Seattle Attorneys Blog

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 She did not meet the conditions of her deferred disposition, so it was revoked.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.

Washington Court Must Consider Factors and Make Findings on Income to Order Spousal Maintenance

July 29, 2019 | by Blair & Kim, PLLC

Even when the parties to a Washington divorce agree that one spouse should pay spousal maintenance to the other, they may not agree to the amount or duration of that maintenance. In making determinations regarding maintenance, courts should consider certain factors and make specific findings. A husband successfully challenged the amount and duration of maintenance he was ordered to pay his former wife because the court had filed to fully address the required factors and make findings regarding the parties’ income.

The couple married in 1987. The wife stayed home and cared for the children. The husband retired from the Marine Corps at the age of 43 in 2006 and began working as a truck driver. The couple separated in 2012 and the husband filed for divorce in 2015. He agreed he would pay maintenance to the wife.

On a monthly basis, the husband received wages, significant overtime earnings, military disability, and military retirement. In addition to his military retirement, the husband had a retirement account with his current employer and a 401k. He claimed $3,995 in monthly expenses. The wife declared she had no income and $3,566 in expenses each month.

Washington Supreme Court Finds Second Collision Is Not Superseding Cause in Vehicular Homicide Case

July 22, 2019 | by Blair & Kim, PLLC

To convict a defendant of vehicular homicide in a Washington criminal case, the state must prove that the defendant’s conduct was the proximate cause of the victim’s death. In Washington law, the term “proximate cause” includes both actual cause and legal cause. In a recent case, a defendant challenged his vehicular homicide conviction, alleging that there was an intervening superseding cause of the victim’s death.

According to the court’s opinion, the defendant was intoxicated when he rear-ended a vehicle at 85 m.p.h. The defendant did not stop to assist the other driver, whose vehicle was disabled across the left and middle lanes.

A witness to the collision stopped to help. The Good Samaritan pulled onto the right shoulder and engaged his flashers. He crossed the freeway to help the driver and was on the phone with the 911 dispatchers when another vehicle struck the disabled vehicle. The impact caused the disabled vehicle to strike the Good Samaritan, causing injuries that resulted in his death 12 days later.

Renewal of a Washington Civil Protection Order

July 15, 2019 | by Blair & Kim, PLLC

It is common for a person with a Washington temporary protection order to seek renewal before the order expires. If a victim petitions for renewal, the court must order a hearing. The burden is on the respondent to show by a preponderance of the evidence that he or she will not commit acts of domestic violence against the petitioner or the petitioner’s family or household members if the order ends. If the respondent fails to meet this burden, then the court will grant the renewal.

A Washington appeals court recently reviewed the renewal of a protection order against the petitioner’s brother. The sister sought a temporary protection order against her estranged brother in 2017. She alleged he made threats against her through her mother and other brother. She also alleged he was emotionally unstable and had firearms. The court granted a protection order for one year. During the year, they had some indirect contact through other family members.

The sister petitioned for renewal shortly before the order expired. She alleged her brother threatened to come to her home after the order expired. Both parties testified at the hearing. The evidence included voice mail transcripts and a letter from another brother.

Washington School Searches Must Be Reasonable

June 27, 2019 | by Blair & Kim, PLLC

Generally, unless there is an applicable exception, both the Washington and U.S. constitutions require a warrant supported by probable cause before someone acting on behalf of the government can conduct a search. One exception to the warrant requirement applies to school officials. Under the school search exception, a school official may conduct a reasonable search of a student. This does not mean a school can search any student at any time for any reason—the search must be reasonable. Washington criminal courts use the “McKinnon Factors” to determine if a school search was reasonable.

A defendant challenged her conviction on the grounds the search was unlawful. According to the appeals court opinion, the school received information about a threat involving the juvenile defendant, who was not a student of that school. Staff looked her up in the school district’s system so they could identify her. When the vice principal saw her, he asked her to come into the office.

In the office, the principal asked the defendant why she was there. After a few minutes, the principal determined she was uncooperative and told her they were calling the police. The vice principal testified the defendant would have been allowed to leave if she had chosen to do so. He also testified they did not have the authority to discipline her since she was not a student at their school.

Washington Strict Liability Dog Bite Law Only Applies When There Is a Dog Bite

June 20, 2019 | by Blair & Kim, PLLC

A dog owner is generally strictly liable for injuries resulting from a Washington dog bite if the person who was bitten was in a public place or lawfully in a private place, including the dog owner’s property. This strict liability statute applies only when the dog bites a person. Where there is no dog bite, strict liability does not apply.

A woman recently appealed a jury verdict against her in an alleged dog bite case. The plaintiff filed suit against the defendant and his mother-in-law alleging one of the defendant’s dogs bit her during an altercation between her dog and the defendant’s dogs. The defendant’s dogs were in his mother-in-law’s care at the time of the incident, but the mother-in-law settled with the plaintiff prior to trial. The plaintiff alleged the defendant was strictly liable for her injuries as the dog’s owner pursuant to RCW 16.08.040. Under RCW 16.08.040, a dog owner is liable for injuries resulting from his or her dog biting a person who is in a public place or lawfully in a private place.

The jury responded “no” on the special verdict form asking if one of the defendant’s dogs bit the plaintiff. The plaintiff appealed, arguing the jury instructions were erroneous. The appeals court, found, however, that the plaintiff had not preserved the issues regarding the jury instructions for appeal and therefore did not address them.

Washington Appeals Court Reverses Conviction Based on Admission of Prejudicial Calls

June 13, 2019 | by Blair & Kim, PLLC

Challenging irrelevant or prejudicial evidence is often a significant part of defense in a Washington state criminal case. Evidence of prior bad acts by the defendant is not admissible to show the defendant’s propensity to commit the charged crime, but may be admissible for other purposes, such as showing intent or motive. Even if there is an allowable reason to admit evidence of a prior bad act, it must be excluded if the risk of unfair prejudice substantially outweighs its probative value.

A defendant successfully challenged his conviction after a trial court allowed evidence of an alleged assault on his girlfriend that occurred prior to the events leading to the charges. His girlfriend called 911 and reported being assaulted by the defendant. She said he was intoxicated and had punched her. There were then sounds of her screaming and repeatedly saying “Stop” on the recording. There were also what the appeals court referred to as “hitting sounds.” Someone else then told the operator that the girlfriend looked to be “hurt quite badly” and provided a description of the defendant and his vehicle. The girlfriend provided the defendant’s name and said he had beaten her.

According to the appeals court opinion, the defendant later wrecked his truck. A woman subsequently found the defendant coming up her basement stairs. He told her he was hiding from the police because he had been abused and framed by his girlfriend. The woman ultimately called 911. Law enforcement found a large knife belonging to the woman in the defendant’s waistband when they arrested him.