Spokane County Bar Association's Appellate Practice CLE WASHINGTON APPELLATE LAW CASE REVIEW: Significant Cases in 2017/2018

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1 Spokane County Bar Association's Appellate Practice CLE WASHINGTON APPELLATE LAW CASE REVIEW: Significant Cases in 2017/2018 Case: Estate of Dempsey v. Spokane Washington Hospital Co., 1 Wn. App. 2d 628, rev. denied 190 Wash.2d 1012, 414 P.3d 577 (2017). Plaintiff Ellen Smith brought a medical malpractice action on behalf of herself and the Estate of Michael Dempsey, her deceased husband. Plaintiff retained a medical expert to testify in support of their case at trial. During discovery, defense counsel issued a subpoena duces tecum requesting, in part, "all letters or correspondence, either written or electronic, which were received or sent by you, concerning Michael Dempsey, which are not otherwise part of the record or chart." The request also specifically asked for all correspondence from plaintiff's counsel. Plaintiff's counsel asserted work-product and objected to the subpoena. The special discovery master issued an order requiring plaintiff to provide him all documents and found that "plaintiff's claim of 'work product' privilege protecting communications between plaintiff's counsel and Dr. Simons is inapplicable in that Dr. Simons is a testifying expert. Plaintiffs' appealed. Issues: 1. Does work-product protection extend to documents sent to a testifying expert? 2. Does work-product extend to a testifying expert's draft opinions?

2 Conclusion & Reasoning: Practice Tips: Court Rule 26(b)(4) generally precludes the discovery of documents created by counsel in the anticipation of litigation. Court Rule 26(b)(5) permits discovery of "the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Reading these rules together, the Court of Appeals reasoned that if a document is created by counsel in the anticipation of litigation it is protected. However, that protection can be waived if the attorney discloses "factual" materials that the attorney intends or expects the expert to rely upon in forming his or her opinion. Therefore, correspondence and documents are no longer categorically discoverable when given to the expert. They are only discoverable to the extent they contain "factual" information upon which the expert relies. Further, the Court considered whether "draft" reports are discoverable. The Court reasoned that experts and attorneys know that reports will be disclosed to the opposing party and any work-product is waived. However, "to the extent [an expert] prepared draft opinions, because he will not testify about draft opinions, we cannot infer that he waived work product." Continue to be judicious in correspondence to experts. Request unsigned draft reports as they are not discoverable. Separate "strategy" correspondence from "fact" correspondence. Assert work product for anything not relied upon by your expert. Clarify with your expert exactly what he or she is relying on.

3 Case: Barriga Figueroa v. Prieto Mariscal, 414 P.3d 590, 591 (Wash. Ct. App. 2018) (slip opinion) Monica Diaz, acting as parent and guardian for her son, Brayan Martinez, filed suit against Ms. Consuelo Preito for negligently driving over Mr. Martinez's leg. Prior to suit, Ms. Diaz submitted an application for personal injury protection (PIP) benefits on behalf of her son. The PIP application was signed by Ms. Diaz but was written exclusively by a legal assistant who took the facts from a police report. During trial, the PIP application was admitted as evidence. Ultimately, the jury found for Ms. Preito and found that she was not negligent in the operation of her vehicle. Plaintiff appealed and argued that it was an error to admit the PIP application as it was hearsay and work-product. Conclusion & Reasoning: Practice Tips: "A statement is not hearsay if... [t]he statement is offered against a party and is... a statement by the party's agent or servant acting within the scope of the authority to make the statement for the party. ER 801(d)(2)(iv).The legal assistant was a "speaking agent" when she wrote the PIP application signed by Ms. Diaz. Therefore, there is no hearsay and the statement is not inadmissible on this ground. Relying on Harris v Drake, the Court held that the PIP application was "work product." Critically, just as in Harris v. Drake, the Court noted that the defendant did not get the PIP application from the plaintiff or the plaintiff's attorney. Therefore, there was no waiver. Be cautious when submitting forms, applications, tort claims notices, or applications for insurance benefits on behalf of your clients. You are your client's speaking agent. Consider privilege in requesting or disclosing insurance applications.

4 Case: Fechner v. Volyn, Court of Appeals Div. III, No III May 22, 2018 Plaintiff Fechner sued Volyn Law Firm for legal malpractice. Plaintiff went to Volyn after her husband died and believed that she had a medical malpractice claim against her husband's physicians. Mr. Fechner's last date of medical treatment was May Mr. Fechner died in October Mrs. Fechner went to Volyn in October Mrs. Fechner signed paperwork with Volyn in August (This was authorization to "investigate" and not a retainer agreement.). Volyn withdrew on April 5, 2013, without filing a complaint. Under the medical negligence statute of limitations (MNSOL), the three-year statute began running on the last date of treatment: May Or upon notice of the injury: October The trial court granted Volyn's motion for summary judgment and found that he was not representing Mrs. Fechner when the statute expired. Mrs. Fechner appealed. Issues: 1. When did the statute of limitations expire? 2. Was Volyn representing Mrs. Fechner when the statute expired? Conclusion & Reasoning: The Court reiterated prior rulings that medical negligence claims are controlled by the MNSOL and not the catch-all statute. Further, the statue runs on the date of treatment or notice of injury, and not necessarily upon death. Therefore, the statue of limitations expired on October 2012 (at the latest). The Court of Appeals remanded for further proceedings. The Court of Appeals held that a material issue of fact remained as to whether Volyn was representing Mrs. Fechner. The asserted past case law, which states: Whether an attorney-client relationship exists is a question of fact that depends on the totality of the circumstances. The date of a written

5 Practice Tips: agreement or receipt of funds does not necessarily dictate the beginning of an attorney-client relationship. Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992). Instead, the existence of the relationship turns on the reasonable beliefs of the client and may be implied from the parties conduct. Id.; In re the Disciplinary Proceeding Against McGlothlen, 99 Wn.2d 515, 522, 663 P.2d 1330 (1983). Based on the above rules, the Court of Appeals held that Mrs. Fechner could have reasonably believed, based on the testimony and conduct of the parties, that Volyn represented her in the medical negligence action. The matter was remanded for further proceedings. Have crystal clear expectations with your clients about the nature of your representation. Be aware of statutes of limitations and other critical deadlines of potential clients and communicate those deadlines with your client. Make decisions and send letters of representation or letters of no representation well before any deadlines. Remember, whether an attorney-client relationship exists depends on the reasonable beliefs of the client.

6 Case: Koren v. State Farm Fire & Cas. Co., 1 Wn. App. 2d 954, 408 P.3d 357, 358. Svetlana Koren's son was a passenger on a school bus when it collided with another school bus. Ms. Koren filed a PIP claim with her personal automobile insurance for his injuries. State Farm denied the claim and asserted that the policy only covers injuries arising out of an "automobile accident." The State Farm insurance policy and contract defined an "automobile" as a "motor vehicle registered or designed for carrying ten passengers or less." Because the only vehicles involved in the collision were school buses, State Farm argued, this did not constitute an "automobile collision." The trial court agreed and granted State Farm's motion for summary judgment. Issue: Did the trial court err in granting defendant's motion for summary judgment? Conclusion & Reasoning: Where the facts in a motor vehicle insurance case are not disputed, coverage depends solely on the language of the insurance policy, and the interpretation of such language is a question of law reviewed de novo. Roller v. Stonewall Ins. Co., 115 Wn.2d 679, 682, 801 P.2d 207 (1990). In construing the language of an insurance policy, the policy should be given a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance. Roller, 115 Wn.2d at 682. Courts may not create an ambiguity where the policy language is clear and unambiguous, and not fairly susceptible to different reasonable interpretations. Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 576, 964 P.2d 1173 (1998). An automobile accident is a specific kind of accident. This is because the word automobile modifies the word accident. Therefore, a collision that does not involve any vehicle that is registered for 10 passengers or less does not constitute an automobile collision.

7 Practice Tips: The Court of Appeals further explained, excluding the "accident from PIP coverage does not violate public policy." Washington law only contemplates PIP coverage for automobiles. See RCW Washington defines an automobile as a passenger car designed for carrying 10 passengers or less. RCW (1); RCW Washington law does not require insurance companies to offer PIP coverage for large capacity vehicles, such as the school buses involved in this case. Words matter and the meanings of words matter. When a contract or statute is given an explicit definition, that definition controls over the common vernacular. If you rent a 12 or 15 passenger van, avoid other large vehicles. You may not have coverage.