Seattle Attorneys Blog

Washington Appeals Court Overturns Conviction Based on Warrantless Search

October 15, 2019 | by Blair & Kim, PLLC

In a Washington criminal case, a warrantless search will be found to be unreasonable unless the state shows that a warrant exception applies. In a recent case, a defendant challenged her conviction based on evidence found during a warrantless search.

According to the court’s opinion, a police officer responding to a trespass report saw a woman and man sitting in a field that was posted with “no trespass signs.” After identifying himself, the officer saw the pair moving some objects on the ground. After getting their identification, he learned the woman had an active Department of Corrections warrant. He saw a pink backpack sitting behind the woman. He asked if it was hers, and she indicated it was.

The officer arrested the woman based on the active warrant. He offered to take the backpack, but she indicated she wanted the man to take it with him. The officer told the man the woman’s personal property would be searched incident to arrest and that it would stay with her. He asked the man to leave.

Washington Appeals Court Upholds Spousal Maintenance Award to Repay Debt

October 7, 2019 | by Blair & Kim, PLLC

Courts in Washington divorce cases must make an equitable and just distribution of the couple’s property and liabilities. In some cases where one spouse owes the other, spousal maintenance or alimony may be used to achieve an equitable and just distribution. In a recent case, a husband challenged the award of spousal maintenance to pay off his share of the community debt.

The evidence showed the wife had a home worth about $500,000 with a mortgage and about $400,000 in other assets at the time of the marriage. A prenuptial agreement provided that the husband had no interest in the home. The husband had a checking account with a small balance and a vehicle. He also had an interest in a limited liability company he established and shares of another company, with values listed as “unknown.” He owed $8,000 on the vehicle, $36,000 in back taxes, and $55,000 on a promissory note to the wife. The wife’s assets were depleted during the marriage and the couple accrued significant community debt in the wife’s name.

In accordance with the prenuptial agreement, the trial court awarded the home to the wife. It also ordered the husband to repay the promissory note. The trial court found a BMW in the wife’s name was community property. In her petition, the wife listed the vehicle and the debt on it as property to be awarded to the husband. She ultimately changed that position, partly because the husband had not obtained separate financing. The trial court awarded the vehicle to the wife, noting the husband had surrendered his driver’s license and therefore would not be allowed to drive for a significant while.

Washington Underinsured Motorist Insurer Does Not Have to Turn Over Litigation Materials in Bad Faith Case

September 27, 2019 | by Blair & Kim, PLLC

Following a Washington automobile accident, a seriously injured person may have to deal with various insurance companies. Although dealing with an insurance company can be difficult, insurers are prohibited from acting in bad faith or engaging in unfair practices. If the insurer does act improperly, the claimant may be able to pursue an insurance bad faith claim. In a bad faith case, the insurer’s files may be important evidence.

In a recent case, the plaintiff sought documents and information created during litigation of the bad faith case. The plaintiff was injured in an automobile accident with a drunk driver. After settling for policy limits with the at-fault driver’s insurance, she filed an underinsured motorist claim. According to the appeals court’s opinion, the underinsured motorist policy limit was $50,000. The insurer offered $2,500. The plaintiff demanded $100,000. She ultimately filed suit against the insurance company for unfair claims settlement practices and bad faith. She alleged her damages “far exceeded” the policy limits.

In response to discovery requests, the plaintiff denied the damages payable by the insurer exceeded $75,000, which is the threshold amount in controversy for a case to be removed to federal court on diversity jurisdiction. She responded to a question regarding whether she sought trebling or any multiplier of damages affirmatively. She also stated she intended to seek punitive damages if there was a determination the insurer violated the Insurance Fair Conduct Act. She acknowledged the amount in controversy could exceed the $75,000 threshold, but offered to stipulate that the amount in controversy did not exceed that $75,000. The parties never reached agreement on the language for the stipulation. The insurer informed the plaintiff it would seek removal if the plaintiff did not sign the stipulation.

Washington Court Allows Evidence Found in Search Following “Terry Stop”

September 20, 2019 | by Blair & Kim, PLLC

Generally, warrantless seizures are unconstitutional unless an exception applies. One such exception is a Terry stop. A defendant recently challenged evidence found in a search after what the state agreed was a Terry stop in a Washington criminal case.

A sheriff deputy was dispatched after a 911 call reporting an unwanted person in the caller’s home. The caller told the dispatcher the woman’s first name and said he had previously allowed her to stay there, but she was not welcome any more. He reported she had left, but then said she came back. He also said she had previously climbed in through a window to get inside. He did not indicate she was violent.

The deputy saw a woman matching the description the caller gave walking about two-tenths of a mile from the caller’s home. He stopped, and when he asked, the woman indicated her first name was the name given by the caller. The deputy asked her for identification, but she indicated she did not have any. She provided her name and birth date. The woman stayed in front of his car and its headlights while the deputy searched her name in his computer. The deputy confirmed she had an outstanding warrant. He arrested her and found a white powdery substance in a baggie in her pocket. The substance was found to be methamphetamine.

Characterization of Disability Allowance in Washington Divorce

September 13, 2019 | by Blair & Kim, PLLC

In a Washington divorce case, a disability allowance is treated differently depending on whether it replaces future lost wages or a standard retirement pension. This distinction will determine if the allowance is considered separate or community property. In a recent case, an ex-wife challenged the characterization of her ex-husband’s disability allowance.

The ex-husband began working for a fire department in 1963. The couple married in 1991. The ex-husband was injured on the job and determined to be physically unable to perform his job duties. He began receiving a monthly allowance of about 60% of his salary.

The ex-husband brought most of the assets to the marriage, but the couple signed a community property agreement that purported to transfer all separate property to community property.

Washington Prosecutor Does Not Have to Stipulate No-Contact Order

September 6, 2019 | by Blair & Kim, PLLC

In a Washington felony violation of a no-contact order case, the prosecution must prove the existence of the no-contact order and the defendant’s knowledge of it. For a variety of reasons, the defense may not want the jury to see the no-contact order. A recent issue in Washington has been whether a defendant can keep a no-contact order out of evidence by stipulating to its existence and his or her knowledge of it. The Washington Supreme Court recently addressed this issue.

A court entered a domestic violence no-contact order prohibiting the defendant from contacting his girlfriend after he was convicted of a domestic violence offense. Finding the defendant was a “credible threat to [her] physical safety,” the court ordered the defendant not to come within 1000 feet of her residence.

Nevertheless, the couple lived together. According to the Washington Supreme Court’s opinion, a neighbor witnessed them having a verbal altercation outside their home. The girlfriend told the neighbor the defendant had hit her and asked them to call 911. The girlfriend told law enforcement the defendant struck her head and face repeatedly and law enforcement observed bruising and other injuries.

Washington Court Finds Bicyclist Was Not a Pedestrian Under His Insurance Policy

September 4, 2019 | by Blair & Kim, PLLC

In a Washington automobile accident, an injured person may have some coverage through his or her own insurance policy. This first party coverage may include personal injury protection (PIP), which includes medical expenses and lost wages. When filing a claim against your own insurer, the terms of the policy, including the definitions, are critical in determining whether coverage applies.

In a recent case, an injured man challenged his insurer’s denial of his PIP claim. According to the court’s opinion, a driver parked on the street opened his door and struck the plaintiff, who was riding his bicycle. The plaintiff was covered by a California insurance policy with up to $5,000 in medical expenses for an “insured” under the PIP benefit. The relevant language in the definition of “insured” was “a pedestrian when struck by” a motor vehicle. The policy did not define “pedestrian.”

The insurer denied the plaintiff’s claim on the grounds he was not a pedestrian because he was riding his bicycle when the accident occurred. The plaintiff sued the insurer. The trial court granted summary judgment in favor of the insurer, finding the term “pedestrian,” under its ordinary and common meaning, does not include a person riding a bicycle. The plaintiff appealed.

Washington Appeals Court Overturns Juvenile Offender’s Sentence

August 22, 2019 | by Blair & Kim, PLLC

In some ways, Washington juvenile offenders may be treated differently than they would be if they were adult offenders. Both the Washington Supreme Court and the U.S. Supreme Court have acknowledged that “children are different.”

In a recent case, a juvenile defendant challenged her sentence. She was a first-time offender. She did not meet the conditions of her deferred disposition, so it was revoked. The juvenile court found the standard sentencing range would be insufficient and entered a manifest injustice disposition and imposed 24 to 32 weeks total incarceration.

The defendant appealed and the appeals court granted expedited status. However, according to the appeals court’s opinion, its review was “compromised by the transgressions of the prosecutor.” The appeals court noted the prosecutor had not timely obtained findings of fact and conclusions of law. When the prosecutor did obtain the findings and conclusions after being ordered to do so by the clerk of court, they did so in an ex parte proceeding without giving notice to the defendant or her attorney. The defendant raised the issue and included it in her brief. The prosecutor did not directly address the issue in its brief, but instead referenced a different pleading.

Weapons Surrender in Washington Domestic Violence Protection Order

August 15, 2019 | by Blair & Kim, PLLC

In certain circumstances, Washington courts ordering domestic violence protection orders must also order the restrained person to surrender his or her firearms, other dangerous weapons, and concealed pistol licenses (CPL). RCW 9.41.800. There is a standard order that courts may use. The standard order requires the restrained person to immediately surrender the weapons and CPL, get a receipt for the items surrendered, complete a proof of surrender form, and file all of the documents within five days.

In one case, a wife questioned whether the husband had truly surrendered all of his firearms after being ordered to do so. After separating from her husband and moving to Washington, the wife sought a domestic violence protection order, alleging, in part, he had threatened to shoot her. The commissioner issued the order, but found a lack of personal jurisdiction over the husband prevented her from ordering a weapons surrender.

The wife moved for revision of the order. At the hearing, the husband said no firearms were in his possession because his relatives had them. He requested a continuance. The court granted the continuance, but entered a temporary order requiring him to turn over his weapons and any CPL. The husband subsequently filed a proof of surrender form with a receipt from the sheriff’s office showing he had surrendered three guns.

Child Must Make Academic Records Available to Parents to Receive Washington Post-Secondary Support

August 8, 2019 | by Blair & Kim, PLLC

In a Washington child support case, the court may order the payment of post-secondary educational support for a dependent child. The support is conditioned on the child enrolling in an accredited academic or vocational school, pursuing education in line with his or her vocational goals, and remaining in good academic standing. If these conditions are not met, the support is suspended. Additionally, the child must make his or her academic records available to both parents.

A mother recently challenged an order for past due post-secondary support, arguing her daughter had not complied with the statutory requirements. The court had entered a child support order regarding post-secondary support of the parties’ daughter that required the mother to pay 66.3 percent of the child’s post-secondary education support. To receive the support, the daughter had to meet the requirements of RCW 26.19.090(4), which requires the child to make all grades and academic records available to both parents as a condition of receiving the support.

The father moved for contempt for past due post-secondary support in 2017. He submitted proof of expenses and enrollment records. The mother said she called to pay tuition, but the Registrar’s Office informed her they could not give her access to any information due to the Family Educational Rights and Privacy Act (FERPA). They told her students were told they must grant access for anyone else to have access to their account.