Seattle Attorneys Blog

Sixth Circuit Holds There Must Be Further Harassment to Support Title IX Deliberate Indifference Claim

December 23, 2019 | by Blair & Kim, PLLC

The Sixth Circuit recently weighed in on a circuit split involving a school’s liability for its response to sexual harassment. While this does not directly affect Washington Title IX cases, it shows the contrasting interpretations of Title IX throughout the country. Four female students filed suit against a University, alleging that its response to their reports of sexual assault was inadequate and caused physical and emotional injuries, resulting in a denial of educational opportunities. The defendants moved to dismiss, and ultimately all but four claims were either withdrawn or dismissed. The remaining claims were Title IX claims and an equal protection claim under § 1983.

The Sixth Circuit granted the defendants’ motion for an interlocutory appeal to address the question of whether there must be additional acts of discrimination to support deliberate indifference to peer-on-peer harassment under Title IX. In evaluating a Title IX private cause of action against a school, courts use the test set forth in Davis v. Monroe County Board of Education. The Sixth Circuit noted that Davis requires the school’s actual knowledge of actionable sexual harassment and a deliberate indifference to that harassment that results in additional actionable harassment. Under Davis, harassment must be severe, persuasive, and objectively offensive to be actionable.

The plaintiff must then prove the elements of deliberate indifference. The plaintiff must show that the school had actual knowledge of actionable sexual harassment. The plaintiff must show that there was an act, meaning an unreasonable response in light of the circumstances. There must be an injury, meaning that the plaintiff was deprived of access to educational opportunities or school benefits. The plaintiff must also show that the defendant’s act caused the injury. The Sixth Circuit noted that the Davis case requires the plaintiff to show that the defendant’s deliberate indifference subjected students to further actionable harassment. The plaintiff must show both that the response was unreasonable and that it led to further harassment.

Wrongful Denial of PIP Benefits Can Give Rise to Washington Consumer Protection Act Claim

December 16, 2019 | by Blair & Kim, PLLC

Unfortunately, in some cases, a Washington car accident victim’s biggest adversary may be his or her own insurance company. Washington automobile insurers must offer personal injury protection (PIP) coverage to their policyholders. PIP provides no-fault coverage for the insured’s medical expenses arising from an automobile accident. Insurers must conduct a reasonable investigation before they deny claims. Additionally, Washington law provides that it is an unfair practice for a PIP carrier to deny benefits for reasons other than medical bills that are not reasonable, necessary, related to the accident, or incurred within three years of the accident. Sadly, it is not uncommon for an insurer to wrongfully deny the claims of its own insured.

In a recent case, the plaintiffs pursued class actions in federal court against their insurers, including claims under the Consumer Protection Act (CPA) for wrongfully denying their PIP benefits. One plaintiff alleged that the insurer refused to pay medical bills if a computerized review determined that the bill exceeded a predetermined amount. The plaintiff alleged that the insurer failed to investigate or make an individualized assessment of the charges before denying them. The plaintiff argued that this practice constituted unfair practices under Washington insurance law. WAC 284-30-330 and WAC 284-30-395. She further argued that the practice resulted in a routine failure to pay reasonable medical expenses in violation of Washington insurance law.

The second plaintiff argued that his insurer terminated PIP benefits once an insured reached Maximum Medical Improvement, which he alleged was an unfair practice under WAC 284-30-395. He argued that this practice resulted in the routine failure to pay reasonable medical expenses in violation of RCW 48.22.005.

Washington Court Can’t Impose Discretionary Cost on Indigent Defendant

December 9, 2019 | by Blair & Kim, PLLC

Over the past several years, there has been increasing focus on how the imposition of fees and costs on criminal defendants can disproportionately affect poor and disadvantaged individuals. Washington drew national attention for the way its courts imposed fees and costs on defendants, and particularly the 12% annual interest rate that was applicable to fees and costs. Last year, Washington passed an act to address some of the issues with the legal financial obligations for criminal defendants. The act eliminated interest for all legal financial obligations except restitution. Although Washington criminal courts may still require defendants to pay certain costs, a court may not order an indigent defendant to pay costs. Even if a defendant is not indigent, the court must still consider his or her financial resources and the burden payment of the costs will create in determining the amount of costs and the method of payment. (RCW 10.01.160.) A defendant is indigent if he or she receives certain types of public assistance, is involuntarily committed, or has an annual net income of 125% or less of the federal poverty level. (RCW 10.101.010.) Additionally, under the new act, a court can no longer sanction a defendant with contempt based on a failure to pay unless it finds the defendant’s failure to pay is willful. A willful failure to pay occurs when the defendant has the ability to pay but refuses to do so. The law identifies the factors the court must consider in determining if the defendant has the current ability to pay. (RCW 10.01.180.)

An indigent defendant recently challenged community supervision costs that were imposed upon him by the trial court. After the defendant pleaded guilty to first degree assault and second degree robbery, the trial court waived all non-mandatory fees and costs and stated the defendant did not have financial resources. The judgment and sentence, however, required the defendant to pay supervision fees.

The defendant appealed, arguing the community supervision fee was a non-mandatory cost that should not have been imposed by the trial court in light of his indigence.

Washington Court Did Not Consider Teen Brain Development in Assessing Criminal Culpability

November 27, 2019 | by Blair & Kim, PLLC

Teenagers sometimes act impulsively, and, unfortunately, if someone gets hurt as a result of those impulsive actions, it could result in Washington criminal charges. In a recent case, a juvenile defendant challenged his conviction, arguing in part the court should have considered adolescent brain development and maturity in assessing his culpability for assault.

According to the appeals court’s opinion, three friends were in eighth grade at the same middle school. The court used pseudonyms for all of the boys: Timothy Martin, Andrew Christopher, and Bob Simpson. While Christopher was sitting on a desk talking to Simpson one day, Martin came up from behind and put Christopher into a choke hold.

Martin said it was a professional wrestling choke hold that he had seen during professional wrestling matches. He knew it could stop a person’s breathing and cause them to become unconscious. Martin said he wanted to show the choke hold to Simpson and did not mean to interrupt Christopher’s air or blood flow.

First Circuit: Student Is Not Entitled to Cross-Examination in Disciplinary Proceedings

November 20, 2019 | by Blair & Kim, PLLC

In the past few years, students have been challenging the procedures used by colleges and universities in disciplinary proceedings related to Title IX. As schools have become more proactive in addressing sexual harassment and sexual assault, ongoing issues regarding the required due process for related disciplinary proceedings have arisen. Schools sometimes suspend or expel students without giving students fair notice and an opportunity to be heard.

A case in the First Circuit recently held due process does not require an accused student be allowed to cross-examine his accuser. The student had been accused of assault by another student, who was his girlfriend at the time. The university suspended him for five months and ultimately expelled him. He filed suit against the university. The district court entered summary judgment in favor of the defendants, and the plaintiff appealed to the Ninth Circuit.

A student in a state educational institution has a property interest in their “legitimate entitlement to a public education. . .” That interest is protected by the Due Process Clause and therefore cannot be taken away for misconduct unless procedures required by the Due Process Clause are followed. The essential requirements of due process are “notice and an opportunity to be heard.” For school disciplinary action, this generally requires a hearing.

Washington Appeals Court Enforces Arbitration Provision in Divorce Agreement

November 13, 2019 | by Blair & Kim, PLLC

When a couple reaches an agreement regarding their divorce, it is not uncommon to agree that any disputes regarding the agreement are subject to arbitration. Generally, Washington law favors arbitration. In a recent case, however, a husband challenged a court’s decision not to refer a matter to arbitration.

The couple established a business during their marriage. The husband ran the business and the wife raised their children. The husband had developed a gambling compulsion and lost $185,000 in the year before the divorce.

The wife filed for divorce and asked for a restraining order keeping the husband from conducting the business’s finances. The court granted the wife full authority to run the business “in a fiscally responsible manner.”

Washington Supreme Court Holds Impound Statute Unconstitutional

November 9, 2019 | by Blair & Kim, PLLC

The Washington State Constitution recognizes a privacy right and prohibits disturbance of that privacy without authority of law. When a driver is arrested for driving under the influence, the vehicle must be impounded pursuant to RCW 46.55.360. A defendant recently challenged the impound statute as a violation of the Washington State Constitution.

The defendant was stopped for speeding. According to the court opinion, the officer smelled alcohol on the defendant’s breath. The defendant declined a field sobriety test and the officer arrested him for suspicion of driving while under the influence of intoxicants. The officer impounded the defendant’s jeep without considering any reasonable alternatives.

The officer performed an inventory search of the vehicle and found items he believed were associated with drug dealing. Cocaine was found on the defendant in a search incident to arrest. The defendant was charged with DUI and possession with intent to deliver controlled substances.

Washington Court Does Not Have to Restore Firearm Rights Upon Vacating Juvenile Deferred Disposition

October 30, 2019 | by Blair & Kim, PLLC

Washington law prohibits possession of a firearm by a person, including a juvenile, who has been convicted of a serious offense. Washington law allows a person to petition the court for restoration of the right to possess a firearm in certain circumstances. It is not uncommon for a Washington criminal defendant to challenge the loss of firearms rights or the denial of restoration of those rights. In a recent case, a defendant challenged a court’s denial of his restoration petition.

The seventeen-year-old defendant admitted to second degree malicious mischief based on intentional damage to a vehicle. The juvenile court found him solely responsible for the damage and he pleaded guilty in exchange for deferred disposition. As part of the terms of the deferred disposition, he lost the right to possess a firearm.

The juvenile court ultimately ordered the defendant to pay the estimated cost of repair in restitution as a condition of disposition. The court subsequently dismissed the deferred disposition and vacated the conviction, but indicated it would not seal the case until restitution was made.

Washington Tenant Found Not Liable for Fall on Stairs in the Common Area

October 22, 2019 | by Blair & Kim, PLLC

When a person slips and falls in an office building, it is important to ascertain who may be liable. Multiple tenants, a property management company, building owners, and even some vendors contracted to do certain work may have some responsibility. Liability may depend in part on the leases, contracts, and business arrangements among the potential defendants. In a recent case, a plaintiff challenged summary judgment in favor of two defendants.

The plaintiff slipped and fell down some stairs outside her acupuncturist’s office. The acupuncturist’s office was in a rented room on the second floor of a house with multiple tenants. The written lease was expired, and named just one tenant. The named tenant had moved out, and one of the other tenants collected rent from the others.

The patient sued the acupuncturist, the named tenant, the building’s owners, and other defendants for damages related to her injuries from the fall. The trial court found the acupuncturist and the named tenant did not owe the plaintiff a duty of care with respect to the stairs in the common area. The court granted summary judgment in favor of those defendants. The plaintiff appealed.

THE NEW HOPE ACT: Changing the Eligibility Requirements for Vacating Criminal Convictions

October 15, 2019 | by Blair & Kim, PLLC

Washington State has long allowed adults with criminal convictions to vacate convictions from their record. However, the previous eligibility requirements severely limited the ability to vacate certain convictions and the number of convictions eligible to be vacated.

In April of 2019, the Washington State legislature passed the New Hope Act, a law that changes the requirements for vacating criminal convictions in Washington state. Effective July 28, 2019, the New Hope Act eliminates many of the previous barriers to vacating misdemeanor and felony convictions, making more people eligible to vacate their criminal conviction. The New Hope Act broadens the ability to vacate convictions by:

Allowing additional felony convictions to be vacated;