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The Pivotal Law Blog

State ordered to pay for destruction of emails in Oso case

Posted Wednesday, October 5, 2016 by Pivotal Law Group

OsoKing County Superior Court Judge Roger Rogoff announced yesterday he would sanction the state over the deletion of emails that should have been preserved during litigation over the 2014 Oso landslide.

Rogoff did not set a dollar figure on the amount of the sanctions, but said they would include costs that lawyers for slide victims incurred because of the deletions, along with a “significant” punitive amount.

The judge also said the jury in the case, which is scheduled for opening statements next Monday, will be allowed to infer that the experts deleted the emails because they would have hurt the state’s case.

That same day, Attorney General Bob Ferguson released a statement regarding Judge Rogoff’s ruling:

I respect today’s order from Judge Rogoff in the Oso litigation. I recognize and take responsibility for the errors of my office in conducting discovery in this important case.

Ferguson promised his office “continues to work diligently to rectify our mistakes” and “have already begun developing new internal training programs to ensure this problem does not occur again.”

It was also announced Mark Jobson, a Washington state special assistant attorney general who knew state expert witnesses were deleting the emails, had been let go by the Washington Attorney General’s Office.

Plaintiffs allege the state and a timber company should be held liable for the slide because construction of a sediment retention wall and logging made the hillside more dangerous, and they failed to warn residents of the danger. With regard to the emails, they argue the experts tailored heir filings to benefit the state’s case and deleted the emails to cover their tracks.

Click here for a link to the full article and here for a link to the Attorney General’s announcement, or see the links below:

http://www.seattletimes.com/seattle-news/northwest/judge-state-must-pay-for-email-destruction-in-oso-case/

http://www.atg.wa.gov/news/news-releases/statement-ag-ferguson-regarding-oso-ruling

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How to manage the Facebook account of a loved one who has died

Posted Wednesday, September 28, 2016 by Pivotal Law Group

FacebookIn this age of the internet, many of our “assets” are now digital. This is why in June, Washington State passed the Digital Assets Act, which gives a deceased person’s fiduciary the legal authority to manage their “digital assets.” We addressed this Act in greater detail here.

Some custodians of those assets, like Facebook, have also enacted their own policies and online tools for directing who can manage the person’s account after they die and in what way. Facebook allows users to designate a “legacy contact”:

Legacy contacts can post a pinned post at the top of the deceased user’s Timeline, respond to new friend requests, and update the person’s profile picture and cover photo. They can also, with the deceased user’s permission, download an archive of the user’s photos, Timeline posts, and profile information.

Legacy contacts cannot log into the deceased user’s account and see any of their private information, such as Facebook messages. They also cannot remove the user’s past posts, photos or friends.

If a user does not designate a legacy contact, their Facebook page can either be “memorialized,” or deleted at the request of an immediate family member:

A memorialized account will have the word “Remembering” in front of the person’s name, and will not show up in Facebook ads, “People You May Know,” or send out reminders on the person’s birthday. Memorialized accounts cannot be logged into, so memorializing someone’s account also prevents the account from getting hacked.

But remember: if, under the Washington Digital Assets Act, a person names a fiduciary and authorizes them to have different access to digital assets, that direction overrides any terms-of-service agreements to the contrary.

This is a constantly changing area of law, and the interplay between the Digital Assets Act and terms of service (like Facebook’s) is still an open question. The important thing to remember is to make your wishes known as to how you want your assets – digital or otherwise – handled.

Click here for a link to the full article on Facebook’s legacy options, or see the link below:

https://www.cnet.com/how-to/how-to-memorialize-someones-facebook-account/

Photo credit: 66 million can’t be wrong, used under the Creative Commons license.

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Mortgage Contracts Cannot Give Lenders the Right to Enter and Secure a Property Before Foreclosure

Posted Wednesday, September 21, 2016 by Pivotal Law Group

foreclosureWhen a person mortgages a property and then fails to make the required mortgage payments, the lender may not take possession of the property until it has gone through foreclosure. This is the rule by Washington statute, specifically RCW 7.28.230(1). This statute essentially codified the “lien theory of mortgages” in Washington – meaning the mortgage is “nothing more than a lien upon the property,” as opposed to “a conveyance entitling the mortgagee to possession.” W. Loan & Bldg. Co. v. Mifflin, 162 Wash. 33, 39, 297 P. 743 (1931).

Recently, in the case of Jordan v. Nationstar Mortgage, LLC, No. 92081-8 (July 7, 2016), the Washington State Supreme Court addressed whether a borrower and lender could circumvent this rule by entering into a contractual agreement before the borrower has defaulted (failed to pay), allowing the lender to enter, maintain, and secure the property before foreclosure has occurred. The Court answered: No.

In Jordan, the borrower (Jordan) bought a home secured by a Deed of Trust – which, for purposes of this case, is similar to a mortgage. The Deed of Trust contained certain “entry provisions,” which provided that, should the borrower default or abandon the property, the lender may take certain actions to enter, maintain, and secure the property, including changing the locks.

Jordan defaulted on her mortgage payments, after which Nationstar, on behalf of the lender, changed the locks on Jordan’s front door, leaving behind a lockbox with the key to the new locks and a notice that it was “secured against entry by unauthorized persons to prevent possible damage.” Upon finding the notice, Jordan contacted Nationstar and was provided access to the lockbox. She took all of her belongings and vacated the house the next day.

Jordan was not the only borrower to experience this kind of “lockout.” In fact, she represented a class of 3,600 Washington homeowners who were similarly locked out of their homes by Nationstar.

The Court noted that, despite an overarching “freedom to contract,” some contractual provisions are unenforceable as a matter of law and public policy. This is so when contract terms are prohibited by statute. State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 481, 687, P.2d 1139 (1984). The Court held that Washington’s “lien theory statute,” RCW 7.28.230(1), is just such a prohibition.

Moreover, the Court held that, under the lien theory statute, exercise of the entry provisions of the Deed of Trust qualified as the lender taking “possession” of the property. Nationstar’s re-keying of the property satisfied “the key element of possession: control.” It “had the effect of communicating to Jordan that Nationstar now controlled the property” and that “She could no longer access her home without going through Nationstar.” The entry provisions gave Nationstar possession of Jordan’s home, and as a result are in conflict with Washington law and unenforceable.

The Jordan Court also addressed a second question: Whether Washington’s receivership statutes separately prohibit the entry provisions in the Deed of Trust. These statutes provide for the judicial appointment of a third-party receiver to manage the property. On this issue, the Court also answered: No. The Court held that although a receiver might be appointed in the context of mortgaged real property, such an appointment was not required. Such a requirement would illogically interfere with the “efficient and inexpensive” nonjudicial foreclosure process offered by Deeds of Trust. However, this holding makes no difference in this case, as the entry provisions are still invalid under the lien theory statute.

This decision could significantly impact thousands of borrowers and mortgages throughout Washington. Many mortgages, if not all, provide lenders with some recourse should a borrower abandon their property or otherwise fail in its upkeep. These provisions are there to protect the secured property from losing value by falling into waste. With the Jordan decision, at least one form of recourse is no longer available to the lender – intervening directly by re-keying the property pursuant to pre-default contractual provisions.

Photo credit: Louisa Thomson, used under the Creative Commons license

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Car Crashes That Happen in Autopilot Mode: Who’s To Blame?

Posted Wednesday, September 14, 2016 by Christopher L. Thayer and Alice Noman

teslaThe first known fatal crash of a Tesla vehicle while under the control of “autopilot” has sparked controversy and federal investigators. 40 year old Joshua Brown, a Tesla enthusiast, was the victim of the autopilot crash when his 2015 Tesla Model S collided with a tractor-trailer while he was using Tesla’s “autopilot” feature. Neither Mr. Brown nor the autopilot apparently applied the brakes. This is the first known fatal crash involving a self-driving car. Tesla has confirmed that the car was in autopilot mode when the crash occurred.

The incident occurred after a tractor-trailer made a left turn in front of Mr. Brown’s Tesla on a Florida highway intersection. According to Tesla, the white side of the truck against the brightly lit sky was the reason why the autopilot failed to detect the other vehicle and did not apply the emergency brake. Mr. Brown was then fatally injured after his car continued driving underneath the tractor-trailer, his roof striking the underside of the trailer, shattering his windshield, and then finally stopping after hitting a utility pole. While we may not know all the facts yet because the story continues to develop, some sources indicate that Mr. Brown was actually watching a movie on a portable device at the time of the crash.

Tesla’s autopilot feature, available when driving at cruising speeds, uses adaptive cruise control combined with a system called “Autosteer” – a form of lane departure assistance. The cruise control system uses radar and forward facing cameras to track the position of cars on the road ahead and adjust the speed of the car as needed. Meanwhile, the Autosteer function uses cameras mounted on the car to track the car’s position in the roadway relative to road markings and other nearby vehicles. Combined, the system can steer the vehicle (even changing lanes), speed up, slow down or even stop – depending on the circumstances. It is not intended, according to Tesla, to act as a “self-driving” car, but merely as a sophisticated driver’s aid system. Autopilot mode, when activated, instructs the driver to keep their hands on the steering wheel at all times – something Mr. Brown apparently failed to do.

Although self-driving vehicles are predicted to be offered to the public sometime in the near future, the current autopilot feature offered in Tesla vehicles is designed mainly to assist drivers in avoiding accidents. The Tesla autopilot function does not make the cars fully autonomous. The technology has been designed to take over steering with an ability to engage active cruise control that adjusts speed without any driver input. The vehicle can also change lanes when the driver puts on a turn signal and most importantly, the car can automatically utilize the emergency brake if it senses an imminent crash. While Tesla representatives attest to its safety, the autopilot is still in the beta-stage and customers are warned that they are responsible for remaining alert and present when using autopilot.

Experts have criticized how aggressively Tesla has been marketing the safety of their autopilot vehicles. Tesla’s co-founder, Elon Musk, has been quoted talking about the autopilot system saying, “we knew we had a system that on balance would save lives.” Tesla explicitly informs drivers of the autopilot vehicles that the autopilot function is still in beta mode. In fact, the vehicles are designed so that the autopilot function is initially turned off by default until activated by a driver. However, these warnings may not be enough for Tesla to escape liability for the May 7 crash.

Many questions arise out of a collision where the “driver” was not a person but the vehicle itself. Can Mr. Brown’s family file suit against Tesla, claiming the autopilot failed and/or was unsafe? Did Tesla’s system “fail” or was it not “reasonably safe” under the unique circumstances of the case? Tesla presumably would defend such a suit by noting that all drivers who activate autopilot are directed to keep their hands on the steering wheel and to pay attention at all times – and that Mr. Brown purportedly disregarded these warnings. What if Mr. Brown’s Tesla had struck another car, causing serious injuries or fatalities in that vehicle? Could those victims make claims against Tesla – or would they be required to sue Mr. Brown – as the actual “driver” of the car who arguably was negligent? These questions and many others remain to be sorted out by the courts or the legislatures around the country as we plunge into the world of semi-automated cars and eventually fully “self-driving” cars.

Mr. Brown’s family has hired a personal injury lawyer to look into the matter further. It has yet to be determined whether a suit will be filed.

Photo credit: benjie castillo, used under the Creative Commons license

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Life-size Sculpture Created To Withstand Car Crashes

Posted Wednesday, September 7, 2016 by Pivotal Law Group

crashAustralia’s Transport Accident Commission has teamed up with Melbourne artist Patricia Piccinini to create “Graham” – a life-size sculpture that was designed specifically to survive car crashes.

The sculpture is part of a road safety campaign that serves to remind drivers of the intense impact car crashes have on the human body.

Logan and Christian Kenfield, a trauma surgeon at Royal Melbourne Hospital, advised Piccinini about how the body responds in a crash and discussed the possible ways to enhance the human body to make it more resistant to impacts.

Some of Graham’s features include a flattened face to absorb the energy of an impact and a larger skull with more cerebrospinal fluid and ligaments to better protect his brain.

Graham is even able to avoid injury while on foot: He has hoof-like legs with added joints and knees that bend in all directions to quickly move out of the way of oncoming traffic.

Click here for a link to the full article and to see a video of Graham, or see the link below:

http://www.cnn.com/2016/07/25/health/graham-human-body-sculpture-car-accident/

Photo credit: JJTheJester, used under the Creative Commons license

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