NINTH CIRCUIT COURT OF APPEALS | WASHINGTON STATE SUPREME COURT | WASHINGTON STATE COURT OF APPEALS | AMICUS CURIAE BRIEFS   Crockett v. Shields, et al., 534 U.S. 1128 (2002) (denying review of unreported 9th Circuit Decision). ( F. Ross Burgess for Pierce County)  Burgess Fitzer successfully argued that the district court did not err in refusing to allow plaintiff to add Pierce County as a defendant.  The Sheriff of Pierce, who made the termination decision in this case, was not the final policymaker with respect to personnel administration within the ; the civil service commission has that authority. The , therefore, was not liable under § 1983 as a matter of law.  Back to top   Erickson v. Pierce County, 960 F.2d 801 (9th Cir. 1992), cert. denied, 506 U.S. 1035 (1992) ( F. Ross Burgess, Timothy R. Gosselin, John T. Kugler for Pierce County)  Erickson brought an action against Pierce County and her supervisor alleging a claim for wrongful termination of her employment. Plaintiff filed suit under 42 U.S.C. § 1983 and also claimed a violation of her constitutional rights under the First Amendment, asserting that her discharge was because of her political support for her former supervisor (whom her supervisor had defeated in the election).  The district court dismissed the due process claim on summary judgment, but permitted the First Amendment claim to go to the jury, which reached a $75,000 verdict and an award of $110,000 in attorney fees.  Plaintiff appealed the summary judgment on her due process claim and Pierce County appealed the jury verdict.  The issues on appeal were (1) whether the jury verdict in favor of plaintiff was supported by substantial evidence, and (2) whether the district court erred by dismissing plaintiff’s due process claim.  Burgess Fitzer successfully argued before the 9th Circuit Court of Appeals on behalf of the employer that: (1) the evidence was insufficient to establish that the employee’s discharge was for her political conduct; and (2) the statement of employee's supervisor did not violate a protected liberty interest in violation of due process.  The 9th Circuit remanded for entry of judgment in favor of the for both issues.  Back to top   Johnson v. Barker, 799 F.2d 1396 (9th Cir. 1986) ( F. Ross Burgess for Skamania County, Skamania County Deputy Sheriff and County Officials)  Following the May 18, 1980, Mt. St. Helens volcanic eruption, appellants were members of a film crew making a film about the volcano. On May 23, 1980, appellants entered the Mt. St. Helens area and began hiking toward the top to complete their filmmaking endeavors.  After completing their filming, appellants began hiking back down the mountain. At approximately 2:00 p.m., a helicopter carrying a County Deputy Sheriff landed near appellants. The Sheriff issued citations to appellants and refused appellants' request to fly them off the mountain. Appellants alleged that the Sheriff forced appellants to change their route down the mountain. Appellants claim that as a result of the new route, which was the longer route they had used to go up the mountain the previous day, they were forced to spend another night on the mountain. During that night, Mt. St. Helens erupted again, raining ash and mud upon appellants. Unable to hike the rest of the way off the mountain, appellants eventually had to be rescued by helicopter.  Burgess Fitzer successfully argued before the 9th Circuit Court of Appeals on behalf of the Sheriff, the county and its officials.  The Court of Appeals, held that: (1) statements made by Sheriff and prosecutor to press, even if defamatory, failed to rise to the level of constitutional tort, as required for section 1983 action; (2) circumstances wherein deputy Sheriff landed his helicopter, approached plaintiffs, issued citations and departed was not tantamount to arrest, as required to support claim of false arrest; (3) claims of abuse of process and malicious prosecution did not rise to denial of substantive or procedural due process; and (4) due process clause was not implicated by negligent failure to rescue.  Back to top    Eggleston v. Pierce County, 148 Wn.2d 760 (2003) ( John T. Kugler for Pierce County)  Homeowner filed action against county, asserting that she had suffered a compensable takings under the state constitution based on the execution of criminal search warrant and preservation order that rendered her home uninhabitable. The Superior Court granted summary judgment in favor of the county.  Burgess Fitzer successfully argued on behalf of the county that the eminent domain provision of the state constitution does not require compensation to be paid for seizure and preservation of evidence or for destruction of property by police activity.  Back to top   Leingang v. Pierce County Medical, 131 Wn.2d 133 (1997) ( Timothy R. Gosselin for Pierce County Medical) A health care service contractor appealed a trial court's grant of summary judgment in favor of one of its insureds on a Consumer Protection Act cause of action.  Burgess Fitzer successfully argued that there was no evidence of an unfair or deceptive act on the part of Pierce County Medical and, thus, the order of summary judgment was proper for this and the remaining causes of action.    Back to top   Reid v. Pierce County, 136 Wn.2d 195 (1998) ( F. Ross Burgess for Pierce County) The relatives of decedents sued Pierce County, asserting claims including negligent infliction of emotional distress, outrage, and common law invasion of privacy based on allegations that county employees had appropriated and displayed photographs of decedents' corpses. For the stated causes of action, the Superior Court either granted summary judgment for the county or dismissed the action for failure to state a claim.  The Washington Supreme Court decided whether the plaintiffs could maintain a cause of action against Pierce County and its employees for appropriating and displaying to others photographs of corpses of the plaintiffs' deceased relatives. The plaintiffs alleged negligent infliction of emotional distress, tort of outrage, violation of their rights of privacy guaranteed by the state constitution, and common law invasion of privacy.  Burgess Fitzer successfully argued on behalf of Pierce County that relatives could not recover on outrage and negligent infliction of emotional distress claims because they were not present at the time of alleged tortious conduct.  Back to top   Dayton v. Farmers Insurance Group, 124 Wn.2d 277 (1994) ( Timothy R. Gosselin for Farmers Insurance Group) Following an uninsured/underinsured motorist (UIM) panel arbitration, the arbitration panel awarded plaintiff $19,000 in damages, in addition to the medical bills Farmers Insurance had already paid under the PIP coverage. The panel also awarded costs and arbitrators' fees.  Plaintiff filed a petition in superior court seeking entry of judgment. In the petition the plaintiff requested attorney fees.  In the action to confirm the arbitration award, the trial court awarded attorney fees pursuant to Olympic S.S. Co. v. Centennial Ins. Co., 117 Wn.2d 37, 811 P.2d 673 (1991). Farmers appealed the attorney’s fees award and sought review on the issue of whether attorney fees are recoverable in a UIM arbitration to determine damages.  Burgess Fitzer successfully argued that the superior court exceeded its authority in awarding attorney fees, which are not recoverable under Olympic Steamship in UIM arbitrations.  Accordingly, the Washington Supreme Court held that: (1) a Superior Court's award of attorney fees failed to meet statutory criteria for correction or modification of award and exceeded court's authority, and (2) insured could not recover attorney fees in uninsured motorist arbitration, involving dispute over value of claim.  Back to top   Rivet v. City of Tacoma, 123 Wn.2d 573 (1994) ( Timothy R. Gosselin for individual property owners) Pedestrian brought action against city and property owners for injuries sustained when she tripped while walking on public sidewalk.  On appeal, the Washington Supreme Court considered the following issues: (1) whether a City of Tacoma ordinance, which purports to impose liability upon abutting private property owners for the condition of public sidewalks and purports to indemnify the City for any judgments arising out of negligent maintenance of public sidewalks, is constitutional; and (2) whether summary judgment was properly granted in favor of abutting private property owners in this action for personal injuries sustained by a third party from a negligently maintained public sidewalk. Burgess Fitzer successfully argued that the city ordinance that purported to impose liability upon abutting private property owners for condition of public sidewalks and purported to indemnify city for any judgments arising out of negligent maintenance of public sidewalks violated due process clause of State Constitution.  The Court reasoned, in part, that the Tacoma ordinance constituted an unreasonable exercise of the police power under substantive due process analysis because the indemnification requirement is "unduly oppressive."  The Supreme Court affirmed in favor of Burgess Fitzer’s clients and declared, the Tacoma ordinance unconstitutional.  Back to top   Hiatt v. Walker Chevrolet, 120 Wn.2d 57 (1992) ( Timothy R. Gosselin and Trial Lawyer John T. Kugler for Walker Chevrolet) The plaintiff filed a religious discrimination action in the superior court against his employer alleging violations of  state laws against discrimination, the federal civil rights act, Tacoma City ordinances, and the federal and state constitutions.  The Washington Supreme Court considered the following issues: (1) what is the correct legal standard to be applied in determining religious discrimination cases under federal and state law? and (2) do issues of fact exist which preclude summary judgment in this case? Burgess Fitzer successfully argued on behalf of the employer that the employee failed to show that the  motivational program in which he refused to participate based on religious reasons was a job requirement, thereby failing under the federal standard.  The Court agreed and reasoned, in part, that when viewed in a light most favorable to the nonmoving party, the evidence showed that the new age motivational program was purchased by the employer at the employee’s urging. The employer's use of the program was intended to promote increased car sales. Nearly all of the employees (including plaintiff) were enthusiastic about the program and wanted to participate, but the employer did not mandate participation in the training course or in the program. The plaintiff voluntarily attended the training course. Further, when the employee asked the employer to cancel participation in the program, it did so immediately.  The only reasonable conclusion to be drawn is that neither attendance at the training session nor implementation of the program were requirements of the employee’s employment.  Back to top   PUD NO. 1 v. Wallbrook Ins. Co., 115 Wn.2d 339 (1990) ( Timothy R. Gosselin for Petitioners) This case arose out of the complex Washington Public Power Supply System's (WPPSS) $2.25 billion bond default. On March 27, 1989, respondents Public Utility District 1 of Klickitat County, et al., (PUD) filed a complaint for declaratory judgment against Underwriters at Lloyd's London (Lloyd's) and International Insurance, et al., (International) to establish insurance coverage for liability arising from the WPPSS bond default.  PUD moved for summary judgment against Lloyd's and International seeking to establish the validity of assignments made to PUD under insurance policies issued by Lloyd's and International. Insurers moved for discretionary review after the Superior Court refused to honor an affidavit of prejudice filed in the declaratory judgment action brought to determine insurance liability for public utility bond default. After accepting certification, the Washington Supreme Court  held that: (1) affidavit of prejudice was timely and did not lead to strained or absurd result, and (2) order of substitution making insurers parties did not relate back to original date of filing so as to preclude insurers from filing affidavit of prejudice. The Supreme Court reasoned, in part,  that the history of RCW 4.12.050 reflected an accommodation between two important, and at times competing, interests: a party's right to one change of judge without inquiry and the orderly administration of justice. This history also reflects a decision to accord greater weight to the party's right to a change of judge. Literal compliance with the statute's prerequisites removes any discretion by the judge as to its application, with limited exceptions. In this regard, the Court held that Respondent affidavit of prejudice was timely and reversed the order of the trial court.  Back to top     Blackburn v. Safeco, 115 Wn.2d 82 (1990) ( F. Ross Burgess and Timothy R. Gosselin for Safeco) Passenger injured in one-car collision, after collecting limits of driver's liability policy, brought action for declaration as to his rights under underinsured motorist provisions of owner's policy.  Petitioners sought review of a decision of the Court of Appeals that reversed a trial court judgment in their favor. The issue was whether an exclusion in the underinsured motorist policy is valid, under Washington's UIM statute, in a 1-car accident when the claimant, a passenger, does not achieve full recovery under the vehicle driver's liability policy and did not recover under the vehicle owner's liability policy. The Washington Supreme Court re-examined Millers Cas. Ins. Co. v. Briggs, 100 Wn. 2d 1, 665 P.2d 891 (1983), and held that, as in Millers, the UIM insurance policy provision excluding covered autos under the policy's liability coverage from the definition of an underinsured motor vehicle is valid. Burgess Fitzer successfully argued on behalf of Safeco that the underinsured motorist provisions of owner's policy could, consistent with underinsured motorist coverage statute and public policy, exclude underinsured motorist coverage for "other insureds" injured in covered vehicle, who were precluded from recovering under liability provisions of policy because of exclusion.  Back to top   Hartley v. State of Washington, 103 Wn.2d 768 (1985) ( Timothy R. Gosselin for Pierce County) Personal injury and wrongful death action was brought against Pierce County and the State by husband and minor children of woman killed in collision with automobile driven by intoxicated person.  Burgess Fitzer argued that the County's action did not fall within the boundaries of legal causation, even assuming the validity of plaintiffs' factual allegations.  The individual’s drunk driving was the cause in fact and the legal cause of Mrs. Hartley's death. The failure of the government to revoke the intoxicated individual’s license was too remote and insubstantial to impose liability upon the County.  The Court further reasoned, in part, that nothing sets the intoxicated individual apart from the thousands of other offenders subject to license revocation under the act. Thus, the Washington Supreme Court held that the failure of Pierce County and State to revoke person's driver's license was too remote and insubstantial to impose liability for that person's drunk driving.  The Court further concluded that there was not sufficient legal causation to implicate the County and State as defendants; thus, their motion for summary judgment was properly granted.  Back to top   Bowman v. Two (Does), 104 Wn.2d 181 (1985) ( Timothy R. Gosselin for John Doe Two) Mother brought action for legal malpractice against attorney who represented her son on child's petition for alternative residential placement.  Respondent John Doe Two, an attorney practicing in Tacoma, was one of several defendants.  Mother appealed from the trial court's grant of a CR 12(b)(6) motion to dismiss John Doe Two from an action alleging professional negligence resulting in injuries both to the son and to the parent-child relationship.   The Supreme Court held that John Doe Two, who was hired by the child to represent child in an attempt to have the court place the child in a home other than his mother's, was not liable to child's mother for legal malpractice.  Burgess Fitzer successfully argued many reasons why the trial court ruling was correct. Mrs. Bowman had no contractual relationship with respondent.  Although it was argued that harm to Donna Bowman was foreseeable by respondent’s representation of her son, in no instance has a court found liability to a third party in an adversarial relationship and there was no policy reason for extending that liability.  As such, dismissal of respondent from the complaint was proper. Back to top    Amazon.com v. American Dynasty Surplus Lines Ins. Co., 120 Wn. App. 610 (2004) ( Timothy R. Gosselin co-counsel for Atlantic Mutual Insurance Company) In a lawsuit against Amazon.com, a software manufacturer alleged that Amazon infringed upon its patents by misappropriating its software for use on Amazon's website to market goods for sale to the public. Following the original lawsuit for patent infringement against Amazon, Amazon tendered its defense to two insurers: Atlantic Mutual Insurance Company, its commercial general liability carrier; and American Dynasty Surplus Lines Insurance Company, an excess carrier.  The Atlantic Mutual policy did not expressly cover patent infringement, but did cover advertising injury. The American Dynasty policy covered patent infringement, but only as excess coverage.  Both insurers refused to defend. Amazon initiated a declaratory judgment action against American Dynasty. The parties settled. American Dynasty reimbursed Amazon for its costs in the litigation, and Amazon assigned its rights against Atlantic Mutual to American Dynasty. American Dynasty then brought this action, alleging that Atlantic Mutual should have provided a defense because the underlying allegations amounted to an advertising injury.  Both parties sought summary judgment. The trial court granted summary judgment for Atlantic Mutual. American Dynasty appealed. The Court held that because the allegations conceivably amounted to an advertising injury covered by Amazon's policy with Atlantic Mutual Insurance Company, Atlantic Mutual had a duty to defend.  Back to top   Northwest Prosthetic v. Centennial Ins. Co., 100 Wn. App. 546 (2000) ( Timothy R. Gosselin for Centennial Ins. Co.) Business liability insurer denied coverage for defamation claim that insured had settled based on insured's violation of notice, cooperation and consent to settle clauses of policy. Insured sued for coverage. The Court of Appeals held that insured's settlement of debatable defamation claim before insurer had any opportunity to investigate resulted in actual prejudice as matter of law that supported denial of coverage on basis of insured's breach of policy provisions. The Court of Appeals reasoned, in part, that an insured's breach of insurance policy provisions will not result in denial of coverage unless the breach caused actual prejudice. In this case, Burgess Fitzer successfully argued on behalf of Centennial Ins. Co. that the insured settled a debatable defamation claim before the insurer had a meaningful opportunity to investigate it. The Court of Appeals affirmed summary judgment excusing the insurer from its obligation to provide coverage because the loss of the opportunity to investigate amounted to actual prejudice.  Back to top   Betty Y. v. Al-Hellou, 98 Wn. App. 146 (1999) ( Timothy R. Gosselin for Housing Authority of Thurston County and Gibson & Wise Investments, Inc.) Guardian of 14-year-old child who was sexually assaulted by manual laborer he met while laborer was working on apartment renovation project sued developer who employed laborer, due to developer's knowledge of laborer's prior child molestation conviction. Burgess Fitzer successfully argued that Housing Authority of Thurston County and Gibson & Wise Investments, Inc. did not owe duty to child, as tasks, premises, and instrumentalities it entrusted to laborer were not what endangered the child. The Court of Appeals reasoned, in part, that the defendant was not hired to work with potential victims, the rape did not occur on the work premises, and, most importantly, the job duties did not facilitate or enable defendant to commit the rape. Thus, the tasks, premises, and instrumentalities entrusted to defendant were not what endangered the victim.  The Court of Appeals also found that the developer did not owe a duty to the child to prevent the rape committed by defendant. As the trial court opined, "to hold [developer] liable under the facts of this case would make every employer an insurer of the safety of any person who may have had initial contact with the employee on the premises of the employer."  Back to top Riccobono v. Pierce County, 92 Wn. App. 254 (1998) ( F. Ross Burgess and John T. Kugler for Pierce County) Former employee sued county alleging that she was wrongfully retaliated against because she had actively opposed county's alleged attempts to discriminate against her on basis of her national origin. Following a jury verdict in favor of plaintiff, both parties appealed.  On appeal, Burgess Fitzer successfully argued on behalf of the county employer that the trial court erred by admitting testimony on plaintiff’s alleged future economic damages.  Burgess Fitzer argued that no one testified that plaintiff was unable to work due to physical or mental disability, that plaintiff was unable to work in the competitive labor market, that plaintiff would actually earn $7 an hour when she returned to work, or that she would actually earn less than $10 per hour for the remainder of her work life. Plaintiff’s expert assumed these facts, while candidly admitting that he had not determined their actual existence. His opinion was based on assumptions for which there was no factual basis, thus requiring reversal of award for future economic damages.  Back to top   Havsy v. Flynn, 88 Wn. App. 514 (1997) ( Timothy R. Gosselin for Flynn)  Insured's physician brought suit for intentional interference with contract or expectancy against entity which advised personal injury protection insurer to reject some of physician's charges as not reasonable and necessary. The insured assigned her rights against State Farm to Dr. Havsy. Dr. Havsy then filed a claim against Dr. Flynn for tortious interference with a business relationship, alleging in part: there existed a valid contractual relationship or business expectancy; the defendants had knowledge of that relationship; an intentional interference inducing or causing a breach or termination of the relationship or expectancy occurred; the defendants interfered for improper purpose or used improper means; and, as a result, the plaintiff was damaged. The Superior Court granted defendants’ motion to dismiss and ordered physician to pay sanctions for filing frivolous lawsuit; physician appealed. Burgess Fitzer successfully argued that the assignee plaintiff physician's failure to allege that insured suffered any damages doomed his claim in his capacity as insured's assignee, thus the claim against respondent failed.  Back to top     Anderson v. Weslo, Inc., 79 Wn. App. 829 (1995) ( John T. Kugler for individual homeowners)  Action was brought under premises liability and products liability theories against individual homeowners and manufacturer of trampoline that allegedly caused injury to homeowners' son's friend while attempting to do a double flip.  The Superior Court granted summary judgment in favor of the homeowners.  On appeal, Burgess Fitzer successfully argued that the individual homeowners did not breach a duty to warn the plaintiff.  Although the individual homeowners must have known of the dangers associated with trampoline use, the plaintiff also realized those dangers and the property owners provided warnings about the danger of trampolines.  Summary judgment was affirmed on appeal.    Back to top   Kroeger v. First Nat’l Ins. Co., 80 Wn. App. 207 (1995) ( Timothy R. Gosselin for First Nat’l Ins. Co.) After insured, who was injured in car accident, prevailed in arbitration proceedings against insurer by establishing it was reasonable and necessary to continue her medical treatment, insured filed complaint seeking an award of attorney fees in the arbitration and in superior court.  Burgess Fitzer successfully argued that because the dispute involved extent of insured's claim rather than denial of personal injury protection coverage, general rule that insured who is compelled to assume burden of legal action to obtain benefit of its insurance contract may recover attorney fees was not applicable.  The Court of Appeals agreed. The Court of Appeals reasoned, in part, that because the dispute involved the extent of her claim rather than a denial of coverage, the denial of attorney fees was proper. The rule of Olympic Steamship applies where the insurer forces the insured to litigate questions of coverage. It does not apply where the controversy is merely over the amount of, or the denial of, a claim.  Back to top   Koste v. Chambers, 78 Wn. App. 691 (1995) ( Timothy R. Gosselin for Chambers) Following a two-car accident, the driver of one car and his passenger sued the driver of the other car. The court transferred passenger’s claim to arbitration where she received an award against defendant. The driver was not a party to arbitration. The driver’s claim against defendant went to trial where driver was found to be 58 percent at fault for the accident and defendant was found to be 42 percent at fault.  Defendant then brought this action seeking contribution from driver for the amount he had paid to passenger under the arbitration award. The Court of Appeals held that driver was not jointly and severally liable for passenger's injuries, and other driver thus had no right of contribution against him.  The Court reasoned that a  right of contribution may exist between persons who are jointly and severally liable for the same injury. To be jointly and severally liable, a party must be a defendant against whom judgment is entered. Because the driver was not a defendant against whom judgment was entered in the arbitration proceeding, he was not jointly and severally liable for passenger’s injuries. Accordingly, defendant did not possess a right of contribution against the driver.      Back to top   Atlantic Mutual Ins. Co. v. Roffe, Inc., 73 Wn. App. 858 (1994) ( Timothy R. Gosselin for Atlantic Mutual Ins. Co.) Insured employer sought to invoke insurer's duty to defend and indemnify it against former employee's claims of employment discrimination. The sole issue on appeal was whether Atlantic Mutual had a duty to defend Roffe, Inc., against claims of employment discrimination. Burgess Fitzer successfully argued and the Court of Appeals held that insurer did not have duty to defend claim for damages, since employer's allegedly discriminatory actions were in response to employee's bodily injury, not bodily injury itself.  Back to top   Pybas v. Paolino, 73 Wn. App. 393 (1994) ( Timothy R. Gosselin for Paolino) Following entry of judgment on mandatory arbitration award in case arising out of automobile accident, the Superior Court vacated award on plaintiff's motion, on basis of excusable neglect.  The question presented on appeal was  whether a Superior Court judge, lacking the authority to extend the time for requesting a trial de novo to supersede an arbitration award, abused his discretion by allowing entry of judgment on the award and, thereafter, vacating it, pursuant to CR 60(b), on the basis of excusable neglect. Burgess Fitzer successfully argued that the Superior Court's authority to vacate such a judgment was limited to those cases that involve such extraordinary circumstances that a vacation is necessary in order to prevent a gross miscarriage of justice. Applying this standard to the case, the superior court abused its discretion. The Court of Appeals held that: (1) Superior Court's authority to vacate judgment entered on mandatory arbitration award is limited to those cases that involve such extraordinary circumstances that vacation is necessary in order to prevent gross miscarriage of justice, and (2) Superior Court abused its discretion in vacating judgment.  The Court reasoned that under circumstances where the record fails to disclose any excusable reason for the failure to timely file the notice and fails to show that a denial of a trial de novo would result in a gross miscarriage of justice, the Superior Court’s decision was not based on tenable grounds and, as such, its order vacating the judgment constituted an abuse of its discretion.  Back to top   Butello v. S.A. Woods-Yates American Machine Co., 72 Wn. App. 397 (1993) ( Timothy R. Gosselin for American Machine Co.) Worker injured by woodworking machine brought products liability and negligence action against mill which leased machine to worker's employer. Plaintiff’s left arm was amputated below the elbow when he was sharpening the rotating planer knives of an industrial woodworking machine that his employer, Western Dry Kilns, Inc., leased from Paxport Mills, Inc. The Court of Appeals held that: (1) worker failed to show that lumber mill which leased machine to his employer was "product seller" subject to Products Liability Act, and (2) worker failed to show that mill was vicariously liable for negligence of machine's installer. Burgess Fitzer successfully argued that because plaintiff failed to establish facts to support his contention that defendant was a "product seller" within the meaning of Washington's products liability statute, and because plaintiff failed to establish facts to support his contention that defendant is vicariously liable for any of employee’s alleged negligence, plaintiff has failed to produce evidence to support each essential element of his cause of action against defendant.  Therefore, summary judgment was proper.  Back to top    Long v. Dugan, 57 Wn. App. 309 (1990) ( Timothy R. Gosselin for Dugan) Guardian ad litem for surviving sisters sued grandparents seeking damages for loss of consortium arising from brother's drowning in grandparents' swimming pool. While on a visit with his grandparents, a 3-year-old boy fell into the swimming pool and died 3 days later from the inhalation of water.  The minor’s father brought an action against the grandparents.  Another action was filed by decedent’s mother as guardian ad litem for the minor’s surviving sisters seeking damages for loss of consortium. The appeal concerned the claim for loss of consortium. The Superior Court denied grandparents' motion to dismiss, and they appealed. The Court of Appeals held that wrongful death statute did not give nondependent siblings a cause of action for loss of consortium. Burgess Fitzer successfully argued that the loss of consortium is not, in and of itself, a cause of action but rather an element of damages.   Hence, respondents' claim must be brought within the statute of limitations of the wrongful death statute.  The spouse may not pursue the claim independently but must recover any damages through the derivative cause of action under RCW 4.20.010; wrongful death is the cause of action and only the personal representative may bring it.  As such, the trial court erred in denying the motion to dismiss.    Back to top    Tate v. Perry, 52 Wn. App. 257 (1988) (Steven F. Fitzer and Timothy R. Gosselin for Physician) Plaintiff brought negligence action against driver of automobile for injuries sustained when plaintiff's automobile was struck from behind. Driver then filed third-party action against plaintiff's physician, alleging that physician negligently performed myelogram on plaintiff, who suffered severe adverse reaction to treatment.   The Court of Appeals held that third-party plaintiff failed to state a claim against physician for negligence in performing myelogram since there was no evidence that physician failed to exercise skill and care of reasonably prudent diagnostic radiologist in state; there was no evidence that physician used excessive dosage of metrizamide in myelography; negligence could not be inferred as matter of law since metrizamide could not be equated with leaving of foreign objects in body; general experience of mankind could not ascribe plaintiff's reactions to that of negligence; and there was no proof from experts from which it could be inferred that negligence caused plaintiff's injuries.  Accordingly, the trial  court properly dismissed the action against the physician.  Back to top   Charlton v. Day Island Marina, 46 Wn. App. 784 (1987) ( Steven F. Fitzer and Trial Lawyer Timothy R. Gosselin for Day Island Marina) Family members and personal representatives of estates of boat house lessee and his guest, who were each overcome by carbon monoxide as result of accumulation of exhaust fumes in boat house, brought action against lessor for negligence, strict liability, tort of outrage, and vicarious liability.  Burgess Fitzer succesfully argued that (1) lessor owed no duty of care to lessee and guest to provide ventilation features for boat house; (2) fact that lessor had installed vents on other boat houses in marina did not render lessor liable for deaths of lessee and guest; (3) plaintiffs failed to establish that boat house was a "product," for purposes of imposition of strict liability; and (4) lessor was not liable on theories of tort of outrage or vicarious liability.  The Court of Appeals affirmed and reasoned, in part, that the structural conditions that allowed the exhaust gases to accumulate in the boathouse were entirely open and obvious. Thus, even assuming arguendo that the absence of ventilation features other than the two doors and other openings may be considered a defect, such a defect would not be latent or obscure, but obvious or patent and therefore not a basis for liability on the part of Day Island.  Back to top   Furlong v. Farmers Ins. Co., 44 Wn. App. 458 (1986) ( Timothy R. Gosselin for Farmers Ins. Co.) Injured passenger who was insured under both his mother's and stepfather's separate automobile policies brought action seeking declaratory judgment that both policies provided coverage for the accident. The issue on appeal involved whether the anti-stacking or "other insurance" provisions of the policies precluded recovery under both policies for injuries resulting from one accident or occurrence.  The Superior Court entered summary judgment in favor of insurer, and insured appealed. The Court of Appeals held that anti stacking provisions of policies precluded recovery under both policies for injuries resulting from one accident.   Burgess Fitzer successfully argued that "you" was defined in the policy to include both the named insured and his or her spouse. In light of this definition, Farmers concluded that the "you" referred to in the anti-stacking provisions in the policies at issue here included the named insured's spouse. Therefore, the provisions at issue were unambiguous, and stacking the policies issued to appellant's mother and stepfather was clearly prohibited.  Back to top   Anderson v. Farmers Ins. Co., 83 Wn. App. 725 (1996) ( Timothy R. Gosselin for Farmers Ins. Co.)  Arbitration award of $56,000 on insured's claim for underinsured motorist (UIM) benefits was confirmed by the Superior Court and appellant appealed.  The issues on appeal involved:  (1) whether  Farmers' policy limited the arbitrators' authority to the amount of the UIM limits; (2) whether the trial court erred by entering findings and conclusions on bad faith; and (3) whether the trial court erred in its award of costs.   Burgess Fitzer successfully argued that (1) arbitrators could award no more than policy's $25,000 limit of UIM coverage; (2) insurer was entitled to credit for tort-feasor's $25,000 liability limit; (3) trial court lacked statutory authority to rule on insured's potential bad faith claim; and (4) award of costs was governed by costs provision of arbitration statute, not by more general statute setting forth costs to be awarded in civil actions. The Court reasoned, in part, that the policy language limited the arbitrators' authority to  the amount of the UIM limits, that the trial court lacked authority to make findings and conclusions on bad faith, and that the costs were improperly assessed. Back to top     Philippides v. Bernard, 151 Wn.2d 376, 88 P.3d 939 (2004) ( Timothy R. Gosselin amicus curiae for Association of Washington Cities and City of Tacoma) Wrongful death defendants sought direct review of four consolidated cases involving the potential recovery for parents of decedent for loss of consortium, despite their lack of financial dependence. The Supreme Court held that: (1) statute governing parents' causes of action arising from death or injury of child, as amended, did not permit parent of adult child to recover damages for loss of consortium when parent was not financially dependent on child; (2) common law cause of action for loss of consortium on behalf of parents of adult child would not be recognized, as such cause of action was governed by statute; (3) statute's requirement of financial dependency for parents of adult children did not violate federal constitutional equal protection clause; and (4) such statutory requirement did not violate state constitutional privileges and immunities clause. The Supreme Court reasoned, in part, that RCW 4.24.010 requires that parents be financially dependent on an adult child in order to recover for that child's injury or death.  Further, the legislature has identified the statutory beneficiaries. While the value parents place on children in our society is no longer associated with the child's ability to provide income to the parents, the legislature has defined who can sue for the wrongful death and injury of a child. The change the plaintiffs seek must come from the legislature rather than the court. Therefore, there is a reasonable basis for the statute's treating parents of adult children differently from parents of minor children.  RCW 4.24.010 does not confer a special privilege on parents of minor children or on financially dependent parents of adult children.  Thus, the decedent’s parents may not recover under RCW 4.24.010 without a showing of financial dependency upon the decedent.  Back to top   Fisher v. Allstate Ins. Co., 136 Wn.2d 240 (1998) ( Timothy R. Gosselin, amicus curiae for Washington Defense s) Plaintiff was seriously injured in a motorcycle accident in northern Idaho. The driver of the car that struck plaintiff had liability coverage with a limit of $125,000. Plaintiff had a policy with Allstate which had an underinsured motorist (UIM) coverage limit of $25,000.  Both the tortfeasor's insurer and Allstate refused to tender their policy limits to plaintiff. Plaintiff sued the defendant and Allstate for UIM coverage.  Early on, Allstate knew of plaintiff’s suit against the tortfeasor but Allstate elected not to participate. The insured brought suit against insurer to collect underinsured motorist (UIM) benefits and amended complaint to add a claim for bad faith when insurer refused to pay arbitration award obtained in separate litigation against underinsured motorist. The Superior Court  entered partial summary judgment in favor of insured on contract claim. The issue on appeal involved whether an underinsured motorist carrier is bound by the results of an arbitration between its insured and the tortfeasor when the carrier did not participate but had notice and an opportunity to intervene in the action.  The Washington Supreme Court based its decision upon the holding in Finney v. Farmers Ins. Co., 21 Wn. App. 601, 586 P.2d 519 (1978), aff'd, 92 Wn.2d 748, 600 P.2d 1272 (1979), which held that an underinsured carrier is bound by the resulting judgment against a tortfeasor when an insurer has notice and an opportunity to intervene. The Supreme Court held that: (1) UIM insurer which received notice of insured's tort suit against tortfeasor and elected not to intervene was bound by results of arbitration proceeding against tortfeasor, and (2) insurer's reliance on original scheduling orders that called for UIM case to be tried before tort case did not prevent it from being bound.  Back to top   Reynolds v. Hicks, 134 Wn.2d 491 (1998) (Timothy R. Gosselin, amicus curiae for Washington Defense s Association) The issue presented in this case was whether a social host who furnishes alcohol to a minor owes a duty of care to third persons injured by the intoxicated minor.  Person injured in collision with minor who allegedly became intoxicated at wedding reception sued bride and groom. The Washington Supreme Court declined to extend social host liability to third persons injured by intoxicated minors. The Court recognized that social hosts are ill-equipped to handle the responsibilities of their guests' alcohol consumption, unlike commercial vendors who are in the business of serving and selling alcohol. Thus, the Court has not allowed a cause of action against social hosts to the extent of commercial vendor liability. Washington courts have also recognized that RCW 66.44.270 does not protect third persons injured by an intoxicated minor but, rather, protects minors from their own injuries as a result of their intoxication.  Back to top   Reninger v. Dept. of Corrections, 134 Wn.2d 437 (1998) (John T. Kugler, amicus curiae for Washington Association of Prosecuting Attorneys) Former corrections officers sued Department of Corrections and fellow officers, alleging wrongful constructive discharge and tortious interference with business expectancy. The Superior Court entered judgment on the verdict for officers on wrongful discharge and tortious interference claims, but the Court of Appeals reversed. On appeal, the Supreme Court considered whether state correctional officers who were disciplined through the State's personnel process can, after losing their appeals of that discipline before the State Personnel Appeals Board (PAB), bring claims in Superior Court for wrongful constructive discharge or tortious interference with a business expectancy. The Supreme Court held that: (1) officers failed to allege wrongful constructive discharge claims in that they failed to allege or prove that they were terminated for a reason that contravenes public policy, and (2) officers' claims against fellow officers for tortious interference with a business expectancy, i.e., plaintiffs' employment, were collaterally estopped by the decision of Personnel Appeals Board rejecting appeals of discipline.  Back to top   Geschwind v. Flanagan, 121 Wn.2d 833 (1993) ( Timothy R. Gosselin, amicus curiae for Estate of Decedent)  Passenger who was injured in single vehicle accident brought action against driver's estate and others to recover damages.  Both men were significantly intoxicated.  A jury found the passenger to be 70 percent at fault for his own injuries. Pursuant to RCW 5.40.060, which prohibits recovery by an intoxicated plaintiff if the intoxication was a proximate cause of the injuries and the plaintiff is more than 50 percent at fault, passenger was denied recovery, and the defendant was awarded judgment. On appeal, the Washington Supreme Court addressed two distinct questions: (1) can a negligent passenger ever be more at fault for his or her injuries than a negligent driver; and (2) does RCW 5.40.060 prohibit recovery to an intoxicated passenger when the intoxication was a proximate cause of his or her injuries, and the passenger is found to be more than 50 percent at fault for those injuries. The Washington Supreme Court held that: (1) negligent passenger can be more at fault for his or her injuries than negligent driver, and (2) statute prohibiting recovery by intoxicated plaintiff if intoxication was proximate cause of injuries and plaintiff was more than 50% at fault prohibited recovery to intoxicated passenger.  The Court reasoned, in part, that the courts of this state have long held that a passenger may be found to be contributorily negligent by voluntarily riding in a car with a driver who he or she knows, or reasonably should know, is intoxicated.  Further, when a person has voluntarily engaged in behavior which increases the risk of injury, he or she may be held to be predominantly liable for the injuries occurring as a result thereof.      Back to top   Sofie v. Fibreboard Corp., 112 Wn.2d 636 (1989) (F. Ross Burgess; Timothy R. Gosselin, amicus curiae for Washington Defense s Ass'n and Defense Research Institute) The Washington Legislature passed RCW 4.56.250 in 1986 partly as a response to rising insurance premiums for liability coverage. The damages limit that the statute created operated on a formula based upon the age of the plaintiff.  As a result, the older a plaintiff is, the less he or she will be able to recover in noneconomic damages. The trial judge applies the limit to the damages found by the trier of fact. If the case is tried before a jury, the jury determines the amount of noneconomic damages without knowledge of the limit. The jury goes about its normal business and the judge reduces, according to the statute's formula and without notifying the jury, any damage verdicts that exceed the limit. Petitioners challenged the constitutionality of RCW 4.56.250. This statute, part of the 1986 tort reform act, placed a limit on the noneconomic damages recoverable by a personal injury or wrongful death plaintiff. The petitioners brought a direct appeal to the Washington Supreme Court after the trial judge reduced the jury's award of noneconomic damages, pursuant to the statute.  The petitioners argued that RCW 4.56.250 violated their constitutional rights to trial by jury, equal protection, and due process. The Court found that the statute's damages limit interferes with the jury's traditional function to determine damages. Therefore, RCW 4.56.250 violated article 1, section 21 of the Washington Constitution, which protects as inviolate the right to a jury.  Back to top   E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901 (1986) ( Timothy R. Gosselin, amicus curiae for Washington Ass'n of Defense Counsel) Employees brought Civil Rights Act claims against employer based on illegal discharge due to sex and age discrimination. Employer tendered defense to insurer under comprehensive general liability policy. Insurer declined to defend or cover insured, as did excess insurance carrier. Employees were successful in their claims at trial. After trial, employer sued insurers for costs of defense, for coverage, and for damages for bad faith. The Superior Court granted insurer's motions for summary judgment. Employer appealed. The Washington Supreme Court  held that: (1) employees' sex and age discrimination claims for wrongful discharge were not covered by employer's comprehensive general liability policy for accidental injuries; (2) employer's comprehensive general liability policy covered bodily injury, not mental anguish, mental illness, or emotional distress; (3) insurer did not have duty to defend action brought against employer based on discrimination on clear and unambiguous complaint indicating no coverage for claim existed; and (4) insurer was not required to defend against illegal discriminatory acts of employer which were cases of discrimination by disparate treatment. The Court reasoned, in part, that a contract of insurance against the party's own negligence will be enforced only if it is clearly and specifically undertaken by the insurer. Neither the Travelers nor the Highlands' contract covers sex or age discrimination actions. The Court declined to expand contracts to cover discrimination committed intentionally and to expand contracts to cover sex or age discrimination claims when the parties' intentions that they do so are not clearly articulated.  Back to top