Seattle Personal Injury Attorney

Archive for the ‘Washington Personal Injury Law’ Category

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 was not involved in the case described.

A woman who was eight months pregnant lost consciousness while driving to work in her truck. She rear ended one car and then hit a parked car. She was traveling at over 30 miles per hour when her truck crashed into the parked car. The car was demolished and its occupant was injured.

The woman asserted the affirmative defense of sudden illness. A driver who is suddenly stricken by an unforeseen loss of consciousness, and is unable to control the vehicle, is not negligent. [1] However, the testimony of the pregnant woman’s expert witnesses was excluded by the trial court because her attorney’s failed to properly disclose the witnesses in discovery and as required by the case schedule and pre-trial court orders.

Local court rules require a party to identify the witness’s name, address, and phone number, along with a brief description of relevant knowledge for lay witnesses or a brief description of qualifications and a summary of opinion for experts.  There is no dispute that the defendant did not include phone numbers for her experts, and did not provide a brief description of their relevant knowledge. Nor did she provide a summary of expert qualifications and opinion.

Her attorneys argued that the experts were disclosed in medical records. The trial court ruled that “the court rule does not contemplate that a party needs to comb through medical records to determine what witness is going to be called, it would simply be too expensive and too timely to expect a party to do that.” The trial court also noted that the medical records do not indicate that her experts would have been able to testify to a reasonable degree of medical certainty.

A trial court does not abuse its discretion not abuse its discretion by excluding a defense witness not disclosed under court rules and in the absence of good cause.[2] Therefore the exclusion of the experts from testifying was upheld by the Washington Court of Appeals.[3]

[2] Lancaster v. Perry, 127 Wn. App. 826, 830, 113 P.3d 1 (2005).

[3] Arero v. Bazley, No. 64123-9-I (UNPUBLISHED OPINION FILED: October 25, 2010).

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 »

Our law firm was not involved in this case.

The Washington Court of Appeals rendered a decision in an injury case in which the the process server served the initial pleadings on the babysitter, rather than the defendant who had allegedly caused injury to the plaintiff.[1]

Before the injured party’s attorney discovered the error the statute of limitations had run, barring the claim unless the courts found service on the babysitter adequate.

The babysitter, who was the niece of one of the defendants, was a 30-year-old married woman who resided with her husband and two step-children in Tacoma. The documents were served at the defendants’ home in Federal Way.

A personal injury claim must be commenced within three years. The filing of a complaint in and of itself is not sufficient to toll the statute of limitations. A defendant must be served. The ways in which a person may be served with a summons are set forth by statute. Generally, personal service is required but substitute service is permitted under certain circumstances.[2]

In order to effectuate substitute service, the plaintiff must (1) leave a copy of the summons at the defendant’s house, (2) with some person of suitable age and discretion, (3) then resident therein. The only element at issue was the third one.

‘Resident’ requires something more than [being] ‘present’ in the defendant’s usual abode.[3] And as noted by the Supreme Court in Salts v Estes, when the legislature required that service be on a person who is “then resident” in the defendant’s usual abode, it meant something more than fleeting occupancy. The usual rule is that service on employees and others who do not reside in the defendant’s home does not comport with due process.

The plaintiff relied on a case called Wichert.[4] The Wichert court held that service upon an adult child staying overnight at her parents’ home was sufficient service upon the defendant parents. But the Salts court distinguished Wichert, in part because the daughter accepting service in that case slept in the defendants’ home on occasion and in particular the night before she accepted service.

The Salts court noted that Wichert and similar cases “mark the outer boundaries of RCW 4.28.80(15)”.

The Court of Appeals upheld the dismissal of the case on the grounds that service on the babysitter was not valid service. Since the statute of limitations had run, the injury claimed is barred forever.

There are precautions and practices that might well have prevented this outcome. It is important to discuss any injury claim with an experienced injury attorney.

[1] Krolow v. Kdep, 63136-5-I(March 22, 2010). Unpublished opinion.

[2] RCW 4.28.080(15).

[3] Salts v. Estes, 133 Wn.2d 160, 167-68, 943 P.2d 275 (1997).

[4] Wichert v. Cardwell, 117 Wn.2d 148, 812 P.2d 858 (1991).

By Seattle Personal Injury Lawyer Scott Eller

Last month the Washington Supreme Court issued a decision in a case in which the Court considered an issue of judicial immunity.[1] A sheriff deputy escorted an inmate from a courtroom to the jail on the instructions of the judge.  She did not handcuff the inmate.  The inmate brook away and ran for the entrance.  He lowered his shoulder and charged into a person in the courthouse, injury him.  That person brought suit. Read the rest of this entry »

A recent Court of Appeals decision upheld the trial court’s ruling that attorney fees requested by an injury attorney were unreasonable.[1] Read the rest of this entry »