assistance of trial counsel Neal Philip and Robert Fulton.
Washington Trucking Associations, et al. v. Employment Security Dep't, et al., Court of Appeals Cause No. 47681-9-II (02/2016)
The Employment Security Department ("ESD"), motivated by the political desire to restructure Washington's trucking industry, targeted that industry for audits whose outcome was foreordained. The auditors' job performance standards required a quota of taxes to be imposed each month and the auditors were directed to find that trucking independent contractors, known as owner/operators because they own the tractor and trailer purchased, often for hundreds of thousands of dollars and leased to trucking companies, were employees 98% to 100% of the time. ESD officials also taxed equipment of owner/operators knowing that was illegal.

The industry sued ESD officials for their misconduct under state law tort claims and violation of their federal constitutional rights under 42 U.S.C. § 1983. The Thurston County Superior Court dismissed the claims. Division II of the Court of Appeals reversed that decision stating that the industry could state claims against the ESD officials for their egregious violation of the industry's constitutional rights.

Talmadge/Fitzpatrick/Tribe joined Ogden Murphy Wallace in representing the industry at trial and on appeal.
Tupas v. Department of Ecology, Court of Appeals Cause No. 72259-0-I (12/2015)
Cymas Tupas was employed by the Department of Ecology where she alleged she experienced national origin and handicap discrimination arising out of the stress associated with that discrimination. Tupas successfully sued the Department and recovered a jury verdict in her favor for DOE's failure to accommodate that handicap. Under Washington's Law Against Discrimination, RCW 49.60, Tupas was entitled to recover her attorney fees. The trial court awarded her some fees, but restricted the award based on its perception of the scope of Tupas' success in the litigation; the court similarly restricted Tupas' recoverable litigation costs.

The Court of Appeals reversed the trial court's fee decision in an unpublished opinion ruling that its findings and conclusions on fees were insufficient to permit meaningful review, and remanding the case to the trial court to revisit its limitations on Tupas' fee recovery and its failure to properly consider a multiplier, a factor paying the successful attorney for the contingent risk of taking the case and not being paid for several years. The court also reversed the trial court's costs decision.

Talmadge/Fitzpatrick/Tribe was pleased to assist the Law Offices of Judith A. Lonnquist on appeal.
Bright v. Frank Russell Investments, Court of Appeals Cause No. 72663-3-I (11/2015)
Cindi Bright worked in the Human Resources Department of Frank Russell Investments. She was investigated by Frank Russell for alleged ethical violations. Bright claimed the investigation was harsher on her than as to her colleagues due to racial discrimination. She sued Frank Russell under Washington's Law Against Discrimination for racial discrimination and retaliation. She later amended her complaint to assert a failure to accommodate a disability claim arising out of that discriminatory investigation.

Bright prevailed before a jury on the failure to accommodate and the trial court awarded her reasonable attorney fees. Frank Russell appealed the fee award. The Law Offices of Judith Lonnquist retained Talmadge/Fitzpatrick/Tribe to argue the appeal.

In a published opinion, the Court of Appeals affirmed the fee award, concluding that the trial court did not abuse its discretion in declining to reduce the award for fees incurred on unsuccessful theories, and upholding the trial court's view that Bright's theories arose out of a common core of facts.
Albertson v. State, Court of Appeals Cause No. 45748-2-II (11/2015)
12-day old ARB presented at Harrison Medical Center in Bremerton on November 18, 2008 with a spiral fracture of his left arm, a condition his treating doctors believed was caused by twisting, pulling, or jerking-child abuse.

After an initial hospital hold, CPS was called in to investigate. CPS negotiated a voluntary safety plan for the child with his biological parents, but it never followed up on it, or performed a proper and complete investigation. While the investigation was open, the child was returned to the biological parents. On December 23, the child again returned to the hospital with massive and catastrophic abuse-related injuries.

ARB's adoptive parents sued CPS for a negligent investigation. The trial court instructed the jury on superseding cause, even though the injuries to the child were foreseeable. The jury concluded CPS was negligent, but the negligence was not the proximate cause of ARB's injuries.

On appeal, the Court of Appeals reversed and ordered a new trial because a superseding cause instruction was improper where the injuries to ARB at the hands of his biological father were foreseeable. The court also rejected CPS's contention that it owed ARB no duty at all with regard to its negligent investigation that led to ARB's harmful placement−his return to his biological parents.

Talmadge/Fitzpatrick/Tribe assisted Jeffrey R. Johnson of Scheer & Zchneder on appeal.
DBM Consulting Engineers, Inc. v. Joseph D. Sanders; Soos Creek Vista, Inc., Court of Appeals Cause No. 72053-8-I (11/2015)
This was the third appeal involving DBM Consulting Engineers, Inc.'s attempt to collect a judgment from Soos Creek Vista, Inc. (SCV). In 2005, DBM attempted to garnish promissory notes to satisfy its judgment against SCV. When DBM did so, it discovered that, in June 2005, the promissory notes were transferred from SCV to its owner and officer, Joseph Sanders. In October 2005, DBM initiated supplemental proceedings against SCV to levy execution on the transferred promissory notes alleging the transfers were preferential payments to an insider in violation of the Uniform Fraudulent Transfer Act, chapter 19.40 RCW (UFTA). However, DBM did not make Sanders a party in his personal capacity. In the first appeal, DBM attempted to collect on a lien bond Sanders had obtained, but DBM failed to properly execute on the bond. In 2007, DBM tried to pursue Sanders, but still had not made him a party. In the second appeal, the Court of Appeals voided an order against Sanders under the UFTA, finding that an alleged transferee is a necessary party to supplemental proceedings. After remand, however, DBM failed to make Sanders a party for three more years. In defense of the late joinder, Soos Creek argued that the trial court lacked the authority to grant relief under the UFTA, because the claim was time barred by DBM's failure to join Sanders. The trial court nevertheless ordered Sanders to return promissory notes and cash transferred by SCW in order to make those assets available in supplemental proceedings initiated by DBM.

Talmadge/Fitzpatrick/Tribe represented Sanders and SCV in the third appeal from the trial court's order granting summary judgment. The Court of Appeals held that Sanders, as a necessary party in an UFTA fraudulent transfer action, should have been joined within a year, and because he was not, the trial court's order was reversed, the case was ordered dismissed, and Sanders and Soos Creek were awarded attorney fees.
Segura v. Cabrera, Supreme Court Cause No. 90088-4 (10/2015)
The Seguras were ordered by the City of Pasco to vacate their basement apartment when the City deemed it uninhabitable. The Seguras then sought compensation for relocation expenses and other damages under RCW 59.18.085(3) from their landlords, the Cabreras. The Seguras recovered damages from the Cabreras, but the trial court declined to emotional distress damages. The Court of Appeals affirmed that decision, even though the Cabreras did not submit briefs. The Seguras petitioned the Supreme Court for review, which it granted.

When the Cabreras did not respond to the petition for review or submit supplemental briefing in the Supreme Court, that Court asked for amicus briefing from the Rental Housing Association of Washington. RHA retained Talmadge/Fitzpatrick/Tribe.

The Supreme Court concluded, that by its terms RCW 59.18.085(3) did not contemplate the recovery of emotional distress damages. Given the nature of the statute and its focus on relocation assistance, "actual damages" referenced in the statute did not include emotional distress damages.
Acosta v. PARC Enchanted Parks, LLC, Court of Appeals Cause No. 72146-1-I (09/2015)
Alberta Acosta was allegedly injured on a water slide at the Wild Waves water park in 2010. Acosta's attorney waited until the last day before the expiration of the applicable three-year statute of limitations in 2013 before filing her lawsuit in the King County Superior Court. He had another 90 days thereafter to serve the lawsuit on PARC, a Florida company. He failed to properly serve PARC in Florida and tried to serve the wrong registered agent for the corporation in Tumwater. Acosta's attorney never perfected service on PARC within the 90-day timeframe. Ultimately, the trial court granted PARC's motion to dismiss Acosta's lawsuit because it was not filed and served within the three year limitation period. The trial court also denied a motion to vacate the dismissal filed by Acosta's new attorney.

On appeal, the Court of Appeals affirmed the trial court's dismissal of the lawsuit and its refusal to set aside the dismissal. The lawsuit was not timely filed and served within the period of the statute of limitations.

Talmadge/Fitzpatrick/Tribe was pleased to assist PARC on appeal.
Taylor v. Intuitive Surgical, Inc., Court of Appeals Cause No. 45052-6-II (07/2015)
Despite repeated warnings that physicians using its robotic surgical system for prostate surgery should not use it on morbidly obese patients, particularly early in their learning curve on the systems use, Dr. Scott Bildsten decided to use Intuitive's Da Vinci Robotic Surgical System on Fred Taylor. The surgery did not go well and Bildsten discontinued its use mid-surgery. Four years later, Taylor died of unrelated causes.

Taylor's estate filed suit against Dr. Bildsten, Harrison Memorial Hospital, and Intuitive. The doctor and the hospital settled and, after a lengthy trial, a jury ruled in Intuitive's favor on product liability duty to warn claims.

On appeal, the Court of Appeals affirmed the judgment on the jury's verdict, concluding that the jury was properly instructed on Intuitive's duty to warn Dr. Bildsten and that it had no duty to warn Harrison as a "learned intermediary."

Talmadge/Fitzpatrick/Tribe assisted Jeffrey R. Johnson of Scheer Zehnder on appeal.
Trinity Universal Insurance Company of Kansas v. The Ohio Casualty Insurance Company, Court of Appeals Cause No. 67832-9-I (06/2015)
Two insurers had a dispute over which was to pay a claim brought against their insured. Trinity paid the claim against the insured and the associated defense expenses. Claiming it had an assignment from its insured, Trinity filed suit in its own name against Ohio and obtained a default judgment that included recoveries under the CPA and IFCA, statutes that usually benefit only insureds. In fact, Trinity did not possess an assignment from its insured. Rather, late in the case, Trinity finally submitted its policy language to the Court of Appeals that revealed traditional subrogation language allowing Trinity to recover only those moneys it had paid on its insured's behalf pursuant to the policy.

Ohio sought to set aside the default judgment that included awards of treble damages and attorney fees. The trial court denied the motion to set aside the default judgment.

Talmadge/Fitzpatrick was retained to assist Ohio on appeal. The Court of Appeals affirmed part of the default judgment, but ruled that Trinity had no basis to assert CPA or IFCA claims or to receive an award of attorney fees. The Court vacated the awards of treble damages and attorney fees.

Trinity also filed a petition seeking Supreme Court review. The Court denied review.

On remand, Trinity argued that the trial court should modify its former ruling on judgment and allow interest at the higher contractual rate of interest of 12%. The trial court refused to do so, and Trinity appealed. The Court of Appeals affirmed in an unpublished opinion.

As with the first appeal, Talmadge/Fitzpatrick/Tribe assisted Ohio and Albert Donahue of the Wilson Cochran firm on appeal.
Sudar v. Dep't of Fish and Wildlife Comm'n and Coastal Conservation Assoc., Court of Appeals Cause No. 45378-9-II (02/2015)
The Fish and Wildlife Commission adopted a policy statement regarding salmon fishing on the Lower Columbia River. Aggrieved by the policy's intent to limit gillnetting in the future, certain gillnetters challenged the policy, seeking judicial review of it under the Administrative Procedures Act ("APA"). The Coastal Conservation Association intervened to uphold the policy.

The trial court held that the policy was not a rule subject to judicial review under the APA. In an unpublished opinion, the Court of Appeals affirmed the trial court's decision, noting the APA's strict definition of rule, and the APA's encouragement to agencies to adopt policy statements to better inform the public. The Commission's policy contemplated future rulemaking before it had legally operative effect. Once those rules were adopted, they would be subject to judicial review.

Talmadge/Fitzpatrick/Tribe was pleased to represent CCA at trial and on appeal.
Binschus v. State of Washington, Dep't of Corrections, Court of Appeals Cause No. 71752-9-I (02/2015)
After his incarceration in the Skagit and Okanogan County Jails, Isaac Zamora went on a murderous rampage killing six and wounding four others. Zamora was a ticking time bomb. He had a long history of mental health problems known to County law enforcement officials in Skagit County. While in the Skagit County Jail, Zamora showed signs of a seriously deteriorating mental condition, but the Jail officials never properly evaluated nor treated Zamora's mental health symptoms. Zamora was transferred to the Okanogan County Jail and its officials also failed to properly evaluate or treat his condition, although they knew or should have known about his deteriorating mental health.

When Zamora's victims sued both Counties, the trial court dismissed the victims' actions against them on the belief that the Counties did not owe the Zamora victims a duty to prevent his mental health condition from deteriorating, a condition that ultimately exploded into his murderous rampage. On appeal, in a published decision, the Court of Appeals reversed the dismissal as to Skagit County finding it owed a duty of care to Zamora's victims. Talmadge/Fitzpatrick/Tribe was pleased to have assisted the victims and their trial counsel on appeal.