Washington Supreme Court Holds Liability of School District Cannot be Precluded as a Matter of Law Based on Legal Cause

On March 4, 2021, the Washington Supreme Court held in Myers v. Ferndale School District, No. 98280-5, that the alleged acts of negligence of the school in not complying with internal policies and safety precautions for taking students on an off campus walk were not too remote or insubstantial to be the legal cause of the student’s death.

In this case, a wrongful death claim was brought on behalf of a student against the school district after a student was killed by a vehicle while on an off campus walk with his class. The trial court dismissed the negligence claim on summary judgment based on lack of duty. The Court of Appeals reversed, determining that there were sufficient factual issues on duty and proximate causation.

The Washington Supreme Court affirmed. The Supreme Court noted that while the Court of Appeals erred in analyzing legal causation, it properly concluded that material issues of fact existed concerning proximate causation. The Court found that legal causation should not be assumed to exist every time a duty of care has been established. Legal cause is determined by utilizing “mixed considerations of logic, common sense, justice, policy, and precedent.”

The Court found that sufficient evidence was presented to survive summary judgment by establishing a factual question as to whether the school district’s act of taking the students off campus led to the accident. The Court’s legal cause analysis included the underlying policy considerations for imposing liability. The Court held:

[O]ur cases establish a policy based on the special relationship where school districts may be liable for harms suffered by students even where the harm occurs off campus and is caused by the act of a third party. This flows from the custodial relationship and responsibility between schools and students. Since students are involuntarily subject to the school’s control, schools must take affirmative steps to protect students even against reasonably foreseeable acts of third parties.

Here, the off campus walk did not comply with the internal policies and safety precautions. The Court held the alleged acts of negligence were not too remote or insubstantial to be the legal cause of the student’s death. Therefore, the Court could not preclude liability as a matter of law based on legal cause.

In a concurrence, Judge McCloud disagreed with the majority’s application of its legal cause analysis. She agreed that the school district’s failure to obtain required parental permission for the walk suffices to show legal cause. However, she disagreed that the teacher’s decision to take the walk on the sidewalk, at a normal pace, in broad daylight, suffices to show legal cause. She noted that “[i]f legal cause is satisfied here, then legal cause could be satisfied for accidents occurring during many basic recreational and educational activities that students enjoy, from jump rope to dance.”

Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha & Lang, P.S. or its clients.

Washington Federal Court Rules Notice Prejudice Rule Does Not Apply to Consecutive Claims-Made and Reported Policies

On December 12, 2020, Philadelphia Indemnity Insurance Company, prevailed before the U.S. District Court for the Western District of Washington, in Faithlife Corp. v. Phila. Indem. Ins. Co., 2020 WL 7385722 (W.D. Wash. 2020), on cross-motions for summary judgment.

Philadelphia issued plaintiff two claims-made and reported policies, one effective in 2016 and one effective in 2017. During the 2016 policy, plaintiff was mailed notice of administrative charges from the EEOC, regarding alleged age and disability discrimination against former employees. The charges were not reported to Philadelphia, and were later voluntarily withdrawn by the former employees. Then, during the 2017 policy period, the former employees filed an employment discrimination lawsuit against plaintiff. Plaintiff reported the lawsuit to Philadelphia, who denied coverage under the terms of the policies. Plaintiff filed suit against Philadelphia for coverage.

The parties filed cross-motions for summary judgment regarding coverage. Philadelphia argued that there was no coverage under the claims-made and reported policies, since plaintiff failed to give timely notice of the claim during the 2016 policy. The Court agreed. The Court found that the administrative charges filed by the former employees were a “claim” under the policies. Based on the policy language, the administrative charges and the lawsuit alleged the same wrongful acts, and were not reported during the 2016 policy, and therefore excluded under the 2016 policy.

The Court rejected plaintiff’s argument that the “Prior and Pending” clause does not exclude the claim under the 2017 policy, or that the policies contain a “Loss Aggregation Clause” that is not properly read to exclude the claim. The Court also rejected plaintiff’s arguments that the notice/prejudice rule should apply.

Based on these findings, the Court granted Philadelphia’s motion for Partial Summary Judgment, finding no coverage under Philadelphia’s policies, and denied plaintiff’s motion for partial summary judgment on coverage.

Philadelphia was represented by Soha & Lang attorneys Paul Rosner and Jillian M. Henderson in this matter.

New COVID Legislation in Washington to Modify Insurance Policy Terms

On January 26, 2021, Senate Bill 5351 was introduced during the State of Washington’s 67th Legislature’s 2021 Regular Session. The bill seeks to change the suit limitations period from one year to two years (RCW 48.18.200), and add the provision that:

“Every property insurance policy containing a grant of coverage for direct physical loss of or damage to property shall be construed to include the deprivation of such property and the loss of the ability to use such property.”

(RCW 48.18.520). The bill would also add two new sections, applying these changes retroactively to February 29, 2020, when Governor Inslee issued Proclamation 20-05, and explaining that the act would take effect immediately.

If you have additional questions on this bill, or would like to receive continuing updates, please feel free to reach out to Soha & Lang.

Court Holds that Bicyclist is a “Pedestrian” for Purpose of Coverage

McLaughlin v. Travelers Comm. Ins. Co., Wash. Supreme Court (Dec. 10, 2020).

This case deals with whether the plaintiff, while riding his bicycle at the time of the accident, was a “pedestrian” under his California auto insurance policy’s MedPay coverage. “Pedestrian” was not defined by the policy. RCW 48.22.005(11) defines “pedestrian” for purpose of casualty insurance as “a natural person not occupying a motor vehicle as defined in RCW 46.04.320.” Since McLaughlin’s bicycle did not have a motor, he was deemed a “pedestrian.” The Court discussed the Court of Appeals approach to “harmonize” the definition of “pedestrian” in RCW 48.22.005(11) with RCW 46.04.400. The latter statute expressly excludes bicyclists from the definition of “pedestrian.” RCW 48.22.005(11), applies to casualty insurance, however, and RCW 46.04 has limiting language that definitions in that chapter apply to that chapter, “except where otherwise defined,” so RCW 48.22.005(11) was determined to be the appropriate definition to apply in this case.

The Court discussed that even if the definition of “pedestrian” in RCW 48.22.005(11) was not applied, the term “pedestrian” in the policy is ambiguous, and resolved in favor of the insured.

Soha & Lang, P.S. Receives PNW CPCU Chapter President’s Award

Soha & Lang, P.S. is honored to accept this year’s Presidents Award from the Pacific Northwest Chapter of the CPCU Society. The President’s Award recognizes a company’s strong support for insurance education and involvement in the CPCU Society. We also extend our congratulations to Soha & Lang, P.S. shareholders Paul Rosner, Jennifer Dinning, and Geoff Bedell, who earned the CPCU designation and are active in the CPCU Society.

Learn more about the Pacific Northwest Chapter of the CPCU Society at: https://pacificnorthwest.cpcusociety.org/about

Alaska Supreme Court Holds If Policy As A Whole Is Clear, Then It Is Not Ambiguous

On October 9, 2020, the Alaska Supreme Court held in Kathleen M. Downing v. Country Life Insurance Company, —P.3d—, 2020 WL 5988226 (2020), that under the doctrine of reasonable expectations, even if one part of a policy is unclear, if the policy when read as a whole is clear, the policy is not ambiguous. In this case, the daughter purchased an executive whole life policy that paid a flat $500,000 upon her death, and a Paid-Up Additions Rider (“PUAR”) that provided an increasing death benefit and cash value for each year premiums were paid on the PUAR, and that also acted as an investment. The first page of the policy stated the PUAR provided coverage of $1,079,014, but the second page of the policy included a table explaining the guaranteed cash value and paid-up insurance per year of the policy. After a year of paying the premiums, the daughter assigned the PUAR to her mother, who took over paying the premiums for the investment value. The daughter died a short time later, during the second year of the policy coverage. Country Life Insurance Company (“Country”) paid mother the $500,000 from the executive whole life policy, and $108,855 from the PUAR.

The mother sued, arguing that she was entitled to $1,079,014, the coverage on the PUAR. The Alaska Supreme Court upheld the superior court’s ruling on summary judgment that Country did not owe anything further to the mother. In doing so, the Alaska Supreme Court held that although ambiguity in a policy is construed in favor of the insured, under the doctrine of reasonable expectations, ambiguity only exists “when the contract, taken as a whole, is reasonably subject to differing interpretations.” Consequently, although the Alaska Supreme Court found the first page of the policy misleading, when viewing the policy as a whole, including the table on page two, it was clear that the policyholder could stop making payments at any time and withdraw the current cash value.

Disclaimer: The opinions expressed in in this blog are those of the author and do not necessarily reflect those of Soha & Lang, P.S. or its clients.

Soha & Lang Attorney Jillian Henderson Elected President of WDTL

On July 16, 2020, Soha & Lang, P.S. attorney Jillian Henderson was elected President of the Washington Defense Trial Lawyers (WDTL). WDTL provides education, recognition, collegiality, professional development, and advocacy for and on behalf of civil defense litigators. Jillian’s election culminates years of service. Congratulations Jillian and well done!

Washington Supreme Court Holds School Districts May Be Strictly Liable for Employees’ Discrimination Under the WLAD

In deciding two certified questions from the Western District of Washington regarding the meaning of the Washington Law Against Discrimination (“WLAD”), chapter 49.60 RCW, the Washington Supreme Court unanimously held in W.H. et al. v. Olympia Sch. Dist., No. 97630-9 (Jun. 18, 2020) that: (1) a school district may be subject to strict liability for discrimination in places of public accommodation by its employees in violation of the WLAD, and (2) under the WLAD, discrimination can encompass intentional sexual misconduct, including physical abuse and assault.
The Plaintiffs sued the Olympia School District in the Western District of Washington in 2016, in connection with the abuse of minor passengers on a school by a bus driver employed by the school district. In response to the Supreme Court’s decision in Floeting v. Group Health Cooperative, 192 Wn.2d 848, 434 P.3d 39 (2019), the Plaintiffs successfully moved to amend their complaint to include a claim under the WLAD. The School District then moved to certify three questions regarding the WLAD to the Supreme Court. The federal court certified two of the three questions., as follows: (1) “May a school district be subject to strict liability for discrimination by its employees in violation of WLAD?,” and (2) “If a school district may be strictly liable for its employees’ discrimination under the WLAD, does ‘discrimination’ for the purposes of this cause of action encompass intentional sexual misconduct, including physical abuse and assault?”
The Court answered in the affirmative as to both questions. The court first examined the statutory language of RCW 49.60.215(14), which makes it “an unfair practice for any person or agent or employee to commit” a discriminatory act “in any place of public…accommodation.” The Court then examined its recent decision in Floeting, 192 Wn.2d 848. In Floeting, the Court held that employers are strictly liable for the actions of their employees under RCW 49.60.215. Id. at 861. With respect to the first question, the Court based its ruling on the WLAD’s definition of “person” set forth in RCW 49.60.040(19). The definition included any political or civil subdivision of the state. As RCW 28A.315.005(2) states that local school districts are political subdivision of the state, the Court found the chain of logic clear. Thus, the Court held that a school district is subject to strict liability lawsuits for discrimination in places of public accommodation by its employees in violation of the WLAD. In doing so, the Court rejected the School District’s argument that it was protected by a statutory waiver of sovereign immunity, as enacted by legislation in the 1960s, finding instead that “the WLAD clearly abrogated that sovereign immunity when it created a private cause of action, permitting suit in court, for discrimination in places of public accommodation and included public educational facilities in its definition of places of public accommodation.”
With respect to the second question certified to the Court, the Court again looked to its recent rulings in Floeting. In Floeting, the Court held that sexual harassment is a form of sex discrimination. 192 Wn.2d at 853; see also id. at 862-63 (Madsen, J., dissenting) (agreeing that “sexual harassment…is a form of sex discrimination” (citing Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 405, 693 P.2d 708 (1985))). In answering the second certified question in the affirmative, the Court found that because sexual harassment is a form of sex discrimination, so, too is intentional sexual misconduct, including physical abuse and assault.
Disclaimer: The opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.

Washington Supreme Court Holds Law Firm May Represent Insured in Lawsuit Against Former Client

On May 21, 2020, the Washington Supreme Court unanimously held in Plein v. USAA Cas. Ins. Co., 97563-9, 2020 WL 2568541 (Wash. May 21, 2020), that a former client seeking to disqualify the adverse party’s lawyer has the burden of showing that matters were substantially related, and that a matter is not “substantially related” to representation of the former client if it is not factually related to any representation of the former client.

In this case, the law firm Keller Rohrback LLP (“Keller”) represented homeowners in a lawsuit against USAA Casualty Insurance Company (“USAA”) alleging that USAA refused to pay for expenses after a house fire in bad faith. Keller had previously represented USAA for many years in various cases, including a suit with similar allegations involving a house fire. As part of this former representation, Keller had gained information regarding USAA’s policies and practices, thought processes, and business and litigation philosophies and strategies. Keller’s representation had included matters involving allegations similar to those made by the homeowners. On this basis, USAA alleged a conflict of interest disqualifying Keller under Rule of Professional Conduct 1.9, which states that a lawyer may not represent a new client against a former client “in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.”
The Washington Supreme Court, siding with the majority of jurisdictions, first determined that the burden for showing that matters are “substantially related” rests with the former client. In that context, the court then concluded that the facts of this case and those of prior USAA cases, including the prior house fire case, were distinct and unrelated. Likewise, the court concluded that the information Keller gained when it represented USAA did not preclude Keller’s representation of the homeowners. As such, the court held that Keller was not disqualified from representing the homeowners against USAA.

Disclaimer: The opinions expressed in in this blog are those of the author and do not necessarily reflect those of Soha & Lang, P.S. or its clients.

Arbitration Provision Enforceable in Insurance Issued by Risk Retention Group, While Arbitration and Choice-of-Law Provisions Unenforceable in Reinsurance Contract

Two recent decisions addressed the application of a Washington statute, RCW 48.18.200, which prohibits arbitration agreements and foreign choice-of-law provisions in insurance issued to Washington insureds. First, the Ninth Circuit held that the Washington statute did not prohibit an arbitration clause in an insurance policy issued to a Washington insured by a risk retention group chartered in Arizona. Allied Professionals Ins. Co. v. Anglesey, 2020 WL 1179772 (9th Cir. Mar. 12, 2020). The Ninth Circuit explained that the arbitration provision was enforceable because the Washington statute was preempted by the Liability Risk Retention Act of 1986, 15 U.S.C. § 3901 et seq. Second, a Washington federal district court held that the Washington statute voided arbitration and New York choice-of-law provisions in a reinsurance contract issued to a Washington risk pool. Washington Cities Ins. Auth. v. Ironshore Indem. Co., 2020 WL 1083715 (W.D. Wash. Mar. 6, 2020). In reaching this result, the court rejected the contention that reinsurance was not insurance subject to the statute.

Please note that any opinions expressed in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.