Category: Merits Cases

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Seeking Absolutes in a World of Probabilities: Washington Supreme Court Finds Mesothelioma to be Risk of Asbestos Exposure Rather than a Certain Harm

In Waltson v. Boeing Co., a 5-4 majority of the Washington Supreme Court held that Boeing did not have actual knowledge in 1985 that asbestos exposure would cause certain injury and that its former employee was therefore only entitled to worker’s compensation payment for the cost of the mesothelioma that likely resulted from that exposure.  … Continue Reading

The ER Should Not Be a Warehouse for Disabled People

Washington has allowed people to be involuntarily detained if they are a risk to themselves or others or are gravely disabled under the Involuntary Treatment  Act (ITA) since 1977 – first for a short period of evaluation, then for treatment.   Close of observers of modern mental health trends will not be surprised to learn that … Continue Reading

Don’t Quit Too Soon

In Campbell v. State of Washington Employment Security Department, a unanimous Washington Supreme Court upheld the decision of the Department of Employment Security (Department) that a school teacher who quit his job in June 2010, to accompany his wife in February 2011 to Finland on her Fulbright grant, did not qualify for unemployment benefits under … Continue Reading

Washington Won’t Second Guess Your Out of State Conviction.

In State v. Jordan, a unanimous Washington Supreme Court ruled that a trial court properly increased a defendant’s prison sentence because he had been previously convicted of manslaughter in Texas, even though Washington has more forgiving self-defense laws than Texas.   The court held that sentencing judges may properly consider the fact that a defendant was … Continue Reading

State v. Franklin – State Supreme Court Divided Over Discretion

In State v. Andre Luis Franklin, five State Supreme Court justices reversed a defendant’s convictions after concluding the trial court erred in excluding evidence to further the defendant’s “other suspect” defense.  The defendant, Franklin, was in pseudo-relationships with two different women, Hibbler and Fuerte, and the women had a history of jealousy with one another.  … Continue Reading

No comprende? No problema. Washington’s Supreme Court accepts poor performance by defense lawyer who didn’t speak the same language as his client

In the Matter of the Personal Restraint of Gomez, the Washington Supreme Court rejected a collateral attack on a mother’s conviction for killing her child through abuse. The Court ruled that the Spanish-speaking client did not deserve a new trial even though her lawyer only spoke English and also represented the child’s father in a … Continue Reading

Discretion Prevails: Trial Courts May Rule on Jury Instructions When Asked…or Not

In a unanimous decision, the Washington Supreme Court clarified Washington’s Criminal Court Rules by holding that it is within the trial court’s discretion to provide preliminary rulings on jury instructions during trial. The Court then affirmed Ronald Mendes’s second degree murder conviction after rejecting his argument that he was “compelled” to testify in his defense.… Continue Reading

State Supreme Court Upholds $57 Million Verdict for In-Home Care Providers

In a 5-4 decision, the Washington State Supreme Court upheld a Thurston County jury’s award of over $57 million to live-in individual care providers (“providers”). Eight of the nine justices agreed to overturn an additional $39 million in prejudgment interest the providers also received at trial. All of the justices agreed that the recipients of … Continue Reading

State v. Garcia, Jr. – Not Enough Evidence for First Degree Kidnapping Conviction

In State v. Garcia, Jr., No. 88020-4, the State Supreme Court unanimously reversed the defendant’s first degree kidnapping and second-degree kidnapping convictions and remanded for a new trial of those convictions, but affirmed the defendant’s criminal trespass conviction. The defendant, Phillip Garcia, Jr., believed he was involved in a car chase after hearing gun shots … Continue Reading

Washington Supreme Court Holds That the WLAD Exemption for Non-Profit Religious Organizations is Unconstitutional as Applied to Certain Employees

[Note:  This post was drafted by Labor and Employment Associate Karin Jones] The Washington Supreme Court has significantly limited non-profit religious organizations’ immunity from employment discrimination claims brought under the Washington Law Against Discrimination (“WLAD”), RCW 49.60.  In Ockletree v. Franciscan Health System, the majority held that the exemption of non-profit religious organizations from the … Continue Reading

These Walls Shouldn’t Have Ears: State Supreme Court “Appalled” by the Need to Remind State that It May Not Eavesdrop on Private Conversations Between a Defendant and His/Her Counsel

In State v. Pena Fuentes, the State Supreme Court again condemned “the odious practice of eavesdropping on privileged communication between attorney and client” in criminal matters, as it had previously done in State v. Cory, 62 Wn.2d 371, 382 P.2d 1019 (1963).  Though the Cory court held that such misconduct is presumably prejudicial, in Pena … Continue Reading

Under the Distressed Property Conveyance Act (DCPA), Whether a Property Is Sufficiently “At Risk of Loss Due to Nonpayment of Taxes” to Qualify as a “Distressed Home” Is a Question of Fact

[Note:  This post was drafted by Litigation Partner Jill Bowman] The DCPA, chapter 61.34 RCW, is a remedial consumer protection statute intended to protect homeowners who, because they are in desperate circumstances, may be vulnerable to predatory schemes designed to deprive them of their equity interests.  The statute’s procedural safeguards are afforded to transactions involving … Continue Reading

Even Creeps Have a Right to Privacy: Appellate Courts Must Decide For Themselves Whether Conversations Admitted into a Criminal Trial Were Private or Not

In State v. Kipp, a unanimous court reversed a defendant’s conviction because the trial court admitted a recording of a conversation that was protected by Washington’s privacy act.  A six Justice majority further ruled that Washington’s privacy act requires appellate courts to review de novo trial court decisions that a conversation was not private.  In a … Continue Reading

Does the Right to Counsel for Personal Restraint Petitions Mean Anything?

In In Re Personal Restraint of Stockwell, the Supreme Court unanimously (7 judges, with 2 concurring) determined that an involuntary guilty plea may only be overturned on collateral attack if the petitioner shows actual and substantial prejudice from the circumstances surrounding the plea.  This decision is the latest in the Court’s self-described “course correction” towards … Continue Reading

Fifty Shades of Poverty: State Supreme Court Holds There is No Such Thing as “Driving While Poor” If You Own Your House

In State v. Johnson, a 5-4 majority of the State Supreme Court upheld Lewis County resident Stephen Johnson’s third-degree driving while license suspended (DWLS) charge for failing to pay a $260 traffic ticket because he arguably had the financial means to do so. Background After Johnson’s driver’s license expired in 2001 he did not renew it.  In 2007, … Continue Reading

Congrats, you’re a dad! The kid’s staying with mom.

The Washington Supreme Court recently ruled that a parentage order is a custody decree that cannot be modified without adequate cause and a change of circumstances.                        Background: In Parentage of C.M.F. the superior court issued a parentage order that designated an individual as the father, named C.M.F.’s mother “custodian solely for purpose of other state … Continue Reading

Be Careful Who You Let Change the Diapers: Caregivers May Become “De Facto Parents”

The Washington Supreme Court, through identical five-Justice majorities, announced two decisions expanding the definition of parent in the state.  In In the Matter of the Custody of B.M.H., the Court held that the judge-made concept of “de facto parenthood” still existed in Washington even though the legislature had subsequently recognized additional forms of families.  The Court … Continue Reading

General Partnership Partners Are Not Third Parties For Insurance Coverage

International Marine Underwriters v. ABCD Marine, LLC The IMU opinion is an interesting example of legal gymnastics.  The lead opinion engages in “interpretation” followed by “construction” – distinguishing between the two – in order to give meaning to the operative insurance policy.  It then applies Washington partnership law to ascertain the relationship between a partner … Continue Reading

Don’t Take Your Guns to Town: Washington Supreme Court Upholds Firearm Ban

The Washington Supreme Court recently upheld the application of a state law prohibiting individuals accused of committing “serious crimes” from possessing firearms while free on bond or personal recognizance awaiting trial.  In State v. Jorgenson, the Court concluded that public safety considerations may justify the temporary suspension of an accused individual’s right to possess firearms … Continue Reading

Washington Supreme Court Breaks New Ground with Independent Duty Doctrine

Donatelli v. D.R. Strong Consulting Engineers, Inc. [Wash. Sup. Ct. No. 86590-6] A five justice majority in this case continued to develop the “independent duty doctrine” in Washington. That doctrine has superseded the “economic loss rule,” which previously limited recovery of economic damages to contract claims and recovery of non-economic damages to tort claims. According … Continue Reading


State of Washington v. Bao Dinh Dang [Wash. Sup. Ct. No. 87726-2] The Washington Supreme Court issued a unanimous opinion that held that persons acquitted of a crime by reason of insanity and granted conditional release under medical supervision may only have their conditional release terminated if the court determines they are dangerous.  Without a … Continue Reading

Washington Supreme Court Redefines “Property of Another” for Purposes of Malicious Mischief Conviction

State of Washington v. Wooten [Wash. Sup. Ct. No. 87855-2] Commentary: David Wooten was convicted of first degree malicious mischief for damaging a home that he was purchasing pursuant to real estate contract. Wooten claimed on appeal that he did not damage “property of another,” an element of the offense, because he had exclusive possessory … Continue Reading


In re Disciplinary Proceeding Against Joe Wickersham [Wash. Sup. Ct. No. 201,088-1] Among the Washington Supreme Court’s many responsibilities is review of disciplinary actions.  Here, the circumstances were especially difficult because the attorney misconduct was caused by mental illness rather than neglect or incompetence.  Nevertheless, given the seriousness of the misconduct, the six-justice majority imposed … Continue Reading