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

Posted Monday, April 22, 2019 by McKean J. Evans

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

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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 McKean J. Evans

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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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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DISCLAIMER: This blog is not legal advice. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice under any circumstances, nor should it be construed as creating an attorney-client relationship. The information on this blog is a general statement of the law and may not be up to date, accurate or applicable to your specific circumstances. Prior success in litigation is not an indication of future results; each case is unique and past results cannot predict future outcomes.

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