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Looking Down the Road In Your Auto Case Plaintiff’s Forensic IME’s April 12, 2013 Washington State Association for Justice Washington State Convention Center Seattle __________________________________________________________________ Terry P. Abeyta ABEYTA NELSON P.C. 1102 West Yakima Avenue, Yakima, Washington 98902-3029 Phone: 509.575.1588 Fax: 509.457.8426 tabeyta@abeytanelson.com

Reasons You May Need Forensic IME:

Reasons You May Need Forensic IME

Reasons You May Need Forensic IME:

Reasons You May Need Forensic IME Fill holes left by treating physician

Reasons You May Need Forensic IME:

Reasons You May Need Forensic IME Fill holes left by treating physician Problems with your treating doctors

Reasons You May Need Forensic IME:

Reasons You May Need Forensic IME Fill holes left by treating physician Problems with your treating doctors Supplement lay testimony

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Do complete review of plaintiff’s medical history

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Do complete review of plaintiff’s medical history Deal with pre-existing condition defense

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Do complete review of plaintiff’s medical history Deal with pre-existing condition defense Prove medical causation

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Prove past treatment due to injuries at issue

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Prove past treatment due to injuries at issue Prove treatment necessary and reasonable in amount

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Prove past treatment due to injuries at issue Prove treatment necessary and reasonable Deal with defense of over treatment

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Prove future special damages

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Prove future special damages Prove permanent impairment

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Prove future special damages Prove permanent impairment Apply AMA Guides to the Evaluation of Permanent Impairment

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Prove effect of injuries on employment

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Prove effect of injuries on employment Work with vocational expert and life care planner

Things a Plaintiff’s Forensic IME Can Do For You:

Things a Plaintiff’s Forensic IME Can Do For You Prove effect of injuries on employment Work with vocational expert and life care planner Get a live doctor in front of jury

Get the Treating Doctors to Bless the IME :

Get the Treating Doctors to Bless the IME

Things You’ll Give Up:

Things You’ll Give Up Money

Things You’ll Give Up:

Things You’ll Give Up Money Innocence

Things You’ll Give Up:

Things You’ll Give Up Money Innocence Consider waiting until after Defense Medical Exam

Some Critical Do’s and Even More Important Don’ts :

Some Critical Do’s and Even More Important Don’ts Send all the medical records

Some Critical Do’s and Even More Important Don’ts :

Some Critical Do’s and Even More Important Don’ts Send all the medical records Send all the imaging

Some Critical Do’s and Even More Important Don’ts :

Some Critical Do’s and Even More Important Don’ts Send all the medical records Send all the imaging Get expert to list in report all medical records/imaging reviewed

Some Critical Do’s and Even More Important Don’ts :

Some Critical Do’s and Even More Important Don’ts If possible, get treating doctor referral to expert

Some Critical Do’s and Even More Important Don’ts :

Some Critical Do’s and Even More Important Don’ts If possible, get treating doctor referral to expert Find an expert with a practice

Some Critical Do’s and Even More Important Don’ts :

Some Critical Do’s and Even More Important Don’ts If possible, get treating doctor referral to expert Find an expert with a practice Pick an expert that’s good with a jury

Some Critical Do’s and Even More Important Don’ts :

Some Critical Do’s and Even More Important Don’ts If possible, get treating doctor referral to expert Find an expert with practice Pick an expert that’s good with a jury Don’t always use same expert

Finding Coverage & Assets William C. Smart Keller Rohrback L.L.P.:

Finding Coverage & Assets William C. Smart Keller Rohrback L.L.P.

Public Policy:

Public Policy Generally, exclusions are upheld through general contract principles. The intent of the parties.

Public Policy:

Public Policy Even clear and unambiguous policy language may not be enforced if it violates Washington public policy. Findlay v. United Pacific Ins. Co., 129 Wn.2d 368, 917 P.2d 116 (1996).

Public Policy :

Public Policy Two examples in Washington case law: Financial Responsibility Act. RCW 46.29. UIM Statute. RCW 48.22.030.

Mutual of Enumclaw v. Wiscomb, 97 Wn.2d 203, 943 P.2d 441 (1982):

Mutual of Enumclaw v. Wiscomb , 97 Wn.2d 203, 943 P.2d 441 (1982) Denial of coverage for family members Wiscomb – Husband in car injures wife on motorcycle. Family exclusion invalidated because of public policy embodied in FRA

Britton v. Safeco, 104 Wn.2d 518, 707 P.2d 125 (1985):

Britton v. Safeco , 104 Wn.2d 518, 707 P.2d 125 (1985) Voiding language which violates UIM statute Family exclusion did not focus on risk of who was driving. Rather, who was injured

Binders:

Binders RCW 48.18.230 – Valid for 90 days.

Binders:

Binders Never valid beyond issuance of policy 90 days or until policy issued

Binders:

Binders Typical case – What if policy different than what was bound. Foreman v. Holland Am. , 47 Wn. App. 596, 736 P.2s 698 (1987) Issuance of binder for “ all risk ” insurance presents question of fact as to what was ordered

Cancellation Notice Auto :

Cancellation Notice Auto Non-Payment – 20-Day Notice. RCW 48.18.291. 10 days for non-payment. Delivered or mailed to the insured at his/her last known address. Period starts with mailing. Tremmel v. Safeco Ins. Co. of America , 42 Wn. App. 684, 713 P.2d 155 (1986). Insurer not required to prove receipt of notice if procedures followed. Isaacson v. DeMartin Agency, Inc. , 77 Wn. App. 875, 893 P.2d 1123(1995).

Cancellation Notice:

Cancellation Notice B. Non-Renewal – Policy expires at end of term.

Issues Regarding Mailing:

Issues Regarding Mailing The Mail Box Rule

Bailey v. Allstate, 73 Wn.App. 442, 869 P.2d 110 (1994):

Bailey v. Allstate , 73 Wn.App. 442, 869 P.2d 110 (1994) RCW 48.18.291 applies to all auto policies Insurer – No duty to prove receipt Testimony there: Mailed to insured Last known address Query – Could anyone do this now?

Right to Get the Policy CR 26(b)(2):

Right to Get the Policy CR 26(b)(2) The existence and contents of any insurance agreement Any documents affecting coverage But, you only get this after you sue

Finding Coverage -- Read the Policy:

Finding Coverage -- Read the Policy A. It all starts with the Declarations page. Differences between policy forms and certified copy of policy.

Reading the Policy:

Reading the Policy B. Form Numbers and Endorsements. Make sure they correspond.

Reading the Policy:

Reading the Policy C. Endorsements may alter coverage provisions.

Reading the Policy:

Reading the Policy D. Who is an insured.

Reading the Policy:

Reading the Policy Name Insured Spouses Resident of Household Family Member Permissive User Person Responsible for Acts or Omissions of Owner

Reading the Policy :

Reading the Policy E. Residents. Typical language “ Resident of Same Household ” “ Residential ” and “ Household ” may be different terms.

Hawaiian Ins. & Guaranty Co. Ltd. v. Federated Am. Ins. Co., 13 Wn. App. 7, 354 P.2d 48 (1975) :

Hawaiian Ins. & Guaranty Co. Ltd. v. Federated Am. Ins. Co., 13 Wn. App. 7, 354 P.2d 48 (1975) Residency is the place where a person has a permanent intention to reside Maria left marriage after one year Temporary separation continues coverage as long as there is a possibility of return

Dautel v. United Pacific Ins. Companies, 48 Wn. App. 759, 740 P.2d 894 (1987) :

Dautel v. United Pacific Ins. Companies, 48 Wn. App. 759, 740 P.2d 894 (1987) Temporary guest intending to return home is not a resident 10-day deer hunt

Reading the Policy:

Reading the Policy Family members. Family members, especially younger members, may be restricted. Unmarried cohabitants are not family. Continental Cas. Co. v. Weaver , 48 Wn. App. 607, 739 P.2d 192 (1987).

Is a Fetus a Family Member? RCW 4.24.010:

Is a Fetus a Family Member? RCW 4.24.010 RCW 4.24.010 allows wrongful death action as “ minor child ” Moen v. Hanson , 85 Wn.2d 597, 537 P.2d 266 (1975) Jurisdictions disagree whether fetus is a “ family member ” “ Unborn child as insured or Injured Person within Meaning of insurance policy. 15 ALR 4 th 548 (1982).

Reading the Policy:

Reading the Policy Permissive user. Permission – Express vs. Implied. Implied Permission – Analyze circumstances.

Permissive User:

Permissive User Coverage only extends if vehicle use is within scope of express or implied permission. Grange Ins. Ass ’ n v. Ochoa, 39 Wn. App. 90, 691 P.2s 248 (1984). Third person granted permission Minor driving company vehicle Permission given by father Question of Fact for the Jury

Permissive User:

Permissive User The Minor Deviation Rule. Coverage where use “ within ” the “ spirit. ” Western Pac. Ins. Co. v. Farmers Ins. Exchange , 69 Wn.2d 11, 416 P.2d 468 (1966); Fish & Chips pick up No coverage where material deviation. New Hampshire Ins. Co. v. Myers , 69 Wn. App. 277, 848 P.2d 221 (1993). “ Test drive let to extended joy ride and overnight beach party. ”

Reading the Policy:

Reading the Policy G. Pedestrians Pedestrians (including bicyclists and sledders) qualify as PIP insureds when struck by a car. RCW 48.22.005, i.e., Mattson on Behalf of Mattson v. Stone , 32 Wn. App. 630, 648 P.2d 929 (1982). Person engaged in transaction essential to use of the vehicle. Rescuer is using the vehicle. Butzberger v. Foster , 151 Wn.2d 396, 89 P.3d 689 (2004).

Pedestrians – RCW 48-22-005(11) :

Pedestrians – RCW 48-22-005(11) RCW 48.22.005(11) – Pedestrian is a “ natural person not occupying a motor vehicle ”

Butzburger :

Butzburger Butzburger – Diver of car, who exited car to render assistance to driver of overturned truck was “ using ” both vehicles for purposes of UIM coverage Three-part test Causal relationship between injury and use of vehicle Close geographic proximity Person engaged in transaction essential to the use of the vehicle

Reading the Policy:

Reading the Policy Vehicles not named in the policy. Newly acquired vehicles. 30 -day notice requirement No notice required within 30-day period. Consumers United Ins. Co. v. Johnson , 26 Wn. App. 795, 614 P.2d 657 (1980). Temporary substitute automobiles. Trailers – Normally afforded coverage.

Operation, Maintenance & Use:

Operation, Maintenance & Use Look out for these situations: Pedestrians. Bicycles. Loading and Unloading. Shooting .

Other Coverage:

Other Coverage Own policy if riding in another car. Coverage on car, primary. Western Pac. Ins. Co. v. Farmers Ins. Exchange, 69 Wn. 2d 11, 46 P.2d 468 (1966)

Other Coverage:

Other Coverage Consider: Owner of car Driver of car Umbrella – owner Umbrella - driver

Other Coverage:

Other Coverage Stacking under PIP Washington courts have held no stacking (where language is contrary) despite payment of multiple premiums. Schab v. State Farm Mut. Auto. Ins. Co. , 41 Wn. App. 418, 704 P.2d 621 (1985).

Other Coverage:

Other Coverage But, coverage under multiple policies can occur if person with his own coverage (secondary) is riding in car with primary PIP coverage. Miller ’ s Casualty Ins. Co. of Texas v. Briggs, 100 Wn.2d 9, 665 P.2d 887 (1983)

Other Coverage:

Other Coverage Amended in 1994 to broaden reach of the coverage Possibility of stacking has been considered based on Cammel v. State Farm , 86 Wn.2d 264, 543 P.2d 634 (1975).

Other Coverage:

Other Coverage Coverage for UIM/Liability in same policy. 1. Policy language attempting to “ whittle away ” statutory coverage is not valid . Cammel v. State Farm Mut . Auto Ins. Co., 86 Wn . 2d 264, 543 P.2d 634 (1975)

Other Coverage:

Other Coverage Exclusion while covered under liability policy may or may not be valid. Invalid when claimant is named insured or family member. Tissell by and through Cayce v. Liberty Mut. Ins. Co. , 115 Wn.2d 107, 735 P.2d 126 (1990) For others, however, the exclusion is valid. Blackburn v. Safeco Ins. Co. , 115 Wn.2d 82, 794 P.2d 1259 (1990)

Requirement to Offer UIM Coverage – RCW 48.22.030(3):

Requirement to Offer UIM Coverage – RCW 48.22.030(3) Requirement to offer UIM in same amount as liability limits Does not apply to umbrella policy Motorcycle exclusion ok Written waiver is required. If no waiver, coverage exists But, employee can waiver for you

UIM – Phantom Vehicle:

UIM – Phantom Vehicle RCW 48.22.030 Phantom vehicle is “ one causing damage without physical contact ” 72 hour rule. Report to police “ Competent evidence ” other than insured ’ s testimony Corroborating evidence is question of law. Farmers Ins. Co. v. Frederickson , 81 Wn. App. 319, 814 P.2d 138 (1996).

Other Coverage:

Other Coverage Umbrella Policies. 1. Drop Down 2. Following form

Liability Coverage – Finding a Defense and Where to Look:

Liability Coverage – Finding a Defense and Where to Look Named Insured Policy follows car Resident of household Family member Permissive user

Liability Coverage – Finding Defense and Where to Look:

Liability Coverage – Finding Defense and Where to Look Covered Automobile Newly acquired vehicle Temporary substitute automobile Trailer

Liability Coverage – Finding Defense and Where to Look:

Liability Coverage – Finding Defense and Where to Look C. Corporate Fleet Vehicles

:

Benson v. Hall Examples Death and multiple injuries in boat accident Stay due to criminal charges Claimant may have UIM, other 1 st party rights DJ action to secure policies, establish coverage $2 million umbrella policy not previously disclosed Olympic Steamship fees

Benson Boat Policy:

Benson Boat Policy Underlying boat policy cancelled Umbrella policy of $2 million stated that if cancellation, then retained limit was zero Boat owner – insured $1 million – told company not to disclose policy to estate of passenger – increased to $2 million Underinsured boater ’ s coverage

Benson Boat Policy :

Benson Boat Policy Passengers were therefore insured Passive use Remember Butzberger Failure to disclose to insured Failure to produce pursuant to CR 26(b)(2)

Examples:

Examples Douglass v. Walker and City of Seattle Improperly parked vehicle

Douglass v. Walker and The City of Seattle:

Douglass v. Walker and The City of Seattle SMC 11.72.090 – No person shall park within 20 feet of the approach to a crosswalk

Multiple Threat Scenario:

Multiple Threat Scenario Suit against driver

PowerPoint Presentation:

Passing Car Parked Car Less than 20 Feet Stopped Cars

A Word About Bad Faith :

A Word About Bad Faith Low limits are your friend Limits demand Stipulated Judgment Bird v. Best Plumbing Group, LLC , 175 Wn.2d 756, 287 P.3d 551 (2012)

Thank you:

Thank you

HELPING THE DEPRESSED CLIENT ACHIEVE JUSTICE The “Particular Susceptibility” Instruction as a Sword and a Shield :

HELPING THE DEPRESSED CLIENT ACHIEVE JUSTICE The “ Particular Susceptibility ” Instruction as a Sword and a Shield Presenter: James Dixon

PowerPoint Presentation:

“ Plaintiff ’ s pre-existing depression causes her to believe she is in pain, even though the actual injury resolved long time ago. ”

Difference between “lighting-Up” an injury and “particular Susceptibility”:

“ Lighting-up ” addresses injury caused to a pre-existing condition “ Particular susceptibility ” addresses injury caused by or made worse by that pre-existing condition Difference between “ lighting-Up ” an injury and “ particular Susceptibility ”

The “Particular susceptibility” instruction (WPI 30.08.01):

If your verdict is for the plaintiff and if you find that: (1) before this occurrence the plaintiff had a [bodily] [mental] condition that was not causing pain or disability; and (2) the condition made the plaintiff more susceptible to injury than a person in normal health, then you should consider all the injuries and damages that were proximately caused by the occurrence, even though those injuries, due to the pre-existing condition, may have been greater than those that would have been incurred under the same circumstances by a person without that condition. The “ Particular susceptibility ” instruction (WPI 30.08.01)

A properly Modified instruction :

If your verdict is for the plaintiff and if you find that: (1) before this occurrence the plaintiff had a [bodily] [mental] condition experienced depression that was not causing neck pain or disability; and (2) the condition depression made the plaintiff more susceptible to injury than a person in normal health, then you should consider all the injuries and damages that were proximately caused by the occurrence, even though those injuries, due to the pre-existing condition depression, may have been greater than those that would have been incurred under the same circumstances by a person without that condition. A properly Modified instruction

Most often a shield, raised in response to the defense’s attack.:

Most often a shield, raised in response to the defense ’ s attack.

Sometimes a sword when your own treating doctor believes the injury should have resolved.:

Sometimes a sword when your own treating doctor believes the injury should have resolved.

Examples of Other types of Pre-existing mental conditions:

Post-traumatic stress disorder. See Xieng v. Peoples Bank “ Personality characteristics ” See McDonagh v. Dept. of Labor & Industries. Victims with a “ fragile psyche ” See Jensen v. Eveleth Taconite Examples of Other types of Pre-existing mental conditions

What if the Court won’t give the instruction?:

Proximate Cause Instruction The term “ proximate cause ” means a cause which in a direct sequence produces the injury complained of and without which such injury would not have happened. There may be more than one proximate cause of an injury WPI 15.01 (emphasis added) What if the Court won ’ t give the instruction?

Dealing With the Defenses of Today :

Dealing With the Defenses of Today Kristi McKennon Flynn Merriman McKennon Kennewick, Washington

“Sleep Happens” Using Obstructive Sleep Apnea to explain away falling asleep behind the wheel:

“Sleep Happens” Using Obstructive Sleep Apnea to explain away falling asleep behind the wheel Nathan Needham nneedham@willapabay.org Guy Glenn Law Firm 360-642-2332

How Dangerous is Drowsy Driving?:

Sleep deprivation increases the risk of a sleep-related crash; the less people sleep, the greater the risk . According to a study by the AAA Foundation for Traffic Safety, people who sleep six to seven hours a night are twice as likely to be involved in such a crash as those sleeping 8 hours or more, while people sleeping less than 5 hours increased their risk four to five times. A study by researchers in Australia showed that being awake for 18 hours produced an impairment equal to a blood alcohol concentration (BAC) of .05, and .10 after 24 hours; .08 is considered legally drunk . Other research indicates commercial drivers and people with undiagnosed sleep disorders such as sleep apnea and acute insomnia are also at greater risk for fall asleep crashes. How Dangerous is Drowsy Driving?

When did falling asleep become a defense?:

When did falling asleep become a defense?

When you have undiagnosed sleep apnea of course!:

When you have undiagnosed sleep apnea of course! Obstructive sleep apnea (OSA) is disorder of breathing during sleep. It may result in recurrent arousals from sleep with the consequence of poor sleep quality and often with decreased daytime alertness. Individuals who unknowingly suffer from it experience drowsiness that is identical to sleep deprivation from any other cause. Central sleep apnea, the airway is not blocked, but the brain fails to signal the muscles to breathe due to instability in the respiratory control center

How do you use it as a defense?:

How do you use it as a defense? Claim that client was unaware that they suffered from OSA Claim that client experienced sudden, unexpected sleep while driving—the 60-0 in 10.0 second effect— “ sudden unexpected loss of consciousness” Have a sleep study doctor diagnose it months later and opine that OSA was the cause of the sleep

Does someone you know have sleep apnea? … PROBABLY:

Does someone you know have sleep apnea? … PROBABLY

Prevalence of Obstructive Sleep Apnea (OSA):

Prevalence of Obstructive Sleep Apnea (OSA) Approximately 42 million American adults have Sleep Disordered Breathing 1 in 5 adults has mild OSA 1 in 15 has moderate to severe OSA 9 % of middle-aged women and 25% of middle-aged men suffer from OSA Prevalence similar to asthma (20 million) and diabetes (23.6 million) of US population 75 % of severe SDB cases remain undiagnosed

Wake your judge up for both MSJ motions and trial with the following::

Wake your judge up for both MSJ motions and trial with the following: Although no case in Washington exists on point, Courts across the country have recognized that sleep ordinarily does not occur without some notice to fall asleep while driving is usually the result of negligence in failing to heed the warning The purpose of this recognition is to prevent the adoption of sleep as a tailor-made defense to liability. The defendant is nevertheless not precluded from showing an exercise of due care when in fact sleep did come unheralded and unexpected, so as to make plaintiff's damage pure accident. However when the defendant makes any colorable attempt to prove the circumstances, the defendant creates an issue of fact regarding due care. The question then becomes one of credibility for a jury properly charged that sleep usually does not come on unannounced and unforetold . Use the Connecticut Jury Instruction as a guide in such a case

How do you defeat it at trial?:

How do you defeat it at trial? Get the Defendant’s medical records Get an expert on board to review just how serious the apnea is Don’t forget to request a copy of the Epworth Sleepiness Scale—demonstrates defendant’s subjective awareness of just how sleepy they feel Get the data from the CPAP machine if available (goes to credibility of the witness) Take the Defendant’s deposition and that of his/her spouse, boyfriend, girlfriend, roommate, etc.

Continuous Positive Airway Pressure (CPAP):

Continuous Positive Airway Pressure (CPAP)

Always remember: OSA—Just Another Restless Night:

Always remember: OSA—Just Another Restless Night

How the “Cooperation Clause” Can Effect 1st Party Coverage.:

How the “Cooperation Clause” Can Effect 1 st Party Coverage . Tara L. Eubanks The Budlong Law Firm 100 Second Ave. S. Suite 200 Edmonds, WA 98011

PowerPoint Presentation:

THE COOPERATION CLAUSE

PERSONAL INJURY PROTECTION:

PERSONAL INJURY PROTECTION Medical Authorizations Insurance Medical Examinations Request for Information

UNINSURED MOTORIST COVERAGE:

UNINSURED MOTORIST COVERAGE Insurance Medical Examinations Examinations Under Oath

PROPERTY DAMAGE CLAIMS:

PROPERTY DAMAGE CLAIMS Request for Documentation Examinations Under Oath

TYPES OF COOPERATION CLAUSES:

TYPES OF COOPERATION CLAUSES General Clause Enumerated Clause

PowerPoint Presentation:

Enumerated Clauses

LIMITATION ON THE REQUIREMENT TO COOPERATE:

LIMITATION ON THE REQUIREMENT TO COOPERATE Must be material to the circumstances that give rise to insurer’s liability to pay. Pilgrim v. State Farm, 89 Wash. App. 712 (1997)

FAILURE TO COOPERATE IS NOT AUTOMATIC BREACH OF CONTRACT!:

FAILURE TO COOPERATE IS NOT AUTOMATIC BREACH OF CONTRACT!

PowerPoint Presentation:

Insurer must show actual prejudice by insured’s breach.

PowerPoint Presentation:

Breach of cooperation clause is measured by the yardstick of substantial compliance.

INSURANCE MEDICAL EXAMINATIONS:

INSURANCE MEDICAL EXAMINATIONS Albee v. Farmers Ins. Co. , 92 Wn . App. 866 (1998)

REQUESTS FOR INFORMATION, RECORDED STATEMENTS AND PROOFS OF LOSS:

REQUESTS FOR INFORMATION, RECORDED STATEMENTS AND PROOFS OF LOSS Tran v. State Farm Fire & Casualty Co. , 136 Wn.2d 214 (1998)

EXAMINATIONS UNDER OATH:

EXAMINATIONS UNDER OATH Staples v. Allstate Ins. Co. , 295 P.3d 210 (2013)

PRACTICE POINTER:

PRACTICE POINTER “Cooperation is essential to the insurance relationship because the relationship involves a continuous exchange of information between insurer and insured interspersed with activities that affect the rights of both. The relationship can function ONLY if both sides cooperate.” Staples v. Allstate Inc. Co.

Danger! No Police Report:

Danger! No Police Report Tips, Hazards and Potholes to be Aware of When Handling the “No Police Report” Auto Collision Case Bradford J. Fulton Carter & Fulton, P.S. 3731 Colby Avenue Everett, WA 98201 (206) 682-8813 bjf@carterfultonlaw.com

PowerPoint Presentation:

It’s Not Always So Easy… The Police are Not Always called…

Why Weren’t the Police Called?:

Why Weren’t the Police Called? “I felt sorry for them!” “They admitted fault!” “They (initially) offered to pay for the damages…” “I didn’t have insurance” “I had a suspended license” “They didn’t have insurance” “Their license was suspended and they pleaded with me not to call the police” “I was young and stupid once too! “They were just about off of high-risk insurance from an earlier DUI” “There wasn’t much damage to the cars” “Everybody seemed to be OK at the time” “My rates will go up if I get another ticket!” “I can’t afford another ticket/accident!” “I will pay for everything if you don’t call the police!” “I though she might go out with me…”

And then things change after those involved leave the scene…:

And then things change after those involved leave the scene… “It’s My Word vs. Yours!” “Well, I’m Getting a Lawyer!”

PowerPoint Presentation:

“So, there was (1) No Police Report; (2) You did not think you were injured at the scene; (3) you did not get the names of witnesses; (4) you did not go to the emergency room or get treatment right away; and (5) there was not a whole lot of damage to the cars – yet you want me to help you…did I get that correct? Can You Help a Client Like This?

Considerations in Successfully Handling the “No Police Report” Case::

Considerations in Successfully H andling the “No Police Report” Case : Who is the Client? - Credible? - Believable? - What is their history? - Will the Jury like want to help them? - The Single Most Important Consideration of All! - Bad Client = Bad Case (typically)

PowerPoint Presentation:

2. Was there an Accident Report filled out? (If so, get it – form in materials) 3. How long ago was the crash – has too much time gone by? (“Win” the race to the witnesses if possible!) 4. Are there Independent Witnesses or is there any hope of locating “Surprise” Witnesses? (case examples in materials)

PowerPoint Presentation:

5. Get Declarations/Affidavits from all locatable witnesses! (The independent witness – the “Budweiser” of evidence in car crash cases!) 6. Were there any liability admissions made at the scene to others/plaintiff (written or verbal)? (written admissions at the scene?) 7. Do Not be Afraid to call the Defendant Driver or their Passengers – every once in awhile, you might get lucky!

PowerPoint Presentation:

8. Check the defendant’s Social Media/Facebook page (Were they like my kid’s friends – where they talk about EVERYTHING on their social media sites?) 9. Does the car damage “match” the prospective client’s story???? (“If the story don’t fit, you should quit!”) 10. Is your client “outnumbered” by the defendant and his/her passengers? Can this be overcome?

PowerPoint Presentation:

11. Has evidence disappeared or been lost due to the passage of time? (undocumented skid marks, property damage, injuries, etc.) 12. Was there immediate medical treatment? (Delays in treatment are difficult to overcome!) 13. Does the client have a “rich” past medical history or not? If so, can it be overcome? (Do a VERY thorough inquiry about this)

PowerPoint Presentation:

Has physical evidence at the scene/to the vehicles been lost due to delay? Can this be overcome? Can you overcome the “jury bias” that is always present in “No Police Report” cases? Is it a “my word against yours” type of case? (uncontrolled intersection, red light-green light, not in the crosswalk type of cases)

PowerPoint Presentation:

17. Is the client really looking for you to “clean up” their lack of insurance/ability to pay bills/get car paid for? 18. Is the date and location of the accident known or ascertainable? 19. Can the statute of limitations be properly calendared by you?

PowerPoint Presentation:

20. Will the jury like your client? Are they likeable and believable?

Sometimes it is best to…:

Sometimes it is best to… “Some of the Best Cases I ever had were the ones I never took!” -Some lawyer smarter than me!

“Pedestrians Ahead” – PIP Applicability by: Morris H. Rosenberg:

“Pedestrians Ahead” – PIP Applicability by: Morris H. Rosenberg

PowerPoint Presentation:

http://www.youtube.com/watch?v=Q5O0NctOvUA (Construction guy) www.youtube.com/watch?v=0GjwEWUOyEg (pedestrian hit in crosswalk)

Pedestrian entitled to tortfeasor’s PIP coverage.:

Pedestrian entitled to tortfeasor’s PIP coverage. RCW 48.22.005 (treating with “Casualty Insurance” provides in relevant part: (5) "Insured" means: ( a) The named insured or a person who is a resident of the named insured's household and is either related to the named insured by blood, marriage, or adoption, or is the named insured's ward, foster child, or stepchild; or ( b) A person who sustains bodily injury caused by accident while: (i) Occupying or using the insured automobile with the permission of the named insured; or (ii) a pedestrian accidentally struck by the insured automobile. (Emphasis added.)

REMEMBER: PIP IS NO FAULT:

REMEMBER: PIP IS NO FAULT IGNORE THE SIGNS -- GET HIT BY A CAR – YOU STILL GET PIP!

Is the injured person a pedestrian? :

Is the injured person a pedestrian ? RCW 48.22.005 also contains the following definitions: ( 10) "Occupying" means in or upon or entering into or alighting from. ( 11) "Pedestrian" means a natural person not occupying a motor vehicle. . . . Putting the two definitions together, a pedestrian is a person not “in or upon or entering into or alighting from” a motor vehicle. This can easily become an issue if the injured party gets hit while getting out of or into a vehicle, a not uncommon occurrence.

Is a bicyclist a pedestrian?:

Is a bicyclist a pedestrian? There can be confusion as to bicyclists. When they are operating on the sidewalk bicyclists are governed by the rules related to pedestrians and when on the roadway by the rules related to vehicles. But I think they are pedestrians within the meaning of PIP.

Pre-Existing Condition and Prior Motor Vehicle Collisions:

Pre-Existing Condition and Prior Motor Vehicle Collisions Ben F. Barcus The Law Offices of Ben F. Barcus and Associates, PLLC

PowerPoint Presentation:

PLAINTIFF’S HARRIS V. DRAKE MOTION

PowerPoint Presentation:

MVA – April 26, 1996 (Plaintiff 30 years old)

INJURIES/TREATMENT:

INJURIES/TREATMENT PRE-EXISTING MEDICAL HISTORY : HOOKED ACROMION – BONY PROMINENCE Indication in Chiropractor chart notes that in February 1995, Mr. Harris had reported some isolated pain in his left shoulder and the word “MRI,” was noted next to the unrelated shoulder pain. No evidence that an MRI was ever actually ordered or conducted prior to the subject collision and no further indication of the isolated shoulder pain or the MRI in any additional records . COLLISION-RELATED INJURY : Persistent Anterior Impingement Syndrome in Left shoulder (and Degenerative Changes in the AC joint) SURGERY : October 30, 1997 - Left Shoulder Arthroscopic Subacromial Decompression

DR. W. BRANDT BEDE 1st Report Following PIP Examination November 26, 1996:

DR . W. BRANDT BEDE 1 st Report Following PIP Examination November 26, 1996 In summary, this gentleman has a post traumatic supraspinatus tendinitus and subdeltoid bursitis of the left shoulder related to the motor vehicular accident . Orthopaedic treatment is indicated including the involvement of a different anti-inflammatory agent, steroid injection but no surgical intervention at the present time. If further conservative therapy failed the only other alternative would be arthroscopy and Neer decompression .

DR. W. BRANDT BEDE 2nd Report - February 19, 1998 Following Records Review/Post Surgery (October 30, 1997) :

DR. W. BRANDT BEDE 2nd Report - February 19, 1998 Following Records Review/Post Surgery (October 30, 1997) At the time of the independent medical evaluation of November 26, 1996 this gentleman recalled at the time of the motor vehicular accident of April 26, 1996 he was holding onto the steering wheel with both hands but could not recall if he braced himself or struck anything within the vehicle. Although the forces across the shoulder joint would have been complex it is doubtful there was significant force to cause impingement of the rotator cuff between the humeral head and acromion . . . Considering the absence of mechanism of injury, normal MRI and bone scan findings and anatomic variance predisposing to impingement of the left shoulder it is my orthopaedic opinion that the impingement syndrome is unrelated to the motor vehicular accident of April 26, 1996

PRE-TRIAL:

PRE-TRIAL DEFENSE NEVER CONDUCTED A CR 35 EXAM “Trying to Ride The Coat Tails of the PIP Insurer” ER 904 OBJECTION TO DR. BEDE REPORTS Objection to Authentication : this report was not made for the purpose of treatment as required by ER 904(1). Objection to Admissibility : Relevance; Confusion of the Issues and Misleading the Jury; Unfairly Prejudicial; Lack of Foundation; Hearsay. (ER 402; 403; 801; 802) MOTIONS IN LIMINE . . . Plaintiff has great concerns about how Dr. Bede should be presented to the jury as Plaintiff is entitled to cross-examine him as to his motives for conducting the examination and records review (that he did for the first party insurer in an effort to deny PIP benefits) and the typical prohibition of any mention of insurance.

TRIAL:

TRIAL MOTION TO EXCLUDE “THE PIP EXAMINER”: DR. BEDE MOTION TO EXCLUDE IRRELEVANT RECORDS RE: PRIOR ASYMPTOMATIC CONDITION MOTION FOR DIRECTED VERDICT ON CAUSATION & SPECIAL DAMAGES MOTION FOR PREJUDGMENT INTEREST (POST-TRIAL)

SETTLEMENT OFFERS TO FINAL JUDGMENT:

SETTLEMENT OFFERS TO FINAL JUDGMENT Plaintiff : $ 100,000 Policy Limits (Oct 2000) Defense : $ 10,000 (Oct 2000) Plaintiff : $ 90,000 (Oct 2000) Defendant: $ 60,000 (During Trial) JUDGMENT: $ 141,982.78 Plaintiff: $ 100,000 (Post-Trial/Verdict – Feb 2002) Defendant : $ 45,000 (Feb/March 2002) Plaintiff : $ 100,000 (March 2002) FINAL JUDGMENT: $203,815.93

TRIAL COURT’S DECISION:

TRIAL COURT’S DECISION I’m not going to allow him to testify . . . I think it would engender bad faith claims by the insured against the insurance company, the defense couldn’t really rely on the use of the PIP doctor. Under these circumstances, it just so intrudes into the insurance company-insured’s relationship that it just could not be allowed .

Main Issue: Excluding the PIP Examiner:

Main Issue: Excluding the PIP Examiner Johnson v. McCay , 77 Wn . App. 603 (1995) (BUT Albee v. Farmers ) WHAT WE ARGUED : (1) P was contractually obligated to submit to PIP exam w/o CR 35 protections; (2) Work Product Protection Under CR 26(b)(4)&(5) for which there was NO Waiver; (3) Dr. Bede was Consulting Expert of Plaintiff hired by USAA on his behalf WORK PRODUCT PROTECTION : Protects Report/Prevents Testimonial Use [Look to specific parties’ intent – Heidebrink ] CR 26(b)(4) – Protects material that is (1) Document or “Tangible Thing;” (2) “Prepared in Anticipation of Litigation”; (3) By or For Another Party/For that Party’s Representative. IF THEY ARE PROTECTED, seeking party must show (1) “Substantial Need” for them; & (2) “Undue Hardship” in obtaining equivalent by other means [ Harris : party; USAA/Insurer: Representative] CR 26(b)(5) – Limits discovery of experts who will not be called to testify at trial (“A Party may discover facts known or opinions held by an expert who is not expected to be called as a witness at trial only as provided in CR 35(b) or upon a showing of exceptional circumstances”) – Plaintiff is ALIGNED w/ Insurer

Division II Opinion:

Division II Opinion AFFIRMED EXCLUSION OF DR. BEDE (& Disagreed with Johnson v. McCay ) …. AFFIRMED EXCLUSION OF IRRELEVANT ASYMPTOMATIC PRE-EXISTING CONDITION AFFIRMED DIRECTED VERDICT ON CAUSATION AFFIRMED DENIAL OF CONTINUANCE Also AFFIRMED denial of prejudgment interest until after directed verdict entered

SUPREME COURT OPINION:

SUPREME COURT OPINION AFFIRMED EXCLUSION OF DR. BEDE AFFIRMED EXCLUSION OF IRRELEVANT ASYMPTOMATIC PRE-EXISTING CONDITION AFFIRMED DIRECTED VERDICT ON CAUSATION AFFIRMED DENIAL OF CONTINUANCE … “At some point a trial must proceed.”

Comparing the Opinions:

Comparing the Opinions END RESULT: Third Party Tortfeasor cannot call the PIP examiner where work-product protection is claimed [Can be claimed by Plaintiff/PIP Insurer] Supreme Court held that USAA/PIP Insurer properly claimed work-product protection in its own right.

EXCLUDING IRRELEVANT MEDICAL RECORDS/DIRECTED VERDICT:

EXCLUDING IRRELEVANT MEDICAL RECORDS/DIRECTED VERDICT ASYMPTOMATIC PRE-EXISTING CONDITION : When an accident lights up and makes active a pre-existing condition that was dormant and asymptomatic immediately prior to the accident, the pre-existing condition is not a proximate cause of the resulting damages. (In the Harris case, the asymptomatic period was noted to be at least six months) IRRELEVANT NOTATIONS & RECORDS RE: RESOLVED SYMPTOMS/INJURIES : Record MUST have a tendency to prove a fact of consequence to the action.

IN PRACTICE …:

IN PRACTICE … Harris will help prevent inter/intra-carrier collusion Will prohibit or limit arguments re: irrelevant symptoms/injuries

FUTURE APPLICATIONS:

FUTURE APPLICATIONS BE WARY: Argument re: Waiver Entire PIP file is Non-Discoverable Don’t Allow Defense to “Back-Door” the Opinions ! Equally Applies to UIM Insurers, BUT Insured Can Always Use Expert LABOR & INDUSTRIES – Should Equally Apply [Effective when Department Objects]

PowerPoint Presentation:

PLAINTIFF’S HYPOTHETICAL/SPECUATIVE MOTION

Excluding Hypothetical/Speculative Questioning and Testimony:

Excluding Hypothetical/Speculative Questioning and Testimony No Expert Opinion Can be Expressed on a Subject Without the Proof of Underlying Factual Data to Support the Opinion Baxter v. Safeway Stores , 13 Wn . App. 229, 534P.2d 585 (1975) Carpenter v. Bests Apparel, Inc ., 4 Wn . App. 439, 481 P.2d 924 (1971) Davidson v. Metropolitan Seattle, 43 Wn . App. 569, 719 P.2d 569 (1986) It is Improper to Allow Speculative Testimony or Questioning Irrig . & Dev. Co. v. Sherman , 106 Wash.2d 685, 724 P.2d 997 (1986) Allen v. Matoon , 8 Wn . App. 220, 504 P.2d 316 (1972) Supanchick v. Pfaff , 51 Wn . App. 861, 756 P.2d 146 (1988)

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PLAINTIFF’S “A” PROXIMATE CAUSE AND INDIVISIBLE INJURY

“A” Proximate Cause and Indivisible Injury:

“A” Proximate Cause and Indivisible Injury Cox v. Spangler , 141 Wn.2d 431, 5 P.2d 1265 (2000) Phelan v. Whalen , 28 Wn . App. 19, 621 P.2d 1304 (1980) WPI 30.18.01 If your verdict is for the Plaintiff and if you find that (1) before this occurrence the plaintiff had a bodily condition that was not causing pain or disability ; and (2) the condition made the plaintiff more susceptible to injury than a person in normal health, then you should consider all the injuries and damages that were proximately caused by the occurrence , even though those injuries , due to the pre-existing condition, may have been greater than those that would have been incurred under the same circumstances by a person without that condition. WPI 15.04 There may be more than one proximate cause of the same injury. If you find that the defendant was negligent and that such negligence was a proximate cause of injury or damage to the Plaintiff, it is not a defense that some other cause may also have been a proximate cause.

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PLAINTIFF’S DEFENSE EXPERT’S OPINIONS MOTION

Limitation of Defense Expert’s Opinion:

Limitation of Defense Expert’s Opinion Defense Medical Review – Not to be referred to as “Independent” or “Second Opinion Review” Testimony should be excluded if does not meet requirements of ER 702 and case law. Instructions to Defense Witnesses and Preclusion of Argument by Defense Counsel

Conclusion:

Conclusion Motions In Limine Do them as early as possible! Keep out the Prejudicial/Irrelevant Information Put your “Best Case” before the Jury

Bumps in the Road: Removal Now What?:

B umps in the Road: Removal Now What? Jeremy A. Johnston Messina Bulzomi Christensen 5316 Orchard Street West Tacoma, WA 98467 (253) 472-6000

The Power to Remove:

The Power to Remove Why is it done? Where does the authority to remove come from?

Remand: Can I Get Back?:

Remand: Can I Get Back? Is there subject matter jurisdiction? Is there a defect in removal?

Jury?:

Jury?

Discovery:

Discovery Rule 26(f) – Discovery Conference Rule 26(a)(1) – Initial Disclosures Rule 30 – Depositions Rule 33 – Interrogatories Rule 34 – Requests for Production WD Local Rule 16(f) – Completion of Discovery WD Local Rule 16(g) – Dispositive Motions

Experts:

Experts Rule 26(a)(2)

As the Trial Date Approaches:

As the Trial Date Approaches Rule 26(a)(3) WD Local Rule 16

PowerPoint Presentation:

Jeremy A. Johnston Messina Bulzomi Christensen 5316 Orchard Street West (253) 472-6000 jj@messinalaw.com

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Tough truck with a weak roof

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The roof on this SUV was pushed down and inward

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This truck had vulnerable outside-the-frame rail gas tanks

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The seat recliner bent. A second recliner would have doubled the seat’s strength

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A series of defective spot welds broke on this roof

CARS, ROADS AND HUMAN SAFETY: Three Lessons In Highway Safety Cases :

CARS, ROADS AND HUMAN SAFETY: Three Lessons In Highway Safety Cases Keith L. Kessler (Illustrations by Jay Flynn)

State and Municipalities::

State and Municipalities: #1. “Our roads are safe” #2. “We should be immune for our unsafe roads” #3. “It’s all the fault of stupid drivers”

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State Route 2: “…killer highway ”

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Lesson #1 Look Beyond the Defendant-Driver

State and Municipalities::

State and Municipalities: #1. “Our roads are safe” #2. “We should be immune for our unsafe roads” #3. “It’s all the fault of stupid drivers”

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Immunity

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Waiver of Sovereign Immunity

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“The King can do no wrong”

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RCW 4.92.090: The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.

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Latest effort to avoid liability for bad roads: Discretionary Immunity

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Cougar Business Owners Association v. State, 97 Wn.2d 466, 647 P.2d 481 (1982) - Governor exercised her statutory authority as the state’s top-level executive to declare an emergency, excluding the public from the Mount St. Helens area prior to and following the May 18, 1980 volcanic eruption --

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Discretionary immunity in declaring a state of emergency -- basic governmental policy decision for public safety --

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Instances of Discretionary Immunity are Extremely Rare

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1954 Ogden Zoning No Discretionary Immunity 1965 Evangelical Juvenile Correction Facility; Inadequate Supervision No Discretionary Immunity 1974 King Building Permit No Discretionary Immunity REJECTED

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1975 Campbell Utility’s Actions No Discretionary Immunity 1975 Mason Police Pursuit No Discretionary Immunity 1976 Haslund Building Permit No Discretionary Immunity 1976 Stewart Highway Design (Bridge) No Discretionary Immunity REJECTED

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1978 Eldredge Youth Camp: Negligent Supervision No Discretionary Immunity 1979 Rogers Zoning No Discretionary Immunity 1983 Bender Wrongful Arrest No Discretionary Immunity 1983 Algona Municipal Sewer Services No Discretionary Immunity REJECTED

PowerPoint Presentation:

1983 Chambers- Castanes 911 Dispatch No Discretionary Immunity 1983 Petersen State Mental Hospital: Negligent Discharge of Patient No Discretionary Immunity 1984 Miotke DOE Violation of its Regulations No Discretionary Immunity 1985 Radach Zoning No Discretionary Immunity REJECTED

PowerPoint Presentation:

1992 Taggart Negligent Parole Supervision No Discretionary Immunity 1992 Roy Law Enforcement: Failure to Enforce Domestic Violence Law No Discretionary Immunity 1995 Savage Parolee Supervision No Discretionary Immunity 2000 Jones Parolee Supervision No Discretionary Immunity REJECTED

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Priority Array

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1961/1963 waiver of sovereign immunity ( RCW 4.92.090) 1963 – Priority Programming Act (Chapter 47.05 RCW )

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Limited $ for fixing bad roads – prioritize

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“Legislature… did not grant the State immunity from liability for negligent design or maintenance of unfunded projects .” McCluskey v. Handorff -Sherman (1992)

Riley v. Burlington Northern (1980) :

Riley v. Burlington Northern (1980 ) Duty to provide reasonably safe roads exists notwithstanding the “problem of allocating limited resources.”

Bodin v. City of Stanwood, 130 Wn.2d 726, 927 P.2d 240 (1996) :

Bodin v. City of Stanwood, 130 Wn.2d 726, 927 P.2d 240 (1996)

PowerPoint Presentation:

“The duty of care owed to another does not change according to a party’s financial situation.” “[P] overty defense evidence…has no place in a negligence action.”

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AVELLANEDA V. STATE PRIORITY ARRAY CONFUSION

Avellaneda:

Avellaneda Plaintiff: State should have secured funds sooner for cable rail project.

Avellaneda Can’t second-guess State on budgeting matters.:

Avellaneda Can’t second-guess State on budgeting matters.

PowerPoint Presentation:

HIGHWAY DESIGN AND MAINTENANCE LAW – duty to provide a REASONABLY safe road

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Since 1940 – Berglund v. Spokane County : Duty to “keep public ways in a reasonably safe condition”.

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Berglund: Bridge unsafe for pedestrians – breach of duty to provide safe road.

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Owen v. Burlington Northern “overarching duty to provide reasonably safe roads for the people of this state to drive upon.”

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Owen v. Burlington Northern Collision

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The State of Washington’s priority array system does not immunize it from liability

The Off-Ramp to MAR:

The Off-Ramp to MAR Diana N. Ruff Allen Brecke Law Offices 3360 West Clearwater Avenue Kennewick, WA 99336 (509) 735-0546 diana@allenbrecke.com

Limits of MAR:

Limits of MAR $50k limits: Benton/Franklin Chelan Clark Douglas Grant King Kitsap Lewis Mason Pierce Skagit Snohomish Spokane Thurston Whatcom Yakima $35k limits: Adams Grays Harbor Klickitat Skamania Okanogan

Why MAR?:

Why MAR? Faster, cheaper, better for your client Generally higher awards than with jury trials with less expense and less drama More comfortable for clients, especially those who may not present well as a witness Clients still get access to justice without the barriers of jury trial – cost, getting bumped, prejudices of juries, etc.

Getting Started :

Getting Started File the Statement of Arbitrability Check your local MAR rules; your county may have a special form to use We file the Statement of Arb with the Summons and Complaint to save time and notify the insurer right away that we are headed to Arb You may want to wait to file the Statement of Arb for strategic reasons – conducting more in-depth discovery or getting the insurer to take your case seriously, for instance

Getting Started, cont. :

Getting Started, cont. If there is no objection to the Statement of Arb , get started on discovery MAR 4.2 allows for RCW 4.28.360 Statements of Damages, CR 35 exams, Requests for Admission, depositions, and any other discovery an arbitrator orders Interrogatories and Requests for Production are limited in scope in Benton/Franklin, Mason, Pierce, Snohomish, and Thurston Counties

Discovery in Arbitration :

Discovery in Arbitration Typically any discovery not allowed by MAR 4.2 or Local MAR rules needs to be ordered by the arbitrator Use common sense about discovery issues; you do not want to run to the arbitrator with every little discovery issue (they don’t get paid enough for that) but don’t let defense counsel play games Arbitrator can hear discovery motions, but not SJ motions, CR 15 motions and motions for involuntary dismissal

Picking an Arbitrator :

Picking an Arbitrator Somewhere around 90 days after service on the last defendant, the clerk should send out a list of potential arbitrators Ask around if you are unfamiliar with the potential arbitrators so you can make a good decision about who to strike/circle If you have a list of all bad names, it might be time to talk to your client about settlement

The Basics of PHSOP’s (MAR 5.2) :

The Basics of PHSOP’s (MAR 5.2) Materials are due to arbitrator 14 days prior Use your demand to help you write your PHSOP so you are not re-inventing the wheel Everyone’s formatting style is different but every arbitrator appreciates the following: Use clear headers, tabs and bullet points to highlight medical bills/DOS, important diagnoses, etc. Use pictures/diagrams. Include concise narratives of the facts of the accident, liability argument, medical summary, loss of enjoyment of life, lost wages, etc.

What else goes to the arbitrator? :

What else goes to the arbitrator? Accident report, photos, repair estimates Medical records/bills Doctor’s declarations If you have a treating M.D. or D.O., get him/her to comment on all care If you have a D.C., can comment on chiro , PT, massage, and depending on arbitrator, ER visits Send out declarations very early! Doctors take forever with these, and if they refuse to sign, you have time to have a records review done

What else goes to the arbitrator?:

What else goes to the arbitrator? Include copies of depositions, even if your client will be testifying Helps arbitrator get more background on your client/case ahead of time Have any fact or damages witnesses who cannot attend in person or by phone submit declarations Cost Bill – submit it with your materials and point it out to arbitrator to save time. S/he can rule on your cost bill at the same time s/he issues damages award

Preparing Your Client:

Preparing Your Client Talk to them about the realities of the hearing; no detail is too obvious for your client Tell them what is expected of them (giving testimony, good demeanor, clean clothes, etc.), and what you will be doing Go over direct exam and what they can expect in cross exam Give them homework: reading deposition, PHSOP, review medical records, direct exam questions

The Hearing:

The Hearing Can do an opening or waive; depends on your arbitrator and your preference Direct Exam / Cross Exam of client and witnesses Defendant’s case, if any Closing Eggshell plaintiff argument Palmer v. Jensen (no contradictory medical evidence) “Damned if you do, damned if you don’t” argument Have helpful medical records tabbed and highlighted for your quick reference and that of arbitrator

Arbitration Award Statement :

Arbitration Award Statement Politely follow up with arbitrator if you have not gotten award within 14 days (MAR 6.2) Verify what day the proof of service of the award was filed so you know when 20 day appeal period runs Have client sign and return award statement as documentation that they do not want to appeal so you have written documentation for your file

Trial de Novo :

Trial de Novo Appealing party must improve position at trial or owes attorney fees and costs incurred after request for trial de novo (MAR 7.3) Must follow MAR rules on appeal to the letter – Nevers v. Fireside , 133 WN.2d 804 (1997) If no appeal filed, you can enter judgment on the award and costs (MAR 6.3 and CR 54)

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