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Washington Court of Appeals Rules on Insurance Coverage and Arson Case

Posted Wednesday, February 28, 2018 by McKean J. Evans

The Washington Court of Appeals, in an unpublished decision in Schmidt v. American Commerce Insurance Company, recently decided claims against an insurance company where the jury concluded the insured burned his own house down. Schmidt rebuilt his home following landslides, but found that the home violated King County code and could not lawfully be torn down or rebuilt. Thereafter, a fire burned down the home while Mr. Schmidt was home alone. Mr. Schmidt, a firefighter, testified he was unable to put out the fire because he had previously shut off power to the home, and could not call the fire department because his phone was dead.

Mr. Schmidt made a claim for the fire to his insurance company American Commerce Insurance Company (“ACIC”). ACIC denied the claim, asserting arson. A jury concluded Mr. Schmidt set fire to his own home, and found for ACIC. After the verdict, ACIC asked the court to award ACIC its costs of defending the suit, but the court awarded ACIC only $200.00 out of its requested $30,009.67 in fees.

Mr. Schmidt asked for a new trial. He claimed ACIC’s counsel made prejudicial statements in ACIC’s closing argument to the jury by telling the jury to infer Mr. Schmidt’s guilt from the lack of his fellow firefighters supporting him at trial. Even though his lawyer failed to object to this statement, Mr. Schmidt claimed the statement was so prejudicial that he was entitled to a new trial even absent an objection. Mr. Schmidt also sought a new trial on the basis that ACIC’s lawyers prejudiced Mr. Schmidt by repeatedly pointing out Mr. Schmidt’s claims handling experts were from outside Washington. Finally, Mr. Schmidt claimed he was entitled to a new trial because ACIC disclosed new expert witness opinions in the middle of trial.

The Court of Appeals denied Mr. Schmidt’s request for a new trial. It found ACIC’s improper statements could have been cured by an instruction from the trial judge, but Mr. Schmidt’s lawyer’s failure to ask for such an instruction at the time precluded Mr. Schmidt from seeking a new trial on appeal. The Court of Appeals determined ACIC’s references to Mr. Schmidt’s expert being from outside Washington was part of an appropriate effort to show that the expert was not qualified to opine on insurer practices in Washington. Lastly, the court determined Mr. Schmidt was not prejudiced by ACIC’s late expert opinions because those opinions responded to statements by Mr. Schmidt’s experts. Mr. Schmidt’s other objections were dismissed because he failed to adequately assert them at trial.

ACIC asked the Court of Appeals to award ACIC all its attorney’s fees and costs based on the jury’s finding that Mr. Schmidt committed arson. ACIC relied on Washington statutory provisions requiring insurance policyholders to act in good faith and imposing criminal penalties for false or fraudulent insurance claims. The Court of Appeals concluded neither statute authorized attorney’s fees.

ACIC also asked the Court of Appeals to reverse the trial court’s decision that ACIC improperly failed to identify policy coverage for the interest of Mr. Schmidt’s mortgage lienholder. ACIC claimed Mr. Schmidt lacked standing to invoke policy provisions benefitting his lienholder and that Mr. Schmidt’s arson precluded his claim against ACIC. Even though the jury ultimately concluded Mr. Schmidt intentionally set fire to the house, the Court of Appeals found ACIC could be liable for failing to disclose and pay the leinholder’s coverage.

Because the Court of Appeals’ decision is unpublished, it lacks precedential value, but it is nevertheless an interesting example of the issues that can play out where both an insurer and policyholder engage in misconduct.

McKean Evans is an attorney at Pivotal Law Group representing insurance policyholders and ERISA plan participants and beneficiaries. McKean blogs regarding insurance and ERISA issues at https://seattleinsuranceanderisablog.com/.

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Washington Supreme Court Clarifies Court of Appeals Decisions of One Division Do Not Bind Other Court of Appeals Divisions

Posted Wednesday, February 21, 2018 by McKean J. Evans

On February 15, 2018, the Washington Supreme Court issued an important decision clarifying the authority of Washington’s Court of Appeals in the case In re Personal Restraint of Arnold, Case No. 94544-6. Washington’s Court of Appeals is divided into three co-equal divisions adjudicating appeals arising from Superior Courts in three geographic parts of Washington – Division One in the Seattle and North Puget Sound area, Division Two in the Tacoma and Southwest Puget Sound area, and Division Three in Eastern Washington. The Arnold decision answers the question: what weight does one Court of Appeals division give to the decisions of another division?

In the Arnold case, Division Three of the Court of Appeals considered whether Mr. Arnold was required to register as a sex offender. The Division Three based its decision on prior decisions from Divisions One and Two on similar legal issues. Division Three reasoned it was bound to follow the prior decisions of Divisions One and Two under the principle that courts must follow existing decisions of co-equal branches of the same court. Division Three found that even if the prior decisions were wrong, departing from the prior decisions would create “unjustified harm by rendering the applicable law impermissibly vague” (a principle Division Three called “horizontal stare decisis”).

Washington’s Supreme Court reversed, holding that Division Three’s deference to prior decisions of Divisions One and Two violated the statutes establishing the powers and duties of the Court of Appeals. First, the Supreme Court analyzed Washington’s sex offender registration statute and concluded the statute unambiguously required Mr. Arnold to register as a sex offender. Second, the Supreme Court analyzed the decisions from Court of Appeals Divisions One and Two to the contrary, and rejected those courts’ reasoning. Third, the Supreme Court rejected Division Three’s deference to the prior decisions of Divisions One and Two.

The Supreme Court ruled Court of Appeals Divisions must give other Divisions’ decisions “respectful consideration” but not total deference. The court rejected any kind of “horizontal stare decisis” among Court of Appeals Divisions. The Supreme Court observed the Washington Constitution and statutes specifically anticipated that different Court of Appeals Divisions would disagree, and placed responsibility with the Supreme Court to resolve such disagreements. Conflicts among the Court of Appeals must be resolved by the Supreme Court, not by deference to prior Court of Appeals decisions. The Supreme Court recognized conflicting Court of Appeals decisions can create confusion, but affirmed that “our current system of rigorous debate” between Court of Appeals Divisions “creates the best structure for the development of Washington common law.”

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Insurance Regulators Investigating Aetna for Training Employees to Deny Coverage Without Reviewing Patient's Medical Records

Posted Wednesday, February 14, 2018 by McKean J. Evans

Aetna, the country’s third largest health insurer, is under investigation by state insurance regulators following Aetna’s admission that it routinely denies medical treatment coverage without reviewing the insured’s medical records. Aetna’s admission surfaced in a lawsuit by a California man who claimed Aetna improperly denied coverage for his medical treatment. The insured has a rare autoimmune disorder requiring monthly dosages of an expensive medication.

Aetna’s physician admitted in the course of the lawsuit that he routinely denied coverage for insured’s treatment without reviewing the insured’s medical records. Aetna’s training, the physician testified, permitted him to simply follow the recommendations of Aetna’s nurses.

Since the physician claimed to have followed Aetna’s normal procedures, other Aetna insureds may similarly have had coverage for necessary treatment erroneously denied by reviewing physicians who failed to examine their medical records.

Insurance coverage for chronic conditions has become a hot-button issue. In recent years, patients with rare chronic diseases have faced increasing challenges getting insurers to cover treatment. Insureds’ difficulty covering treatment for chronic diseases is often complicated by pharmaceutical companies’ increasingly common practice of raising prices on chronic disease medications by several hundred percent in a single increase.

Washington insureds who suspect their health coverage was improperly denied have ample legal recourse. If the insurance plan is through an employer, the federal Employee Retirement Income Security Act (“ERISA”) gives the patient the right to appeal a coverage denial, to sue in federal court if the appeal is wrongfully denied, and to obtain coverage and attorneys’ fees. For non-employer insurance, Washington’s Insurance Fair Conduct Act and Consumer Protection Act give insureds the right to bring a lawsuit to obtain coverage as well as exemplary damages and attorneys’ fees.

Pivotal Law Group attorney McKean Evans has obtained favorable coverage decisions for insureds and ERISA plan participants in disputes regarding coverage denials. If you have concerns regarding insurance coverage, contact McKean at (206) 805-1493 for a free consultation.

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When Can Employers Rely On Employees’ Criminal Background Checks In Making Employment Decisions?

Posted Wednesday, February 7, 2018 by McKean J. Evans

Many employers routinely run background checks, including for criminal history, as part of screening prospective employees. Washington and federal law require employers follow specific procedures when performing background checks, and give employees specific rights in this respect. Employers and employees benefit from understanding their rights and responsibilities regarding employment background checks.

The Washington Administrative Code limits employers’ inquiries into prospective employees’ arrest history, on the basis that arrests, standing alone, are not a statistically reliable indicator of criminal behavior and may disproportionately impact some racial and ethnic minorities. Accordingly, employers asking about prospective employees’ criminal history must also ask whether charges are still pending or have been dismissed, whether the arrest led to conviction of a crime involving behavior that would adversely affect job performance, and whether the arrest occurred within the last ten years. Similarly, employers’ inquiries regarding prospective employees’ criminal convictions must reasonably relate to job duties and be limited in time to the last ten years. These requirements do not apply to law enforcement and state agencies, school districts, or organizations responsible for the care of children or vulnerable adults.

Employees may find it wise to request copies of their criminal history, especially if they plan to apply for new jobs. That enables job-seekers to be informed, answer questions accurately and correct any mistakes in the employer’s background check. Regardless of their criminal history, employees should always answer employment application questions accurately, including with regards to criminal history. Generally, employers can lawfully decline to hire, or terminate, employees or prospective employees who lie on job applications.

Besides Washington law limiting employers’ criminal history inquires, the federal Fair Credit Reporting Act (“FCRA”) applies to employer background checks utilizing consumer reporting agencies. The FCRA requires employers requesting consumer reports obtain the applicant’s advance written consent, as well as notice that the report may be used as the basis for making employment decisions. If the employer takes an adverse action (e.g., declining to hire, refusing to promote, or terminating employment) based on the background check from the consumer reporting agency, the employer must notify the applicant or employee that its adverse action was based on the background check. This rule applies regardless of whether the background check was the ultimate or definitive reason for the adverse action, as long as the employer relied on the background check to at least some degree. Further, employees are entitled to obtain a copy of their background check performed by a credit reporting agency if their employer takes adverse action based on the report.

Employees or employers with questions regarding their rights and obligations about employment background checks may contact Pivotal Law Group attorney McKean J. Evans for a free consultation.

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CASE LAW UPDATE: City liability for sewer back up

Posted Wednesday, January 31, 2018 by Christopher L. Thayer

In Acosta v. Mabton, the Court of Appeals (Division III)(No. 35159-9, 2018), recently addressed whether a property owner had a claim against the city (Mabton, WA) when sewage backed up and flooded their residence. In Acosta, on the morning of January 12, 2015, the Acostas woke up to find their basement flooded with sewage. The Acostas called the city who sent out public works employees to investigate. The city employees were able to clear the blockage, though contemporaneous reports do not reference the cause of the blockage. Photos showed large amounts of grease in the line, and at a City Council meeting the mayor of Mabton noted: A lot of times we have grease problems. Everybody knows that. We know that when it does get backed up, it is … it ends up right there for whatever reason. That’s where it ends up in the system … it’s on B Street and Sixth … near Sixth Street. And that’s where everything tends to end up and it starts to back up from there.

The Acostas sued the city. In depositions, city employees claimed, for the first time, that when the blockage was cleared the employees saw a partially deflated 8 ½ inch basketball in the sewer line, which they think may have caused the blockage. The Acostas argued there was no evidence of a ball, nor any reference to a ball in the contemporaneous reports by the city workers on site. The city employees also testified that the city had problems with grease clogging sewer lines. Until 1-2 years before the Acosta’s problem, as part of a maintenance plan, the city had annually jetted out its sewer lines or used a special product designed to melt fat deposits.

The trial court dismissed the Acostas’ claim, based on the City’s argument that a ball had blocked the sewer line, and not faulty or poor maintenance by the city. The Acostas appealed.

A municipality has a duty to exercise reasonable care in the repair and maintenance of its sewage systems. Kempter v. City of Soap Lake , 132 Wn. App. 155, 158, 130 P.3d 420 (2006). This ’”duty to keep its sewers in repair, is not performed, by waiting to be notified by citizens that they are out of repair, and repairing them only when the attention of the officials is called to the damage they have occasioned by having become dilapidated or obstructed.’” Vittucci Importing Co. v. City of Seattle, 72 Wash.192, 195, 130 P. 109 (1913) (quoting McCarthy v. City of Syracuse, 46 N.Y. 194, 197-98 (1871)). ’”Where the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to be anticipated and could be guarded against by occasional examination and cleansing, the omission to make such examinations and to keep the sewers clear is a neglect of duty which renders the city liable.’” Id. at 196 (quoting McCarthy, 46 N.Y. at 198).

The Court of Appeals ruled it was error for the trial court to dismiss the Acostas’ case, and that a trier of fact could find the City breached its duty, based on the testimony of the city employees regarding the lapse in maintenance procedures and reversed the trial court.

Proving the cause of a sewer back up can be tricky. It is important to have a camera run up the line to document the cause, if possible, of the blockage. In general, a property owner is responsible for maintaining their sewer line out to the point where the line connects with the main line. If you have questions, or need assistance in determining whether you might have a claim, please feel free to contact Managing Member, Chris Thayer, at (206) 805-1494 or CThayer@PivotalLawGroup.com.

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