Washington Legal News
Another One Bites the Dust – U.S. Supreme Court Rules that ERISA Plans May Chase Funds Outside the Control of a Beneficiary - by David Brown
On November 12, the United States State Supreme Court denied cert in ACS Recovery Services, Inc., v. Griffin 723 F.3d 518 (5th Cir. 2013), preserving a 5th Circuit Court ruling which closed the door on another means of avoiding reimbursement of ERISA plans when a catastrophically injured beneficiary is not made whole.
To gain more background information on ACS Recovery Services v Griffin, go to this U.S. 5th Circuit Court page.
Prior to the Griffin decision, some attorneys were attempting to shield their personal injury clients’ recoveries from ERISA plans by transferring these funds to a special needs or other type of trust outside the “possession and control” of the plaintiff. The position of these plaintiffs’ attorneys was that an ERISA plan could not seek “appropriate equitable relief” if the plaintiff and beneficiary of the ERISA plan did not have possession and control over the settlements funds. This view was based primarily on a 5th Circuit case Bombardier Aerospace Emp. Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F.3d 348 (5th Cir. 2003).
Unfortunately, Griffin partially overruled Bombardier, holding that because the ERISA plan held a pre-existing lien by agreement, the subsequent transfer of funds to the special needs trust was essentially tainted and did not destroy the ability of the ERISA plan to assert an equitable lien.
The take away is this - there was a thought that one way to defeat ERISA reimbursement is to simply disburse the money to the client, a trust, or a structure, and this would prevent the ERISA plan from asserting its lien because the money was no longer identifiable. Unfortunately, this won’t work and risks a judgment against your firm or the client for the lien asserted by the plan.
There is one glimmer of hope contained in the 5th Circuit opinion. The court held that under section 502(a)(3)(B) of ERISA, the ERISA plan could not chase settlement monies paid to another party for their personal claims arising out of an incident resulting in payments to a beneficiary. That is, if a spouse, dependant, or other individual has a derivative claim for loss of consortium or some other basis, this money cannot be reached by the plan.
Therefore, if you are structuring a recovery, it may benefit your client’s family to earmark as much of the recovery as possible as going towards loss of consortium claims and the like, as opposed to compensating the injured party, and thus put the money out of reach of an ERISA plan seeking reimbursement.
If you have questions regarding reimbursement and subrogation, I have a collection of other articles regarding these topics on my website at http://www.washingtoninjury.com/legal_news.
- David Brown
If you have been injured and need information about your rights and options, you can contact me by calling 1-800-925-1875 or by completing our contact form.
It used to be that Black Friday was the height of American consumerism - rabid shoppers rising at the break of day to engage in bargain hunting on a grand and aggressive scale, bent on scoring huge savings on Christmas gifts, and the retailers equally bent on providing ample opportunity for shoppers to spend themselves silly. The perfect storm of capitalism, wrapped in a shiny non-recyclable holiday bow and blessed by the Almighty Dollar. But now, even that bastion of the season’s tradition has been overturned by a new, equally heart-warming tradition, lovingly called Grey Thursday.
For the past few years, a large number of national retailers including Macy’s, Walmart, Sears, and K-Mart, will open their doors on Thanksgiving Day so that America’s shoppers can abandon the turkey, stuffing, and gravy to frantically spend their holiday dollars one day sooner. Forget about the national Thanksgiving holiday proclaimed by President Abraham Lincoln in 1863, in the midst of the Civil War. Forget about taking that day to spend with family and friends, to acknowledge and be thankful for the people and things in our lives. The Thanksgiving holiday seems destined for extinction, bowing to the evolutionary pressure of American consumerism.
Well, perhaps personal injury law firms should follow suit. Perhaps we should all bow to the public’s desire for constant access to goods and services, and for businesses’ desire to bring in constant income and outshine all competitors. Hmmm, I wonder what that would look like…
I know, how about this. We could keep our office open on Thanksgiving Day, so that anyone who just HAS to sue someone wouldn’t have to wait even a minute, much less a whole 24 hours. That way, we can crush our competitors who have been misguided enough to take a day off to express thankfulness for all that they have, and all that this fine system has provided them.
And to meet the needs of the public to take advantage of discounted services, we can offer a 25% discount to prospective clients who have been injured by the sale-priced, foreign-made defective products that they buy on Thanksgiving from the cheapest source possible. That way the consumer wins twice - once by getting the cheapest deal on the cheapest products from the soul-less mega retailers who will sit down to Thanksgiving dinner as usual while their poorly paid employees are forced to miss out on theirs, and once by reaping a financial settlement when the shoddy products blow up in their faces. Double bonus… a consumer’s dream.
While my tone is obviously meant to be snarky and sarcastic, I truly find this new trend disturbing. For many years I worked in the retail and restaurant industries, where I knew that I would often have to work on weekends and evenings. But at least I had my major holidays to look forward to, when even the retail industry allowed their workers a paid vacation. You know, the Big 3 – Thanksgiving, Christmas, and Easter. Now, I am forced to wonder if the other two holidays are nearing extinction as well.
My hope is that all shoppers just stay home on Thanksgiving Day, cook some poultry, invite the whole family over, and celebrate our time together. I can’t think of a better way to give the big retailers a bigger message – our families and our traditions are more important than your bottom line.
Disclaimer – I was kidding about the 25% discount. That’s just crazy talk!
- Ingrid Taylor, Brett Murphy paralegal and resident snark
P.S. if you are injured in an accident with an at-fault party who should have stayed home rather than driving, contact us by calling 1-800-925-1875, or by completing our contact form. You won't find a better law firm to help you - and that's no talking turkey!
I recently read plaintiff personal injury lawyer Stephan Futeral’s review of Stanford Law School Professor Nora Freeman Engstrom’s recent study of what she calls “settlement mills.”
This much-needed analysis of the current state of personal injury law brings up these questions:
- How can a potential client identify what a settlement mill firm looks like?
- How can someone avoid having their personal injury claim settled for less than its full value by an unethical attorney?
In her in-depth analysis, Professor Engstrom defines a settlement mill as “high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial.” She defines the characteristics of a settlement mill, completes analysis of several sample firms that meet those criteria, assesses the relationship between settlement mills and insurance companies, and concludes that the new settlement mill system can be advantageous for personal injury clients with relatively small cases but can be disadvantageous for clients with more serious injuries and larger claims.
Personal injury attorney Stephan Futeral looked closely at the Engstrom study and described his personal experience with a settlement mill, when he interviewed for a position with a large personal injury firm in Georgia. He was told that he would be expected to handle an extraordinarily high number of cases, but that he would rarely meet with clients and wouldn’t personally manage claims. He chose not to take the position because he knew he could never effectively manage such a high volume of cases, and he wasn’t willing to give his clients substandard legal services merely to increase company profits. In short, he was an ethical lawyer.
As personal injury attorneys, we all know these mills exist, places where clients are shuttled to inadequate settlements of serious injury claims, where “lawyers” maximize the fees they earn rather than maximizing the client’s recovery. Settlement mill lawyers maximize their per hour fees by settling valid claims for cents on the dollar without investing any legal effort. Ethical lawyers invest the legal time and resources it takes to maximize the injured party’s claim value.
The question then is: How do we warn injured potential clients about these “settlement mills” and give them a way to avoid such mills?
In her article, Professor Engstrom lists 10 characteristics of settlement mills, four of which are key to identifying this type of firm:
- The firm takes on a high volume of personal injury cases;
- They acquire the vast majority of their clients via aggressive advertising;
- They engage in “entrepreneurial legal practices,”, here defined as handling claims using standardized processes delegated to less-expensive non-lawyers who do no fact checking and handle important aspects of the cases including settlement negotiations.
- They rarely take cases to trial and rarely refer cases to other firms for litigation.
I suggest that lawyers who take their ethical duties seriously resolve to advise potential clients to do a thorough investigation of any plaintiff personal injury lawyer before making a hiring decision. Since potential clients have no way of knowing whether a law firm handles a high volume of cases, how much they spend on advertising, what their practices for case management are, and what their track record of settlements vs. litigation is, potential clients should:
- Look at the lawyer’s track record at trial. Lawyers who do not disclose that information on their websites probably don’t have much to brag about. Website descriptions of trial results should be complete, not just a list without sufficient detail to allow the reader to understand the case result.
- Examine well known attorney ranking sites. There are several ranking sites that provide free information to the public, to help potential clients make informed choices. Settlement mill firms and attorneys will likely not have the top rankings and reputations on these sites. These ranking sites include: AVVO.com, where the best attorneys are given a rating of 10/10; Martindale-Hubbell AV ratings, “Super Lawyer” status from Super Lawyers Magazine, and admission into selective professional organizations such as the American College of Trial Lawyers.
- Actually interview several lawyers. Whether a client can develop trust and confidence in an attorney can best be determined by face to face contact. “Settlement mill” lawyers rarely take the time to participate in such an initial interview.
- Get a referral from someone. One of the most reliable ways to find an ethical personal injury attorney is to get a referral from someone who has had a good experience with their own injury claim.
Ethical lawyers can take a stand against “settlement mills” only by helping potential clients understand that such mills exist, and by showing them how to avoid these legal scam artists. In return, the legal profession can improve its reputation while significantly strengthening the quality of service offered to clients.
- Dean Brett
If you have been seriously injured in an accident and need information about your rights and options, contact the Brett Murphy personal injury attorneys today by calling 1-800-925-1875 or by completing our confidential contact form.
Recently, Slate.com posted an article on Kevin Trudeau’s most recent $37 million fine, and likely imprisonment for contempt of court when this notorious snake oil salesman doesn’t pay up. This article, titled “Kevin Trudeau: Quackery Promoter Jailed for Contempt,” struck a chord for me, because it highlights how the law, something that people often criticize as being predatory itself and designed to help the rich and powerful, is often the only tool that can be used to eradicate this kind of predatory greed.
As many of you probably know, Kevin Trudeau is the well-known television salesman and infomercial host who has been gracing late-night and mid-day TV screens for years. The products that he pitches include health aids, dietary supplements, treatments for baldness and addiction, memory-improvement courses, and real estate investment strategies. And through the course of this dubious yet lucrative career, he has been the defendant in several law suits, has been convicted of larceny and credit card fraud, and has had millions of dollars in fines levied against him for his sales and business practices. Most recently he was jailed for failure to pay a $37 million fine levied against him in 2010.
This current sanction comes after a string of legal actions by the Federal Trade Commission, The New York State Consumer Protection Board, the U.S. Securities and Exchange Commission, and other agencies which filed lawsuits and obtained huge fines against Trudeau and his various companies.
Since as a personal injury attorney I spend the bulk of my day protecting hurt people from being taken advantage of by corporations and insurance companies, it is gratifying to see a bad guy get his comeuppance, in this case in the form of significant jail time and the utter ruin of an empire built on fraud and deceit.
However, as a lawyer, particularly a lawyer practicing in a field (personal injury law) often criticized by the public, I was moved to write this piece because the article by author Phil Plait appeared not in a legal blog but Slate.com’s science column “Bad Astronomy”. The article ends with this statement:
“Our best weapons against nonsense are critical thinking and our loud voices. And sometimes, as it should, the law helps as well.”
This comment, in fact the entire piece brought to mind my response to those most vehement critics of the legal profession. The response is simply this - when all else fails, it is the law, and the lawyers and judges who administer it, who must fix these otherwise intractable ills of our society. In the case of Kevin Trudeau, who was allowed to defraud the public out of millions of dollars for years, it was the law that finally shut him down. His fraudulent practices, his outrageous medical claims that were reinforced by no actual science, his promises of perfect health and riches, had been going on for years and had been criticized by government agencies, watchdog organizations, medical professionals, and others, all of whom had no ability to force Trudeau to quit. It was the law that achieved this.
The law is the ultimate power against other social ills as well. Lawyers and lawsuits have been at the forefront in the successful efforts to bring an end to racial segregation, sexual harassment, and dangerous products. Legal changes have been the method to ensure safe workplaces. These are examples of social issues that reason, morality, intellectualism, science, public discourse, and the free market have failed to remedy.
As the “last house on the block,” the law is often the only solution to enact authentic and permanent social change, and to force shysters like Trudeau to end their unethical practices. The law is often the last place people have to turn to for relief from fraud, thievery, and corruption.
If you need advice about your rights and options after being injured in a car accident, contact the Brett Murphy personal injury attorneys today by calling 1-800-925-1875 or by completing our convenient contact form.
We recently wrote about Washington State’s new marijuana regulations, adopted by the Liquor Control Board, and we received a huge response from folks regarding the issue of marijuana intoxication. Here are some of the comments we received:
- How can a consumer know if they are too stoned to drive?
- How exactly do the new regulations define marijuana intoxication and impairment?
- If someone smokes marijuana and then gets pulled over by police, how is it determined if the driver is impaired?
- What is the legal penalty for a conviction for driving under the influence of marijuana?
For the Brett Murphy personal injury attorneys, these questions are crucial as we try to understand how the new regulations will affect our car accident cases. We regularly represent clients injured in accidents involving drunk drivers, and we wonder if there will be an increase in cases involving stoned drivers. We wonder if a plaintiff who was stoned at the time of the accident will be considered negligent, even when not at fault for the crash.
So we thought it was time to do some research regarding what marijuana intoxication means for drivers, and how law enforcement will be able to accurately identify and cite a driver who is under the influence.
At first glance, the new regulations seem reasonable. Assuming that marijuana is a drug that can cause intoxication in larger doses, there should be laws against driving after using this drug. The problem is - how can the level of a driver’s marijuana intoxication be reliably measured? What does marijuana intoxication look like? What are the symptoms? And how can a law enforcement officer tell?
According to the Washington State Liquor Control Board, the agency that will regulate marijuana production, distribution, and taxation, the recently passed Initiative I-502 “sets a per se DUI limit of "delta-9" THC levels at greater than or equal to 5 nanograms per milliliter of blood (5 ng/mL). State and local law enforcement agencies are tasked with enforcing the DUI limit.”
OK, that seems to be a clear measure for a DUI arrest. Unfortunately, the law enforcement agencies that must enforce this limit are given no information on exactly how to do this. At the Washington State Patrol website, no information is given to the public in terms of how the agency plans to enforce the new regulations.
Upon further research, we found on the site of local attorney Jonathan Rands this description of the training that law enforcement officers will receive, to give them tools to identify roadside if a driver is under the influence of drugs. This training will help law enforcement recognize the warning signs of intoxication, and will also give them probable cause to request a blood test that will accurately measure the drug levels.
At the Seattle.gov site, we found a more comprehensive description of what will happen to drivers in the Seattle metropolitan area who are pulled over by law enforcement. The Seattle Police Department Blotter, dated November 9, 2012, states:
“If an officer believes you’re driving under the influence of anything, they will conduct a field sobriety test and may consult with a drug recognition expert. If officers establish probable cause, they will bring you to a precinct and ask your permission to draw your blood for testing. If officers have reason to believe you’re under the influence of something, they can get a warrant for a blood draw from a judge. If you’re in a serious accident, then a blood draw will be mandatory.”
OK, as best we can tell, this seems like the most current plan to deal with the potential for marijuana-intoxicated drivers.
However, this plan does nothing to inform drivers how to know when they are intoxicated by marijuana and should not drive. With alcohol, there is a lot of research and data showing that the human body can process one drink per hour, what the size and potency of that drink is, and that drinking more than that will result in intoxication. Of course, the effects of alcohol vary from person to person, and are affected by:
- food intake;
- sleep and illness;
- body size;
So presumably, similar variations will occur with marijuana intake and intoxication as well. However, given the range in potency amongst the different strains of marijuana, and the different rates of ingestion depending on the method used to ingest the drug, the individual effects on an individual person will vary wildly.
When we did research on the data regarding marijuana intoxication, and the results were decidedly less clear cut. For example, the National Highway Traffic Safety Administration (NHTSA) states, in regards to interpreting blood tests, that “It is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects.” NHTSA also states that “Effects from smoking cannabis products are felt within minutes and reach their peak in 10-30 minutes. Typical marijuana smokers experience a high that lasts approximately 2 hours. Most behavioral and physiological effects return to baseline levels within 3-5 hours after drug use.”
Dr. Matthew C. Lee, a physician and pharmacologist, states that:
“The difficulty and so far the prohibitive factor in accurately establishing an absolute correlation between some measured value, i.e. blood concentration of Δ-9 THC (the primary psychoactive component in marijuana) and intoxication (where intoxication and impairment for the purpose of this article are equivalent) of a given individual is the complex pharmacology and pharmacokinetics of marijuana.”
Dr. Lee also says that “as of 2010 there is no reliable method of quantitatively determining if a person is impaired due to marijuana consumption on blood or body fluid concentrations alone…. And given the complex pharmacology of marijuana, and multitude of individual characteristics that determine the impairment or intoxication due to marijuana consumption, it will likely be a long time before we see this technology commercially available.”
There is not much long-term research on the role that marijuana usage plays in car accidents. The British Medical Journal recently reported a study that found that “driving under the influence of cannabis was associated with a significantly increased risk of motor vehicle collisions compared with unimpaired driving.” Other studies find similar data, while some studies refute these claims. The long-standing organization The National Organization for the Reform of Marijuana Laws (NORML), while certainly with some bias, reviewed the results of numerous studies that found marijuana intoxication did not appear to play a significant role in car crashes.
OK then. Washington State consumers of legal marijuana find themselves on a slippery slope in terms of driving stoned. As with alcohol consumption, it is legal to drive after having consumed the drug, but only to a certain point. The decision for a driver to get behind the wheel is solely theirs, and drivers are expected to make good decisions about their capacities to drive safely under the influence, based only upon how much they think they have consumed and they are feeling at the time.
Once a driver is pulled over by law enforcement, for any reason, the officer has the right to arrest the driver for intoxication, based upon the officer’s observance of driving actions and driver behavior. Apparently the officer has the discretion to request a blood test, to check for alcohol or marijuana intoxication. It is unclear how the testing process will be handled and paid for, what will happen if the arrested driver has the option to refuse a blood test, and how that refusal will affect the charges against him.
Also unclear is how these issues will be handled within the judicial system. For example, what will be the effect of a charge of marijuana intoxication be addressed by a defense attorney? Will this charge hold up in court, given the lack of certainty and scientific evidence that the charge is just? Will appeals courts be inundated with a host of marijuana cases, similar to past experience related to the validity of breath tests for alcohol?
The ever-changing landscape of legal marijuana is fascinating to watch as it evolves. As legal professionals, we are keeping our eye on how statutes and case law are applied, and we will continue to post on these issues as they arise. As personal injury lawyers, we are closely watching to see if marijuana intoxication charges begin to show up in case law, and we wonder how that will affect our clients’ claims.
For now, it appears that users of legal marijuana need to be aware of the drug’s effects and of the potential for criminal charges if caught driving under the influence. It’s also important to know that these new regulations are in flux, changing rapidly, and will undoubtedly continue to morph as they take affect and are challenged in courts. We will continue to watch and report on the issues that arise out of Washington’s new recreational marijuana use laws.
If you have been injured in an accident and need information about your rights and options, contact the Brett Murphy personal injury lawyers today by calling 1-800-925-1875 or by completing our convenient contact form.
When Brett Murphy client Hailey French was awarded a $5.5 million verdict in her personal injury case against a drunk driver and two government agencies that were also negligent, we heard some backlash from folks who couldn’t understand why so much money should go to one person, even though that person was severely injured. Some people felt that there was no justification for giving millions of dollars to our client, even though she nearly died in the car accident, went through 13 surgeries and years of medical treatment, and will carry the scars and disability caused by her injuries for the rest of her life.
But to truly understand why a multi-million dollar verdict is appropriate in this case, you need only to watch the new video called Hailey’s Story, created by Hailey French in collaboration with the Washington Association for Justice, to learn why this verdict will perhaps only cover Hailey’s medical bills during her lifetime.
Hailey’s story begins in a dark Whatcom County highway back in 2007, when she was driving to work and was hit head-on by a drunk driver. But the whole story begins much earlier, when the same drunk driver was put on probation for a previous drunk driving arrest. One condition of her probation was to have an alcohol interlock device installed on her vehicle. The driver never complied with this condition, and the Whatcom County District Court Probation Department never complied with its requirement to ensure the interlock device was installed. Because of this negligence, the drunk driver was able to drink and drive again.
Earlier in the evening on the night of Hailey’s crash, the drunk driver had been arrested by a Washington State Patrol trooper. Instead of putting the drunk driver in jail, and instead of impounding her car, the trooper gave the drunk a ride home, gave her back the car keys, and told her not to drive until she was sober.
Instead, the drunk called a cab, went back to her parked car, and attempted to drive back home. In the process, she crossed the centerline and hit Hailey head on, nearly killing her.
Brett Murphy attorney Dean Brett took on this challenging case, knowing that there was only $25,000 in insurance coverage available from the drunk driver’s policy. After a lengthy trial, Hailey French was awarded $5.5 million, the largest jury verdict in Skagit County history.
Following this verdict, Hailey French worked with Washington State lawmakers to create Hailey’s Law, which requires law enforcement officers to impound the vehicles of drunk drivers for 12 hours, to avoid the tragedy that happened to Hailey. The new law will significantly increase safety on Washington State roads and freeways.
Read more details of the crash and the case at our page called Hailey’s Story.
If you have been seriously injured in a car accident and need information about your rights and options, contact the Brett Murphy personal injury attorneys today by calling 1-800-925-1875 or by completing our convenient contact form.
Finally, after almost one year of planning, debate, and hearings, Washington State adopted new regulations related to the growth, sales, and regulation of marijuana. Residents of Washington at last have the information they need to engage legally in the recreational use of pot, as approved by the majority of Washington voters through Initiative 502, passed in 2012.
According to the Washington State Liquor Control Board, which is charged with regulating the legal marijuana industry, the new regulations determine how marijuana is produced, distributed, and taxed, and will remove any criminal and civil penalties resulting from Washington State law. The new regulations are similar to existing ones related to the production and sale of alcohol.
Federal law, which prohibits the production, sale, and use of marijuana, remain in effect.
Highlights of the new rules, which become effective on November 16, 2013, include:
- People wishing to obtain a license to produce and sell marijuana must be a Washington State resident, must complete a criminal background check and fingerprinting, must pay fees and taxes, must carry commercial liability insurance, and must adhere to regulations regarding the amount of marijuana produced.
- Public safety measures including a tracing system to track product from production to sale, $1000 fine for sale to a minor, child-resistant packaging for marijuana products, strict transportation and record-keeping requirements, and limits on the number of retail stores.
- Consumer safety measures that include retail storage, packaging, and labeling requirements, serving size restrictions, limits on the size of transactions, and lab testing requirements.
The Brett Murphy legal team has represented many clients who were injured in car accidents with drunk/drugged drivers. For example, Brett Murphy attorney Dean Brett handled a wrongful death case regarding a teen pedestrian who was killed by a drugged driver, resulting in a $1 million settlement.
While we support laws that are passed by Washington State citizens, we are concerned that the new legalization of recreational marijuana may exacerbate the problem with drunk and drugged driving, since marijuana can interact with alcohol and with prescription medications to create a driver who is impaired.
We strongly encourage drivers to avoid getting behind the wheel until the effects of marijuana has worn off. According to the new law, people with a THC blood content of 5 nanograms per milliliter shouldn’t get behind the wheel. Since it is impossible to know what a person’s blood content is without a blood test, we hope that anyone who has used marijuana products will avoid driving, just as with alcohol use.
If you have been seriously injured in an accident and need information regarding your rights and options, contact the Brett Murphy legal team today by calling 1-800-925-1875 or by completing our convenient contact form.
In Washburn v City of Federal Way No. 87906-1 (not yet reported), an October 17, 2013, unanimous decision, the Washington Supreme Court again struck a blow against the now teetering public duty doctrine. This brief note will address three questions:
- What is the narrow holding of Washburn?
- How does Washburn help understand recent Supreme Court rulings on the public duty doctrine?
- What does Washburn mean for plaintiff personal injury lawyers?
1. What is the narrow holding of Washburn?
In Washburn, Kim murdered Roznowski after Federal Way Police Department officer Hensing served Kim with an anti-harassment order forbidding Kim from contacting or remaining near Roznowski. Washburn (Roznowski’s heirs) sued the Federal Way Police Department alleging that officer Hensing’s negligent service of the order resulted in Roznowski’s death at Kim’s hands. Officer Hensing had handed the order to Kim, who spoke little English, even though Roznowski had left instructions to bring a Korean interpreter to the service. Hensing had then left Roznowski’s house where the order was served despite knowing that Roznowski was present, that Kim had a history of assault, and that Kim was likely to react violently to service of the order.
The city argued that it owed Roznowski no duty under the public duty doctrine. “We disagree. The City had a duty to serve the anti-harassment order on Kim, and because it had a duty to act, it had a duty to act with reasonable care in serving the order.”
The court held that the City owed two different duties to Roznowski.
First, the City had a legal duty to serve the anti-harassment order under a statute designed to protect victims of harassment.
The Court recited the familiar genesis of the public duty doctrine: the 1961 abolishment of sovereign immunity; the court’s use of the public duty doctrine as a “focusing tool” to determine whether a duty is actually owed to an individual rather than to the public at large; the common exceptions to the public duty doctrine initially enunciated in Bailey v Town of Forks, 108 Wn.2d 262, 737 P.2d. 1257, 753 P.2d 523 (1987); and the conclusion that the “…true question…is whether the entity owed a duty to the plaintiff, not whether an exception to the public duty doctrine applies.”
The court then relied on the “legislative intent exception,” allowing a plaintiff to claim that a government entity owes him or her a legal duty where a legislative enactment “…evidences a clear legislative intent to identify and protect a particular and circumscribed class of persons.” Honcoop v State, 111 Wn.2d 182, 759 P.2d 1188 (1988). Since the stated legislative intent of RCW 10.14 was to protect victims of harassment (the particular and circumscribed class), and since the statue imposes on police officers the duty to serve anti-harassment orders, culpable neglect in carrying out this duty carries liability.
If the Court had stopped there, the case would be just another unremarkable example of duty imposed under an established exception to the public duty doctrine. Undoubtedly government entities will so read the case. However, the court went on to enunciate a second basis for its conclusion.
2. How does Washburn help understand recent Supreme Court rulings on the public duty doctrine?
As a second basis for its decision, the court held that the City owed Roznowski a duty to guard against the danger she faced at Kim’s hands because officer Hensing’s actions created that danger. This holding is an attempt to further refine the Court’s recent decision in Robb v City of Seattle, 176 Wn2d 427, 295 P.3d 212 (2013).
Again, the court begins by reciting the evolution of known rules: actors have a duty to exercise reasonable care to avoid the foreseeable consequence of their conduct; this duty extends to avoiding exposing another to harm from the foreseeable conduct of a third party; criminal conduct is generally not foreseeable; generally there is no duty to prevent third parties from causing criminal harm to others; but criminal conduct is not unforeseeable per se; and thus the Court has “…adopted Restatement Sec. 302 B, which provides that, in limited circumstances, an actor’s duty to act reasonably includes a duty to take steps to guard another against the criminal conduct of a third party,” citing Robb, 176 Wn.2d at 439-440.
This duty to protect against the criminal acts of third parties can arise “where the actor’s own affirmative act has created or exposed the other to a recognizably high degree of risk of harm through such misconduct.” Robb, 176 Wn.2d at 434 (quoting restatement section 302 B) (emphasis added).
The balance of the Washburn opinion is an exercise in determining whether an act is “affirmative” and “misfeasance” creating a duty to act reasonably to prevent foreseeable criminal conduct, or “an omission” and “nonfeasance” which does not support such a duty.
A close reading of Robb demonstrates specific guidelines for how 302 B is to be understood and applied. The Robb Court too began its opinion by emphasizing the distinction between misfeasance and nonfeasance, noting that “the line between the two is far from easy to draw.” Robb, 176 Wn.2d at 436-437.
With the decision in Washburn it is now clear that the standard for how to draw the line between an affirmative act and an omission is: If conduct creates or increases a serious risk, it is affirmative action that gives rise to a duty under 302 B; if it merely leaves in place an existing risk, it does not.
The Robb Court applied this standard to an analogy proposed by plaintiff Robb to “a situation where a negligent driver fails to apply his or her brakes as a pedestrian crosses in front of the car.” At first glance, this would appear to be an archetypal example of passive inaction or nonfeasance. However, this is not the court’s conclusion because “the driver affirmatively created a new risk to the pedestrian by failing to stop his or her car.” Robb, 176 Wn.2d at 437. The court equated a new or increased risk to an affirmative action. An action that creates or increases the risk of serious harm is an affirmative act or misfeasance.
The Robb Court used this same standard to explain the result in Parrilla v. King County, 138 Wash.App. 427, 157 P.3d 879 (2007), a case in which the Court of Appeals relied on §302 B comment in finding that “King County owed a duty after a bus driver exited his bus with the engine running, leaving a visibly erratic man alone on board.” Robb, 176 Wn.2d at 435. Again, the bus driver’s conduct could have been seen as an affirmative act (exiting the bus) or as an omission (failing to remain on the bus, to turn off the engine, and to remove the keys), but what makes it misfeasance under the Supreme Court’s standard is that a new risk was created. “Similarly, in Parrilla, the bus driver created a new risk by disembarking from a bus, leaving keys in the ignition with the engine running and an erratic passenger onboard . . .” Robb, 176 Wn.2d at 437.
The Robb Court then applied this standard to the facts before it. Police officers stopped the perpetrator on suspicion of a burglary near where the perpetrator lived, but did not pick up shotgun shells lying on the ground at the location of the stop. The perpetrator subsequently shot and killed someone. The officers later explained that they did not pick up the shotgun shells because of “the lack of a connection between the shells and the reported crime that led to the stop.” Robb, 176 Wn.2d at 430. In determining whether their conduct was misfeasance or nonfeasance, the court focused on whether the police officers’ conduct created or enhanced a risk, and thus, whether the conduct gave rise to a duty.
The police officers in this case did not affirmatively create a new risk when they stopped Berhe and failed to pick up the nearby shells. The officers did not provide the shells, nor did they give Berhe the shotgun he used to kill Robb. The officers failed to remove a risk when they did not remove the shells. Berhe would have presented the same degree of risk had the Officers Lim and McDaniel never stopped him. Simply put, the situation of peril in this case existed before law enforcement stopped Berhe, and the danger was unchanged by the officers’ actions. Because they did not make the risk any worse, their failure to pick up the shells was an omission, not an affirmative act, i.e., this is a case of nonfeasance.
Robb, 176 Wn.2d at 437-438 (emphasis added).
The Robb Court quoted Prosser and Keeton on Torts (Fourth Edition), §56 to support its “increased risk of harm” standard: “Misfeasance necessarily entails the creation of a new risk of harm to the plaintiff. On the other hand, through nonfeasance, the risk is merely made no worse.” Robb, 176 Wn.2d at 437.
Following Robb by only nine months, the Washburn court again fits the facts before it into the rule derived from a close reading of Robb: If conduct creates or increases a serious risk, it is affirmative action that gives rise to a duty under 302 B; if it merely leaves in place an existing risk, it does not.
“We hold that, under the facts of this case, Hensing, as part of his duty to act reasonably, owed Roznowski a duty to guard against the criminal conduct of Kim. We find several factors created this duty.
First, Hensing knew, or should have known, that Kim could or would react violently to the service of the anti-harassment order…”
In filling out the initial law enforcement information sheet (LEIS) Roznowski had warned that Kim had a history of assault and would likely react violently to service of the order.
Second, Hensing knew, or should have known from reading the order, that he was serving Kim at Roznowski’s house and should have known that the woman in the background when he served Kim was likely Roznowski.
In addition, Roznowski had warned in the LEIS that Kim spoke little English and that a Korean translator should be present when the order was served.
Officer Hensing handed Kim the anti-harassment order and walked away -- actions that could easily be interpreted as “an omission” or “nonfeasance.” But again, the Court focused on the creation of a new risk to determine that the actions were an affirmative act and thus the basis for an actionable duty.
“Hensing created a situation that left Roznowski alone with Kim as Kim realized, or was about to realize, that Roznowski had ended their relationship. Hensing should have realized that, like the bus driver in Parrilla, and unlike the officers in Robb, he had created a new and very real risk to Roznowski’s safety based on Kim’s likely violent response to the anti-harassment order and his access to Roznowski.” (emphasis added).
The Court reached this interpretation of Hensing’s acts despite Washburn’s own framing of the issues as “…a failure to perform, such as the failure to read the LEIS, the failure to bring an interpreter, and Hensing’s decision to walk away instead of standing by to monitor Kim…”
In short, although Robb and Washburn state the rule as distinguishing between “affirmative” acts which constitute “misfeasance” and carry an actionable duty and acts which are “an omission” or “nonfeasance” which do not, the underlying and determinative focus of the Court is whether or not the action of the governmental agent creates a new risk.
In the Robb court’s response to the failure-to-brake analogy, the Robb and Washburn courts’ understanding of Parrilla, the holding in Robb, and the second basis for the decision in Washburn, the Supreme Court is now applying this standard to differentiate misfeasance from nonfeasance: If conduct creates or increases a serious risk, it is affirmative action that gives rise to a duty under 302 B; if it merely leaves in place an existing risk, it does not.
Since the facts in all three cases could be interpreted as either affirmative acts or passive inaction, Washburn makes plain that the Robb and Parrilla line of cases depend on an analysis of whether conduct creates or increases a serious risk, not just on a surface analysis of whether action is “affirmative” and “misfeasance” rather than “an omission” and “nonfeasance.”
3. What does Washburn mean for plaintiff personal injury lawyers?
Washburn will both expand the types of factual situations which plaintiff personal injury lawyers will undertake to prosecute, and change the way they are argued.
With two clear statements by the Supreme Court in one year that Restatement 302 B is good law in Washington, a new route through the public duty doctrine is available. If the government agent creates new risk of foreseeable harm, even if that harm is directly caused by a third party, the public duty doctrine does not prevent a valid claim.
While a careful personal injury lawyer will always attempt to fit his or her case into an established exception to the public duty doctrine under Bailey v Forks, because the law is so settled there, Restatement 302 B offers an alternative cause of action.
And once a claim is made that the government agent’s own affirmative act has created or exposed the victim to a recognizably high degree of risk of harm, the argument, though stated in terms of the agent’s affirmative conduct, must be directed to showing the court that the conduct has created or increased a serious risk. But be careful of semantics. Plaintiff’s counsel should argue that the bus driver affirmatively exited the bus, not that he failed to remain on the bus. He or she should argue that the officer affirmatively chose to leave the victim alone with the criminal, not that he passively walked away and left an existing situation to remain. While the cases turn on creation of a new risk of harm, the courts are still talking in terms of malfeasance (affirmative acts) and nonfeasance (omissions).
The history of the public duty doctrine has evolved through the 1961 abolishment of sovereign immunity, the adoption of the doctrine to protect government from claims based on the duty to protect the public in general, and has over time been subject to a death of a thousand cuts, each further limiting this defense. Washburn is another significant chop at the roots of the doctrine.
Doctors deserve relief from skyrocketing insurance premiums. And the citizens of Washington deserve to keep their constitutional rights intact. Is there an answer that will meet both goals? Not if you listen to the coalition of insurance, tobacco and drug companies that are demanding legislation to dismantle the delicate balance of our civil justice system.
Business lobbyists claim that jury verdicts and frivolous lawsuits have caused insurance companies to raise malpractice premiums. Their solution is to create special legal protections for healthcare professionals and hospitals that cause preventable life-threatening injuries, as well as for manufacturers of defective products, for governmental agencies that are negligent, and for companies like Olympic Pipeline that ignore safety guidelines.
They claim that juries – ordinary citizens such as yourselves – can’t be trusted to tell the difference between bad actions (negligence) and bad outcomes. Yet we trust juries to make much more complex decisions, including the choice of life or death in a case of capital punishment.
The business lobbyists aren’t telling you the whole story. They aren’t telling you that malpractice payouts in Washington have remained level for the past three decades. They aren’t telling you that lawyers who file frivolous lawsuits are fined by the courts.
Most importantly, the business lobby isn’t telling you that its demands for changes in how malpractice cases are handled have not brought premiums down in any other state where they have been enacted. In Florida – which recently passed similar legislation – malpractice insurers are now asking for rate increases as high as 60 percent.
So why are insurance premiums still rising? Insurance companies’ profits come primarily from how they invest premium dollars, not from the premiums themselves. Over the past few years, research indicates that insurers’ investments have not performed well. Stock values dropped, insurers raised premiums and started blaming their financial losses on others – on the justice system, on juries, and especially on ordinary people like the clients I have represented who will spend the rest of their lives permanently disabled.
Independent industry analysts have established that insurance companies themselves can stop the cycle of rising premiums. Their research indicates that this is accomplished by accepting accountability for poor past investment choices and committing to making sounder investment decisions in the future. By applying their reserves responsibility, insurance companies have the power to level out the peaks and valleys and keep rates stable.
Insurers are asking for legislation that would create a new class of individuals with special rights. Rather than supporting initiatives that would make healthcare safer for patients, the business lobby wants to give healthcare providers and institutions special status in a wide range of situations, without having to take responsibility for their actions or the harm they may cause. This sends exactly the wrong message about the need to stop the hundreds of thousands of preventable injuries or deaths that occur every year as a result of medical negligence.
The national consumer advocacy organization Public Citizen found that a relative handful of doctors are responsible for the bulk of malpractice claims. The group’s findings indicate that only 3.5 percent of the physicians in Washington have been responsible for 42.6 percent of all the insurance payouts. Many of these have had multiple claims filed, and yet no disciplinary action has been taken by the Medical Quality Assurance Commission. So it falls on the shoulders of ordinary citizens – those who have already been harmed – to help prevent future harm to others.
Gutting the civil justice system won’t bring premiums down. We need to change the insurance system. Insurance companies should be required to publicly justify their rate increases – the same way telephone and other utility companies do.
Some insurance companies’ representatives are saying they will force lawmakers to choose between giving in to corporate demands and representing the people of their districts. Legislators with the courage to stand up for the rights of injured victims are being threatened with defeat at the polls next November. That’s not democracy!
If you have been seriously injured in a car, truck, pedestrian, bicycle, or other type of accident, contact the Brett Murphy team today by calling 1-800-925-1875 or by completing our convenient contact form.
What kind of a recovery is available when your pet is injured or killed by someone’s negligence? Pretty much nothing, according to Washington State law.
Most pet owners will tell you that the value of a pet animal is qualitatively different than non-animated property and they think they can recover for their pet’s pain and suffering and for their own emotional distress for an injured or killed family pet. Unfortunately, neither type of damage is recoverable. Under Washington State law, pets are treated as “personal property” for purposes of determining what damages are recoverable.
“There is no dispute, that as a matter of law, dogs are characterized as personal property.” Mansour v. King County, 131 Wash.App. 255, 267, 128 P.3d 1241 (2006). The three part analysis for determining the correct measure of damages for the loss of personal property is set forth in McCurdy v. Union Pac. R. Co., 68 Wash.2d 457, 413 P.2d 617 (1966). Under McCurdy, the plaintiff has the burden of producing evidence to establish which measure of damages applies and the amount of damages.
If the property is a total loss the measure of damages is the value of the property destroyed or damaged. This is its market value, if it has a market value. If the property is damaged but not destroyed, the measure of damages is the difference between the market value of the property before the injury and its market value after the injury. [Again, if it has a market value.] If the property does not have a market value, then if it is a total loss, the measure of damages is the cost to replace or reproduce the article. If it cannot be reproduced or replaced, then its value to the owner may be considered in fixing damages. Sherman v. Kissinger, DVM, 146 Wn.App. 855, 871, 195 P.3d 539, 2008 (Citing McCurdy, 68 Wash.2d at 467).
“Market value” is defined to mean the “reasonable sum of money which the property would bring on a fair sale, by a man willing to sell, but not obligated to sell, to a man willing to buy, but not obligated to buy.” E.G. McCurdy, 68 Wash.2d at 472.
Attorney Steve Knapp recently settled a case in which a car accident resulted in severe injuries to the dog in the plaintiff’s vehicle. In this case, since the dog was highly trained and provided professional services to its owner, the settlement included thousands of dollars in damages to the dog.
But what if a pet doesn’t have a market value? What would the market value be for that loyal and trusted mixed breed dog you got for free from the pound, and which you’ve owned for years? Can a person recover for the sentimental value or the “intrinsic value” of their pet?
In cases where there is no market value for a pet, then a plaintiff may be entitled to intrinsic value, but not for sentimental value. The plaintiff must first meet the burden of proving that there is no market value, before intrinsic value may be considered. In order to seek intrinsic value, the plaintiff has the initial burden to produce evidence showing that the pet does not have a fair market value and cannot be replaced. Examples could include a pedigreed hunting dog that has a congenital defect which keeps it from hunting, or a cherished mixed breed dog from an animal shelter. If the plaintiff claiming damages meets this burden, then the burden shifts to the other party to present evidence on the measure of damages. Agranoff v. Morton, 54 Wash.2d 341, 347, 340 P.2d 811 (1959).
Having once met that burden, the plaintiff may then offer evidence to establish the intrinsic value of the pet. But what is a pet’s “intrinsic” value? It is essentially the value of the pet to its owner but it cannot include “sentimental value.” Sherman, 146 Wash.App. at 871-872 quoting Mieske v. Bartell Drug Co., 92 Wash.2d 40, 45, 593 P.2d 1308 (1979). In order to determine intrinsic value, the finder of fact (judge or jury) must consider objective evidence of the pet's utility and services and not the value the owner attributes to the pet's companionship or other sentimental value. Sherman, 146 Wash.App. at 871-72.
Other courts have considered the following factors in determining a pet’s intrinsic value: (training, Brousseau v. Rosenthal, 110 Misc.2d 1054, 443 N.Y.S.2d 285, 287 (1980) (training increases the value of a dog, U.S. v. Hatahley, 257 F.2d 920, 923 (10th Cir.1958) (a dog’s training and accomplishments affect its value on the open market, McDonald v. Ohio State Univ. Veterinary Hosp., 67 Ohio Misc.2d 40, 644 N.E.2d 750 (Ohio 1994). A pet’s value may also include considerations such as its pedigree and awards it has earned.
Negligent treatment of a pet by a veterinarian is not actionable as medical malpractice. In the Sherman case, Division I of the Court of Appeals ruled that the “medical malpractice act does not apply to veterinary care” for multiple reasons including that RCW 70.02.010(5) defines “health care” as treatment “that affects the structure or any function of the human body” and that the legislature uses the term “patient” throughout that statute to refer to humans.” Sherman, 146 Wash.App. at 869 (Emphasis added). Thus, if a pet dies during a veterinarian procedure, the owner is not entitled to seek damages under the medical malpractice act, and is limited to the types of damages described within this article, namely market or intrinsic value.
Similarly, this article deals only with damages resulting from injury or death to a pet caused by negligence. A pet owner may be entitled to additional damages, including emotional distress damages, where a third party maliciously injures or kills a pet. See, Womack v. Rardon, 133 Wash.App. 254, 263, 135 P.3d 542 (2006). But that topic is beyond the scope of this article.
Where a pet is negligently injured or killed, the owner is not entitled to recover loss of companionship, emotional distress damages or damage to the human-animal relationship. Pickford v. Masion, 124 Wash.App. 257, 260, 98 P.3d 1232 (2004).
Steve Knapp is a partner at Brett Murphy Coats Knapp McCandlis & Brown, Washington State’s premier personal injury and wrongful death law firm with offices in Seattle, Bellevue, Everett, Tacoma, Spokane, Vancouver, Bellingham, and Mount Vernon.
If you have been seriously injured in an accident and need to learn more about your rights and options, contact the Brett Murphy legal team today by calling 1-800-925-1875 or by completing our convenient contact form.