Seattle Personal Injury Attorney

Archive for the ‘Washington Personal Injury Law’ Category

Our law firm was not involved in the personal injury lawsuit discussed in this article.

Typically a few times in any given year the Washington Court of Appeals upholds the dismissal of a handful of personal injury cases because of a failure to bring the case prior to the expiration of the statute of limitations.

The fact pattern is very familiar. The personal injury plaintiff’s attorney has the defendant served just before the running of the statute of limitations. The plaintiff’s attorney realizes only after the statute has run that there is an issue with service. It is too late to do anything to prefect service, so the plaintiff attorney argues in the trial court and on appeal that service was really good and/or or the defendant somehow waived the issue. The personal injury plaintiff usually loses in both forums.

Recently this scenario played out again in the Washington Court of Appeals.[1]  The plaintiffs (through their attorney, presumably) filed a personal injury lawsuit exactly one week before the statute of limitations was to run. This tolled the statute for 90 days per statute.

Then about sixty days later the summons and complaint was served. The plaintiff amended the original complaint and served an amended summons and complaint.

The problem is that both sets of documents were served not where the defendant lived, but where the defendant’s brother lived. The defendant did not at the time of attempted service and had never lived in the brother’s home. It is quite clear under Washington law that this is not proper service.

By the time this was discovered by the plaintiffs it was too late to serve the summons and complaint.

This patter is not uncommon, judging by how many statute of limitations cases are appealed by personal injury plaintiffs, usually unsuccessfully. The details vary, but usually involve waiting to the last minute to file and serve the summons and complaint. The obvious risk is just what happened in this case and others like it – by the time the personal injury plaintiff attorney realizes there is a problem with service the statute has run and the case is lost, no matter how meritorious the case may have been.

This type of procrastination will often raise legal malpractice and ethics issues.

Our firm was not involved in the case described in this article.

A boat driver was injured when jet skiers cut off his boat and he had to make an abrupt maneuver to avoid hitting one of the jet skis. As a result a passenger in the boat fell on the driver. The driver suffered a broken collarbone and other injuries.

The boat driver sued the owner of the jet skis, and the son and grandson, who were each operating a jet ski owned by the grandfather.

The grandfather testified that he had allowed the son and grandson on occasion to use the jet skis in the past, including the morning of the day of the accident. However, he claimed that because he expected the river to be very bust with holiday traffic he specifically forbade any further use of the jet skis that day.  He claimed the son and grandson were operating the jet skis without his permission, and indeed against his expressly stated will, in the afternoon when the accident occurred.  

The court dismissed all claims against the grandfather. The Court of Appeals affirmed, noting that under prior Washington case law “parents are not responsible for torts of their children ‘solely on the ground of relationship.’” [1]

The boat driver argued for liability based in part on two legal doctrines. One is the rebuttable presumption that the operator of a motor vehicle is acting as the agent of the owner.  The boat driver also argued for the extension of the family car doctrine to jet skis. The Court of Appeals declined to extend either legal presumption to jet skis, noting that these rules developed because motor vehicles are both hazardous and ubiquitous.

The Court also noted that even if either doctrine applied, the testimony rebutted the presumptions. There was no evidence to refute the grandfather’s testimony.  Further, the family car doctrine even if extended to jet skis would not apply because neither the son nor the grandson were members of the grandfather’s household.  Contrary to widely held misconception, the owner of the jet ski was not automatically liable.  This is a short article about one court opinion. It is not a substitute for legal advice. If you have questions about an injury claim you should contact an attorney.

Some people are inclined to blame the injured party for bringing their case to court, and tend to assume that they must just be greedy and stubborn in not settling out of court.

In Washington many personal injury claims are subject to mandatory arbitration before the parties can have a jury trial.[1] Either side may appeal, although there is the potential of the party who appealed paying the others side’s attorney fees. At trial the jury does not know the result of the arbitration, or which side appealed, or even that there was such a hearing. So, no valid assumptions can be made.

An injured person who can not settle out of court and must litigate sues the other driver or other responsible person, not their insurance company.

Some insurance companies routinely appeal the arbitration awards, even if their customer who is being sued does not wish to; even if their customer would rather accept the results of the arbitration.

This practice was spotlighted by two recent Washington Court of Appeals cases. These cases both confirm that insurance carriers can make the decision of whether to appeal for their customers they are defending in court.[2]

An appeal from mandatory arbitration is often, and probably more often than not, filed by the defense, not the injured plaintiff. And, since the defendant’s insurance company is paying for the defense, they are making those calls, even sometimes over the objection of their customers.

This is done to raise the costs and hassle factor of bringing injury claims, so as to deter people with even the most valid of claims from seeking full and fair compensation.

So, if anyone is greedy…..

A teenager who had been drinking assaulted with the butt of a shotgun someone who was attempting to take away his car keys. The shotgun was a gift from the minor’s parents. They allowed him to keep it in his truck.

The man suffered several facial fractures and incurred $40,000 in medical bills. He claimed permanent damage to his left eye and ongoing memory loss, sleep disorders and headaches. The minor eventually pleaded guilty to second degree assault and was sentenced to nine months’ confinement.

The minor’s parents were held not liable. The trial court granted summary judgment, a decision upheld by the Washington Court of Appeals.

The injured man sued, arguing negligent supervision of a child, negligent furnishing of a firearm, general negligence and for statutory liability under RCW 4.24.190. The parents offered $5,000 under RCW 4.24.190, a statute that makes parents liable for willful and malicious acts but limits that liability to $5,000.

In order to establish a claim of negligent supervision against parents for the acts of a minor child, the plaintiff must establish that (1) the child has a dangerous proclivity, (2) the parents know of the child’s dangerous proclivity, and (3) the parents fail to exercise reasonable care in controlling that proclivity. The minor had an insignificant disciplinary history. The injured man argued that all parents should know of the dangerous proclivity of all minors in possession of a gun. The Court rejected the broad assertion.

In Washington one who supplies property to another “whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm . .” may be liable for harm caused. The Court held that here “there was no evidence presented in this case from which a reasonable jury could find that in providing a shotgun, for hunting, to this safety-trained, licensed, apparently-law-abiding, historically responsible 17-year-old—a young man old enough to enlist in the armed forces—the [parents] knew or had reason to know that it was likely he would use it in a manner involving an unreasonable risk of physical harm.”

Many wrongly assume parents are “automatically” liable for the actions of minors. Depending on circumstances the parents of a minor may be fully liable, partially liable, or, very often, not liable at all.

If you have questions about the liability of a minor’s parents for your injuries you should consult with an attorney.

Our law firm was not involved in the personal injury case described in this article.

Recently there have been several personal injury cases dismissed for failure to properly bring the action within the statute of limitations and the dismissal upheld on appeal.

A case must be brought within the applicable statute if limitations period or is lost forever. A civil case can be initiated by either filing or service of a summons and complaint. Filing the case tolls the statute of limitations for 90 days. Valid service must accomplished before the expiration of the statute of limitations period (although this is tolled 90 days by filing). Read the rest of this entry »

Our personal injury law firm took no part in the case described in this post.

In a recent personal injury case the defense introduced a photo of the injury claimant depicting him in a smiling pose with two Playboy bunnies taken at the Playboy Mansion.[1] He testified he was “miserable” while on the trip and that he would have been smiling much more broadly in the photograph had he been feeling well. The photo was apparently downloaded by the defense from the injury claimant’s MySpace.com page.[2] He also took a trip to Maui during the time he was treating for injuries

In the end the jury awarded all the chiropractor bills presented but nothing for pain and suffering, known as general damages. The plaintiff treated with message therapy on the referral of his chiropractor but was not allowed to present the massage therapy bills to the jury and therefore nothing was awarded for the message therapy bills the plaintiff incurred. All these results were upheld on appeal.

The massage therapy bills were excluded by the trial judge because the injury claimant’s attorney failed to present evidence that the bills were reasonable and necessary.

Under Washington personal injury law, a plaintiff may recover only the reasonable value of medical services received, which may or may not be the same as the total of all bills paid.  The plaintiff must prove that medical costs were reasonable and, in doing so, cannot rely solely on medical records and bills. Medical records and bills are relevant to prove past medical expenses only if supported by additional evidence that the treatment and the bills were both necessary and reasonable. [3]

In this case the injury claimant’s attorney simply failed to produce any such evidence as to the massage therapy bills.  If the evidence had been properly presented the jury would have received the information and may have awarded bills for massage therapy.

Our firm was not involved in this case.

[1] Hunt v. Thayer, No. 63958-7-I(Unpublished opinion field October 25, 2010).

[2] See footnote 23 of the opinion.

[3] Patterson v. Horton, 84 Wn. App. 531, 543, 929 P.2d 1125 (1997).

Our personal injury law firm did not participate in this lawsuit.

In a recent unpublished opinion the Washington Court of Appeals reaffirmed the established rule that statutory offers under attorney fee shifting statutes must be made prior to mandatory arbitration hearings. Although the plaintiff prevailed before the trial judge on her personal injury claims, the award of attorney fees was overturned because her attorney made a statutory offer only after a mandatory arbitration hearing.[1]

In an action for damages where the amount pleaded by the prevailing party is $10,000 or less, the prevailing party is entitled to an award of reasonable attorney fees.[2] The plaintiff shall be deemed the prevailing party when the recovery, exclusive of costs, “is as much as or more than the amount offered in settlement by the plaintiff.”[3] Offers of settlement must be served on the adverse party at least ten days prior to “trial.”[4] If the case is appealed, the prevailing party on appeal shall be considered the prevailing party for the purpose of applying the fee shifting statute.[5]  The issue in this case was how to apply the above cited statutes in a case that begins with a mandatory arbitration.

The purposes of RCW 4.84.250–.290 are to encourage out-of-court settlements, penalize parties who unjustifiably bring or resist small claims, and enable parties to pursue meritorious small claims without seeing the award swallowed up by the expense of paying an attorney.[6]  Treating the arbitration proceeding as the “trial” furthers these purposes. It creates an incentive for both sides to settle before going to the considerable expense of a full arbitration hearing.

A mandatory arbitration proceeding under chapter 7.06 RCW “is treated as the original trial” when applying RCW 4.84.290.[7] The trial de novo is the appeal that makes RCW 4.84.290 applicable.[8]  It follows that the arbitration is the “trial” proceeding in which the plaintiff must invoke RCW 4.84.260 in order to be deemed a prevailing party. The plaintiff can do this only by making an offer of settlement in the manner prescribed by RCW 4.84.280—that is, at least 10 days before the arbitration that constitutes the “trial”.

In this case the plaintiff/appellant was injured when the defendant lost control while driving a taxi and hit a car driven by the plaintiff, resulting in personal injury. 

The superior court transferred the case to mandatory arbitration and an arbitration award was filed in defendant’s favor, the arbitrator having been unable to find proximate cause. The plaintiffs timely requested a trial de novo in superior court. After the arbitration hearing, the plaintiff made settlement offers pursuant to RCW 4.84.280. The offers were not accepted.

After a four day trial, the court ruled in favor of the plaintiff and also awarded attorney fees.

Because the plaintiff did not comply with the statutory requirement of serving their offers of settlement 10 days before “trial,” they did not successfully invoke the statutory scheme. They were not entitled to attorney fees for the “trial” before the arbitrator; they were not entitled to attorney fees for the appeal (i.e., the trial de novo) in superior court; and they were not entitled to attorney fees for their appeal in the court.

[1] Williams v. Tilaye, No. 63743-6-I (Filed October 4, 2010).

[2] RCW 4.84.250.

[3] RCW 4.84.260.

[4] RCW 4.84.280.

[5] RCW 4.84.290.

[6] Beckmann v. Spokane Transit Auth., 107 Wn.2d 785, 788, 733 P.2d 960 (1987).

[7] Singer v. Etherington, 57 Wn. App. 542, 547, 789 P.2d 108, 802 P.2d 133

(1990).

[8] Singer, 57 Wn. App. at 546.

 Our Seattle personal injury attorney did not participate in the lawsuit described.

The Washington Supreme Court in a recent personal injury case ruled on the doctrine of res ipsa loquitur.[1]  Res ipsa loquitur means “the thing speaks for itself”.“The doctrine of res ipsa loquitur spares the plaintiff the normal requirement of proving specific acts of negligence in cases where a plaintiff asserts that he or she suffered injury, the cause of which cannot be fully explained, and the injury is of a type that would not ordinarily result if the defendant were not negligent. In such cases the jury is permitted to infer negligence. The doctrine permits the inference of negligence on the basis that the evidence of the cause of the injury is practically accessible to the defendant but inaccessible to the injured person.”

The doctrines is “sparingly applied, in peculiar and exceptional cases, and only where the facts and the demands of justice make its application essential’”.

In the case before the Court a tenant had been injured when a dock on which she was walking gave way under her. The landowner had the dock destroyed shortly after the incident, so there is no evidence as to the dock’s condition at the time of the accident. Read the rest of this entry »

Our law firm was not involved in the personal injury lawsuit described in this article.

In a recent decision the Washington Court of Appeals considered an issue of service of a summons and complaint. [1] Proper service of the summons and complaint is a prerequisite to the court obtaining jurisdiction over a party, and a judgment entered without such jurisdiction is void. Actual receipt is not sufficient. [2] Read the rest of this entry »

Our law firm was not involved in the personal injury lawsuit

described in this article.

A woman who fell and was in injured appealed the trial court results. She unsuccessfully argued her appeal without the assistance of an attorney. Read the rest of this entry »

Our law firm was not involved in the personal injury lawsuit described in this article.

A woman injured in a motor vehicle accident served the Washington Secretary of State because she was unable to locate the other driver to effect personal service.  The trial court entered a default judgment.  The court awarded $12,000 in general damages, $9,163.15 for past medical damages, $1,890.72 for property damage, $28,600 for future medical damages, $23,346.13 for past lost wages and future earning capacity, and $1,244.91 for statutory costs, for a total of $76,244.91.

The other driver’s insurance company, Farmers Insurance Company, was notified of the default judgment and promptly located their insured and filed a motion to vacate the default judgment.

The court vacated the default judgment finding that the defendant acted diligently in pursuing the motion to vacate, that the failure to appear was reasonable, and that she established substantial evidence of a prima facie defense to damages.

The plaintiff appealed. Read the rest of this entry »

Our law firm did not participate in this case.

The plaintiff, an elderly woman who suffered from severe dementia, was living in a nursing home and a male patient sexually assaulted her. She died 13 months later without ever being able to describe the assault or its effect on her.

She sued the nursing home for negligence and violation of Washington’s Vulnerable Adult Statute. Read the rest of this entry »