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Case Law Update: The Voluntary Intoxication Defense

Posted Monday, March 18, 2019 by Christopher L. Thayer

In Gerlach v. The Cove Apartments, the Court of Appeals Division I recently addressed application of the so-called “voluntary intoxication” affirmative defense in the context of a personal injury action. In Gerlach, after a long night of drinking with friends, plaintiff came back to her boyfriend’s second floor apartment. While her boyfriend was still upstairs, she fell from the second floor balcony when a mostly-rotted railing gave way. She landed on her head and was severely injured. She subsequently filed a personal injury action against the apartment complex owners. She had no recollection of what caused the fall, and there were no witnesses to confirm exactly how she fell. It was undisputed the railing was rotten.

The case proceeded to trial. Defendant argued plaintiff must have fallen while attempting to get in to the apartment while climbing in the balcony. Defendant also argued the “voluntary intoxication” defense and sought to have plaintiff’s blood alcohol level (.238) introduced into evidence. The trial court did not allow the blood alcohol evidence to be presented to the jury, but did instruct the jury plaintiff “was under the influence of intoxicating liquor at the time of the accident.” The jury returned a verdict in favor of plaintiff for over $3.7 million, which was reduced to $3.5 million based on the jury’s finding plaintiff was 7% at fault. Defendant appealed, claiming the trial court erred when it prohibited introduction of plaintiff’s blood alcohol level into evidence.

The voluntary intoxication defense is codified as RCW 5.40.060(1). It provides a complete defense to plaintiff’s action for personal injury if she was intoxicated, her intoxication was a proximate cause of her injury, and she was more than 50 percent at fault.

RCW 5.40.060(1) states:

[l]t is a complete defense to an action for damages for personal injury or wrongful death that the person injured or killed was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and that such condition was a proximate cause of the injury or death and the trier of fact finds such person to have been more than fifty percent at fault.

The trial court had excluded the blood alcohol level under Evidence Rule 403, which allows a court to exclude evidence where such evidence may cause “unfair prejudice” and when the evidence sought to be excluded might “stimulate an emotional response rather than a rational decision….” The Court of Appeals ruled Evidence Rule 403 did not support exclusion of the blood alcohol level. The Court of Appeals reversed the trial court and remanded for a new trial.

Under Washington tort law, in most circumstances does not bar an injured party from recovering for personal injuries, even if they were partially at fault for causing their injury. Instead, in most cases, if there is evidence the injured party may have been partially at “fault” for causing their injury, the trier of fact may assign a relative percentage of liability to the injured party, which reduces the amount of their damage award (if any). Thus, if an injured party is 70% at fault, they would only receive 30% of the damages awarded. Here, under the voluntary intoxication defense, if it can be proven the person was intoxicated and more than 50% at fault – it acts as a complete bar to recovery.

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

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Know Your Rights – Long Term Care Insurance

Posted Tuesday, March 12, 2019 by Pivotal Law Group

Many people have long term care insurance, especially when they get older, because the cost of prolonged individual care due to an injury or illness can be significant. For that reason, Long Term Care insurance is often part of people’s estate plan.

Long Term Care insurance can be subject to problems because the premiums get paid for years and years before coverage is needed, and, once it is needed, the policyholder is potentially to infirm to proactively protect their rights and make sure the insurer follows the policy.

Fortunately, Washington State’s insurance regulations give policyholders specific rights under Long Term Care insurance.

Long Term Care insurance policies must clearly explain the eligibility criteria and triggers for benefits, and advise the policyholder what circumstances give rise to a claim for benefits under the policy. This includes specifying what medical findings a doctor must make to trigger coverage. Further, eligibility requirements cannot be overly restrictive and cannot require an insured be precluded from performing more than three “Activities of Daily Living” (e.g., bathing and dressing). Importantly, the Long Term Care policy must provide that the insured cannot perform an Activity of Daily living if the insured requires another person’s significant assistance.

Similarly, Long Term Care policies cannot limit benefits to unreasonable time periods or dollar amounts. And, if the Long Term Care insurance policy replaces prior coverage, the insurer cannot apply an exclusion for pre-existing conditions.

Washington State law also limits what insurers can exclude from Long Term Care policies. Long Term Care policies can only exclude coverage for things like acts of war, criminal acts, chemical dependency, etc.

Additionally, insurers cannot cancel Long Term Care policies unless they obtain for the policyholder equivalent coverage with another insurer.

Lastly, Long Term Care insurance must provide a grace period for the insured to make up missed premium payments. This right is particularly significant because the beneficiaries of Long Term Care insurance are often elderly and rely on their children or others to handle their financial affairs and pay premiums.

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Pivotal Attorney McKean J. Evans Obtains Win for Employee in ERISA Disability Coverage Lawsuit

Posted Wednesday, February 27, 2019 by Pivotal Law Group

On February 27, 2019, Pivotal Law Group attorney McKean J. Evans obtained a victory in an ERISA disability lawsuit in federal District Court in Seattle. McKean’s client was denied disability coverage because she filed her claim a few days late, even though the express terms of the ERISA plan permitted late disability claims as long as timely notice wasn’t “practical.” The employee argued timely notice wasn’t practical because, at the time, she was bedridden with serious medical ailments. The Plan’s claims administrator - MetLife - denied coverage claiming the employee had to prove “cognitive impairment” in order for her late claim to be accepted.

McKean filed a lawsuit on the employee’s behalf under ERISA in Seattle federal court, arguing MetLife violated the ERISA plan by requiring the employee to prove “cognitive impairment” where the plan required only that timely notice not be “practical.” The court ruled in the employee’s favor, finding the ERISA plan allowed the employee’s late claim as long as timely notice was not reasonable under the circumstances regardless of whether the employee suffered cognitive impairment. The court’s ruling concluded MetLife “improperly misconstrues the plain language of the Plan to impose an additional barrier for benefits.”

Pivotal Law Group attorney McKean J. Evans represents ERISA plan participants and insurance policyholders and has obtained favorable outcomes in disputes with insurance carriers in disability and other insurance disputes, including under insurance policies subject to ERISA. If you have questions regarding a disability insurance or other insurance coverage matter, contact McKean for a free consultation.

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Case Law Update: Will Contest Clause

Posted Wednesday, February 27, 2019 by Christopher L. Thayer

The Washington Court of Appeals, Division I, in the matter of In Re Rai-Choudhury (No. 77740-8-1, February 25, 2019) rendered a decision about the impact of a “no contest” clause in a Last Will and Testament.

Margaret Rai-Choudhury, age 82, executed a Last Will and Testament on July 21, 2015. She executed the Will in the presences of two witnesses. Both witnesses declared Margaret appeared to be of sound mind and under no duress or undue influence. The will declared it was Margaret’s intention to leave none of her property to ex-husband or to their only child. One-half of her estate was to go to into a trust for the benefit of her grandson, Khashon Haselrig. The Will contained a “no contest” provision, whereby a beneficiary who contests the Will loses his or her interest in the estate. Ms. Rai-Choudhury designated a professional guardian to act as her personal representative.

Ms. Rai-Choudhury died on November 25, 2016. Unable to locate the original Will, the attorney who drafted the Will filed a copy of the Will, attested to by the two witnesses who had witnessed the original Will signing. Khashon filed a motion requesting removal of the personal representative and revocation of the probate, arguing the copy of the Will should never have been admitted. Khashon argued the copy of the Will should not have been admitted because the Personal Representative had not proven the Will had not been intentionally revoked. The trial court denied Khashon’s motion. Four months later, Khashon sought to “void fraudulent admission of copy of Will”, for removal of the Personal Representative and for sanctions. The trial court again denied Khashon’s request.

The Personal Representative then sought a ruling from the trial court confirming Khashon’s actions violated the “no contest” provisions of the Will. The trial court agreed and barred Khashon from inheriting any portion of the estate. Khashon appealed.

An interested person may contest the validity of a probated will within four months following the probate by filing a will contest petition with the court. RCW 11.24.010. RCW 11.24.010 provides:

If any person interested in any will shall appear within four months immediately following the probate or rejection thereof, and by petition to the court having jurisdiction contest the validity of said will, or appear to have the will proven which has been rejected, he or she shall file a petition containing his or her objections and exceptions to said will, or to the rejection thereof. Issues respecting the competency of the deceased to make a last will and testament, or respecting the execution by a deceased of the last will and testament under restraint or undue influence or fraudulent representations, or for any other cause affecting the validity of the will or a part of it, shall be tried and determined by the court.

Generally, “no contest” clauses in wills are enforceable in Washington. In re Estate of Mumby, 97 Wn. App. 385, 393, 982 P.2d 1219 (1999). The no contest provision in Ms. Rai-Choudhury’s Will was expansive:

If a beneficiary named under this Will or one of my beneficiaries at law shall in any manner contest or attack this Will or any of its provisions, then in such event any share or interest in my estate given or passing to such contestant is hereby revoked… . This paragraph shall not be construed to apply to any action brought in good faith to interpret a provision of this Will which may be unclear or ambiguous.

The Court of Appeals noted “A court may treat a motion as a will contest, even where the petitioner styles it otherwise.” In re Estate of Finch, 172 Wn. App. 156, 162, 294 P.3d 1 (2012). Khashon cannot circumvent the no contest provision by styling his attack on the validity of the will as a procedural motion.

This decision illustrates the power of a “no contest” provision in a Will, and the perils of a bitter beneficiary who decides to pursue an aggressive litigation strategy. Khashon went from standing to inherit 50% of his grandmother’s estate to zero.

If you have a question about a Will Contest provision, please contact Managing Partner, Chris Thayer at (206) 805-1494 or CThayer@PivotalLawGroup.com.

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Digital Estate Planning Cautionary Tale: Investors Lose $190 Million in Bitcoin After The Only Person With The Password Dies

Posted Tuesday, February 5, 2019 by Pivotal Law Group

There are many reasons to regularly update your estate plan, but one particularly important reason is to ensure family and business colleagues have access to critical information in the event of your unexpected death or incapacity. A recent cautionary tale highlights the importance of planning ahead to make sure your business and family plans function smoothly if something unexpected happens.

On December 31, 2019, the Canadian cryptocurrency exchange QuadrigaCX filed for bankruptcy after announcing losses of $190 million. You might think this is another example of Bitcoin’s high-profile reversals. It’s actually much simpler - and likely much more frustrating for the exchange’s investors.

The exchange lost $190 million simply because the only person who knew the password died unexpectedly from complications of an existing but generally benign medical condition while on a business trip.

This unfortunate episode is an reminder of the importance of regular estate plan updates that include the principal’s digital assets. Even besides bitcoin, 21st-century people maintain assets of tremendous value in purely digital form; sometimes monetary, or sometimes sentimental. It’s unfortunately far too routine for individuals to pass away without accounting for these assets, leaving their loved ones and professional colleagues in the dark.

This also underscores the importance of maintaining a valid power of attorney to allow family and business arrangements to continue to function even in the event of the principal’s incapacity.

Pivotal Law Group attorney McKean Evans is a regular writer and speaker regarding digital estate planning and powers of attorney for bar associations, businesses and community groups. If you have questions regarding a power of attorney or digital estate planning issue, contact McKean for a free consultation.

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