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Ninth Circuit: A person who is unable to sit for more than four hours a day is “disabled” from sedentary work under ERISA

Posted Friday, March 24, 2017 by Pivotal Law Group

Alternative TextIn Armani v. Northwestern Mutual Life Ins. Co., 14-56866 (November 4, 2016), the Ninth Circuit joined other courts around the country in holding that a person who cannot sit for more than four hours in an eight-hour workday qualifies as “disabled” from sedentary work under the Employee Retirement Income Security Act (“ERISA”).Avery Armani worked as a full-time controller for the Renaissance Insurance Agency. His job was “sedentary,” and required him to sit for approximately seven hours a day, and stand or walk for the remaining time.

During his employment, Mr. Armani injured his back while lifting a heavy backup power supply. His family practitioner and chiropractor both agreed that, due to his back injury, Mr. Armani was limited to sitting for no more than four hours, standing for no more than two hours, and walking for no more than two hours, during an eight-hour workday.

Mr. Armani applied for long-term disability benefits from his ERISA-governed disability insurance company, Northwestern Mutual. Under the terms of his disability policy, Mr. Armani qualified as disabled during the first 24 months if he was unable to perform his “own occupation,” and after the first 24 months if he was unable to perform “any gainful occupation.” Northwestern Mutual denied his application, claiming he was capable of performing his own job as well as other gainful sedentary jobs. Mr. Armani filed suit.

At trial, Mr. Armani argued he was disabled from both his “own occupation” and from “any gainful occupation” because, by definition of the Social Security Administration (which administers government-based disability benefits), “sedentary” work requires an ability to sit for six hours. The trial court held that Northwestern Mutual was not bound by this definition, and that although Mr. Armani proved he was disabled from his “own occupation,” he failed to prove he was disabled from “any gainful occupation.”

The Ninth Circuit disagreed. The Court noted that other circuit courts “have consistently held that an employee who cannot sit for more than four hours in an eight-hour workday cannot perform work classified as ‘sedentary,’” and agreed with this “commonsense conclusion.” Regardless of whether the Social Security Administration’s definition of disability applied in this context, Mr. Armani succeeded in establishing by preponderance of the evidence that he was unable to perform gainful sedentary work, given his inability to sit for more than four hours in a workday.

Photo credit: 090724, used under the Creative Commons license.

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Recent Change in Non-Parental Custody: Raising the First Hurdle

Posted Wednesday, March 15, 2017 by Brian Edwards

HandsI have previously written about the somewhat specialized area of Family Law called Non-Parental Custody (“NPC”) in which a non-parent (frequently grandparents) seek to gain custody of a child from the child’s parents. As noted in that article, it can be an uphill battle for the potential non-parental custodian. Well, it just got harder.

I was involved in a case that, upon reaching the Washington Supreme Court, was called In the Matter of the Custody of L.M.S. This was a case that I was involved in at the trial level with a particularly difficult set of facts. In this case, 9 year-old LMS had lived with her maternal grandparents for the entirety of her life. Her mother came in and out as her life had its ups and downs. The father moved to California when LMS was two, and never came back. At some point, the state started collecting child support from the father, which was provided to the grandparents. Not terribly long after that, the father showed in Washington to claim the child because he became aware of legal problems for the mother. He filed for a modification of the Parenting Plan. The grandparents filed for Non-Parental Custody.

Non-parental custody actions and modification actions require adequate cause hearings where the Court decides if there are sufficient facts for the case to move forward for a trial. These are held early in the litigation process, and usually occur before discovery has been conducted. That was the case here.

At the adequate cause hearing, the Commissioner decided that there was no evidence that the father was “unfit” (one requirement of an NPC). Making that decision, the Commissioner dismissed the NPC action. This meant that LMS had to immediately move to California with a father that she did not know.

The decision was appealed to a Superior Court judge with an emphasis that NPC’s can be granted if there will be an actual harm to the child if they are placed with a parent. The judge disagreed with this standard, and affirmed the Commissioner’s ruling. The case then went to the Court of Appeals who affirmed the case on basically the same grounds.

The case finally went to the Washington Supreme Court where the decision was made along a 5-4 split. The Court’s decision basically undercut the growing line of cases that provided exceptions to the basic standard of “fit” parent. The effect that this will have will be to narrow the number of situations in which adequate cause for an NPC case may be found, which will strengthen the rights of parents, but may weaken the protections for children. This dichotomy was clearly in the mind of the dissent (feel free to read the dissent if you want to know exactly how I feel about this case), but the ruling means that Washington has chosen parents over children.

Photo credit: Five for Five #ds487, used under the Creative Commons license.

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Washington legislature considers law to ban holding phones while driving

Posted Thursday, March 9, 2017 by Pivotal Law Group

In an effort to reduce distracted driving, the Washington State legislature is considering a law that would ban holding an electronic device like a cell phone while driving.

Republican Sen. Ann Rivers, the sponsor of the bill, called it a good public safety measure that repeals the current statute “and replaces it with a much more simple and easier to enforce piece of law.”

Currently people are guilty of an infraction if they hold a phone to their ear while driving, or are caught text messaging.

Under the new measure, drivers would not be allowed to hold a cellphone, tablet or other electronic device in their hands while driving on a public roadway, including while being stopped in traffic. Things like holding a phone to text or use social media or watch a video would be illegal under this measure.

However, the bill would allow the use of a finger to activate or deactivate a function of a device, such as using Siri on the iPhone, and the use of a built-in touch screen control panel within a vehicle to control basic functions like the radio or air conditioning.

The Senate passed Bill 5289 on a 36-13 vote. That bill now heads to the House.

Click here for a link to the full article or see the link below:



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Washington Supreme Court: Wrongful death claims can be time-barred before a person dies

Posted Wednesday, November 30, 2016 by Pivotal Law Group

GavelWhen a person dies because of the wrongful conduct of another, Washington law allows the decedent’s personal representative to file what’s called a “wrongful death action.” Certain limitations exist on wrongful death actions. For instance, if after suffering injuries that later resulted in death, the decedent settled a claim for damages against a wrongdoer, that settlement could prevent the personal representative from suing the same wrongdoer for wrongful death caused by those same injuries.

On October 6, 2016, in the hotly contested 5-4 decision of Deggs v. Asbestos Corp. Ltd., No. 91969-I, the Washington Supreme Court upheld another limitation on the scope of wrongful death actions: namely, that a wrongful death action is barred when the time period for filing the underlying personal injury claim has passed without a claim being made.

Deggs involved decedent Ray Sundberg, who had been exposed to asbestos for decades in various dockyards and lumberyards. Between 1998 and 2000, he was diagnosed with lymphoma, pleural disease, and asbestosis. Around that same time, he filed a personal injury suit against some companies who had exposed him to asbestos, which resulted in multiple settlements as well as a jury verdict. Nine years later, Mr. Sundberg died. Shortly after his death, his personal representative Judy Deggs brought a wrongful death action, primarily against defendants who had not been sued in Mr. Sundberg’s personal injury action.

Under the 1930s cases of Calhoun v. Wash. Veneer Co., 170 Wash. 152, 15 P.2d 943 (1932), and Grant v. Fisher Flouring Mills Co., 181 Wash. 576, 44 P.2d 193 (1935), such a claim is time barred. In Calhoun, the Court held a “claim for damages accrued, if at all, at the time of the injury.” In Grant, the Court noted “at the time of death there must be a subsisting cause of action in the deceased.”

Ms. Deggs argued the Court should overrule Calhoun and Grant as bad law to the extent they barred a wrongful death action like hers. Under the case law that evolved since Calhoun, a wrongful death action does not accrue, i.e. come into existence, until after a person has died and the personal representative discovered or should have discovered the cause of action. To bar such a claim before it even exists, in the absence of clear legislative authority directing such an outcome, would be unjust and contrary to the intervening law.

While the four-Justice dissent agreed with Ms. Deggs, the five-Justice majority did not. The majority held that although Calhoun was clearly wrong about when a wrongful death cause of action accrues, Grant’s exception to the accrual rule – that “there must be an existing cause of action in the deceased at the time of death” – was not undermined by intervening law and was not clearly harmful.

The outcome of this case reinforces the importance of acting promptly to preserve your rights. If you believe you have a case, please feel free to contact us.

Photo credit: My Trusty Gavel, used under the Creative Commons license.

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ACEP recommendations for a safe Thanksgiving

Posted Tuesday, November 22, 2016 by Pivotal Law Group

ThanksgivingThanksgiving is all about family, friends, food, and fun. To help keep it that way, the American College of Emergency Physicians (ACEP) has published recommendations for a safe holiday. Those recommendations address many common issues, including:

  • Food Preparation Safety: Take care when handling uncooked meat, including washing hands and food surfaces, keeping uncooked meat separate from other foods, and cooking all foods to the proper temperature.

  • Common Injuries: The ACEP highlights two common Thanksgiving injuries – cuts and burns – and recommends for both not to rush when in the kitchen. They also provide a “special note of caution” if you plan to deep fry a turkey.

  • Driving Safety: Drive carefully, obeying all traffic laws, don’t text or use a phone while driving, always wear your seatbelt, and be rested while driving.

  • Eating Safely: Don’t eat too much or too quickly, take breaks to allow your body to process, and attend to any known medical conditions (for example, those that require prescription medications or special dietary restrictions).

  • Injury Prevention: If you engage in a traditional “Thanksgiving game” (football or the like), be careful not to overdo it, especially if doing so after the meal, or if you’re not used to regular physical activity.

For more details on the ACEP’s recommendations, click here or see the link below:


Photo credit: turkey, used under the Creative Commons license.

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