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Estate Planning Legal Update: WA State Legislature Passes Bill Allowing Human Composting As Alternative to Traditional Burial

Posted Thursday, April 25, 2019 by Pivotal Law Group

Washington State’s legislature recently passed a bill (Senate Bill 5001) that would allow human composting as an alternative to burial or cremation.

The bill legalizes disposal of human remains via “natural organic reduction,” which is the accelerated decomposition of human remains into soil. The process transforms human remains into soil over only a few weeks. The bill also legalizes a similar process, “alkaline hydrolysis,” the reduction of human remains using heat, pressure, water, and base chemical agents. The bill allows persons to establish their desire to have their remains composted through a valid written document signed in the presence of witnesses. The new law also establishes regulation of human composting providers.

The new bill emphasizes: “A person has the right to control the disposition of his or her own remains without the pre-death or post-death consent of another person.”

The bill is expected to be signed by the Governor, and will take effect May 1, 2010.

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Supreme Court to Decide Whether Federal Civil Rights Laws Protect LGBT Employees

Posted Monday, April 22, 2019 by Pivotal Law Group

Federal law generally prohibits workplace discrimination based on gender. An open question has been whether discrimination “because of gender” includes discrimination against LGBT employees. Some courts have said yes, reasoning that at least some discrimination against gay or transgender employees boils down to discrimination on the basis of failing to conform to perceived traditional gender roles; other courts have gone the other way.

Today, the U.S. Supreme Court announced it is taking up a trio of cases that will decide the question. In two cases, employees sued their employers alleging they were let go because they were gay. In the third, a transgender woman sued her employer for terminating her for failing to conform to what the employer characterized as “God’s commands.”

These decisions will be significant for both workers and employers because they will clarify whether LGBT workers are protected by federal anti-discrimination laws.

Notably, there is no question that Washington State employees are protected from discrimination on the basis of sexual orientation or gender identity. Washington State’s Law Against Discrimination explicitly protects employees and others from discrimination on the basis of sexual orientation or gender identity.

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Robert Mueller's Report

Posted Friday, April 19, 2019 by Christopher L. Thayer

Link Text

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Case Law Update: Roller Coaster Injury and Res Ipsa Loquitur

Posted Thursday, April 4, 2019 by Christopher L. Thayer

In Brugh v. Fun-Tastic Rides Co., (51055-3, March 26, 2019) the Washington Court of Appeals (Division II) recently addressed application of the Res Ipsa Loquitur (latin for “the thing speaks for itself) doctrine in the context of an injury suffered on a roller coaster ride.

Fun-Tastic operated a roller coaster at the Washington State Fair. Brugh rode the roller coaster and described the last turn on the ride as a “sudden and violent jolt”. As a result of this jolt, she struck both sides of her head on the roller coaster’s safety harness. She lost hearing in one ear and went to the doctor, who noted bleeding from both ears. Over the next few weeks she developed severe head and neck pain and was ultimately diagnosed with a severe traumatic brain injury and a subdural hematoma.

Brugh subsequently sued Fun-Tastic for negligence seeking an award of damages for her injuries. The trial court, after reconsideration, granted Fun-Tastic’s request and dismissed Brugh’s lawsuit on summary judgment. Brugh appealed.

In an action for negligence, a plaintiff must prove four elements: (1) the existence of a duty, (2) breach of that duty, (3) resulting injury/damages, and (4) proximate cause.

The concept of Res Ipsa Loquitur “provides an inference as to defendant’s breach of duty”. Curtis v. Lein, 169 Wn. 2d 884 (2010). A plaintiff may rely on the doctrine of Res Ipsa Loquitur to establish an inference of a breach of the applicable duty if three elements are satisfied: (1) the accident or occurrence which caused plaintiff injury would not ordinarily happen in the absence of negligence, (2) the instrumentality or agency which caused plaintiff’s injury was in defendant’s exclusive control, and (3) plaintiff did not contribute to the accident or occurrence. In the Brugh case, the parties only disputed the first element – whether the accident or occurrence would not ordinarily happen in the absence of negligence.

This element of the doctrine is satisfied in any of the three scenarios:

(1) When the act causing the injury is so palpably negligent that it may be inferred as a matter of law … ; (2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; or (3) when proof by experts in an esoteric field creates and inference that negligence caused the injuries.

The Court of Appeals found Brugh’s injuries were not of a type to be generally expected while riding a roller coaster, reasoning:

We recognize that certain injuries are to be expected while riding roller coasters. For example, general experience teaches that people may receive minor bumps to their head from the safety harness of a roller coaster during a ride. General experience teaches that people may receive minor whiplash while riding a roller coaster. However, general experience teaches that a subdural hematoma brain bleed does not ordinarily happen while strapped in to a roller coaster in the absence of negligence.

Plaintiff apparently had no evidence of any specific defect or malfunction of the roller coaster. The court struggled with whether significant injury, in and of itself, could be sufficient to raise the inference of the Res Ipsa Loquitur doctrine. Ultimately, the court concluded it did and reverse the trial court sending the case back for further proceedings.

If you have a question about a potential personal injury claim, please contact managing member Chris Thayer at (206) 805-1494 or CThayer@PivotalLawGroup.com.

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Does ERISA Apply to COBRA Coverage?

Posted Thursday, April 4, 2019 by Pivotal Law Group

ERISA applies to most insurance obtained through an employer (https://pivotallawgroup.com/Blog/2018/01/What-is-ERISA-and-How-Does-It-A). “COBRA” coverage is insurance coverage you get after your employment ends. So it’s understandable if you assume that COBRA coverage isn’t ERISA-governed.

Surprisingly, many courts have held that ERISA governs COBRA coverage after all.

ERISA generally applies to any insurance procured by an employer for the purpose of providing insurance benefits for its employees. When an employee’s employment ends under the right circumstances, the employee is eligible to purchase COBRA coverage to replace the lost employer-sponsored coverage. Congress enacted COBRA (the “Consolidated Omnibus Budget Reconciliation Act”) in 1986 to make sure people changing jobs don’t have a gap in their insurance coverage. COBRA requires that certain employer-sponsored insurance benefits plan allow employees changing jobs to continue coverage under the right circumstances. COBRA coverage must generally be identical to the coverage the former employer provides. And if the employer modifies coverage, the modifications must generally apply to the former employee’s COBRA coverage.

Thus, even though COBRA coverage would appear to be distinct from the employer’s ERISA plan, a former employee with COBRA coverage is effectively continuing to participate in their former employer’s ERISA plan by paying the premiums themselves.

For that reason, courts typically treat COBRA coverage as ERISA-governed - a result that might be counterintuitive for many employees.

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