Archive for the ‘Judge Anne Ellington – Concur in Majority’ Category

Court of Appeals: Div. I: No “Made Whole” Argument Where Insurance Customer Does Not Seek Recovery Themselves

April 29, 2010

Averill v. Farmers Insurance Company

Pearl Averill’s daughter was in a car accident where the car was totaled. Farmers was her insurer. Farmers paid Ms. Averill for the total loss less a $500 deductible and then sought to recover the amount it paid directly from the other person involved in the accident. Without Ms. Averill’s involvement, Farmers engaged in an arbitration with the insurance company for the other driver. The arbitrator determined that both parties were 50% at fault for causing the accident. Farmers then recovered half of the $500 deductible from the other party’s insurer. It refunded the $250 to Ms. Averill. Ms. Averill argued that Farmers was not entitled to keep the other half of the deductible because Ms. Averill had not been “made whole” for her loss. The Court of Appeals disagreed, holding that the “made whole doctrine” only applies in situations where an insurance customer pursues a recovery from an at fault party, but is not fully compensated for their loss. Since Farmers and not Ms. Averill was the entity that pursued recovery from the at fault party, the Court of Appeals determined, Ms. Averill could not claim that she was not “made whole.”

Posted in Consumer Protection, Contracts, Equity, Insurance, Judge Anne Ellington - Concur in Majority, Judge Marlin Applewick - Draft Majority, Judge Stephen J. Dwyer - Concur in Majority, Tort, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. I: Criminal Defendant Who Relied on Erroneous Advice Entitled to Withdraw Guilty Plea

April 29, 2010

Personal Restraint Petition of Quinn

Christopher Quinn was charged with child molestation. On the advise of his attorney, he pleaded guilty. He had been informed that he would be subject to 3 to 4 hears of community custody. Actually, he was sentenced to life in community custody. The Court of Appeals held that his guilty plea was, therefore, not made knowingly, intelligently and voluntarily. The Court of Appeals determined that Mr. Quinn could withdraw his guilty plea.

Posted in Criminal Law, Judge Ann Schindler - Concur in Majority, Judge Anne Ellington - Concur in Majority, Judge Stephen J. Dwyer - Draft Majority | 1 Comment »

Washington Legal Roundup – Division I

December 28, 2009

Boguch v. The Landover Corporation

Geoff Boguch wanted to sell waterfront property in Hunt’s Point.  He hired the Landover Corporation (Landover) to list the property.  It didn’t sell right away and Landover added an aerial photograph of the property to the Internet with incorrectly drawn boundary lines.

No one offered to buy the property for about two years before it was noticed that the aerial photograph was inaccurate.  Mr. Boguch eventually hired another company to list the property and sold it for substantially less than he had asked.  Mr. Boguch sued Landover because he believed that their negligence in putting the wrong image up had made it impossible to sell at a higher price.

The trial court had dismissed Mr. Boguch’s claims on summary judgment because he did not bring forth evidence showing that Landover’s negligence had actually caused the property to be unsellable at the higher price.  The Court of Appeals affirmed, but held that attorney fees for Landover were only available for claims that Mr. Boguch brought under the contract for listings services.  The tort claims (for allegedly breaching the duties of real estate agents) were not subject to attorney fees.

Posted in Attorney's Fees and Costs, Contracts, Division I, Judge Anne Ellington - Concur in Majority, Judge Stephen J. Dwyer - Draft Majority, Judge Susan R. Agid - Concur in Majority, Tort, WA Court of Appeals | Leave a Comment »

Washington Legal Roundup – Division I

November 24, 2009

State v. Thompson

James and Judith Thompson exploited a vulnerable older woman named Shirley Crawford by stealing all of her money to the tune of about $500,000.  They also made a videotape of Ms. Crawford reading a declaration they had written for her in which Ms. Crawford claimed that she was aware that they had taken her money and they approved it.  This was done on the eve of a hearing to appoint a guardian for Ms. Crawford.

The Thompsons were convicted of theft and witness tampering because they coerced an elderly woman with dementia to agree to testify that it was her desire to turn over all of her assets (less the $17 left in her estate) to them.  The Court of Appeals affirmed, holding that there was sufficient evidence that Ms. Crawford suffered from dementia and lacked the capacity to sign the two powers of attorney she executed or “testify” on the videotape regarding her intentions and that the Thompsons knew it.

The Court of Appeals also determined on the state’s cross appeal, that the Thompsons were required to pay a $100 DNA collection fee under a 2008 statute making payment of the fee mandatory “regardless of hardship.” 

Posted in Criminal Law, Division I, Judge Anne Ellington - Concur in Majority, Judge Mary Kay Becker - Draft Majority, Judge Ronald Cox - Concur in Majority, Sentencing, WA Court of Appeals | Leave a Comment »

Washington Legal Roundup – Division I

September 15, 2009

Ripley v. Lanzer

Oh boy.  Lots of goodies.  William Lanzer, M.D., an orthopedic surgeon was performing surgery on Katherine Ripley’s left knee.  At the end of the procedure, no one could find the number 7 blade from the scalpel used to perform the surgery.  Believe it or not, it had fallen off and lodged inside Ms. Ripley’s knee.  Eventually, the doctor and hospital staff discovered the location of the blade, but having had a tourniquet on her leg for too long, they had to go back in searching for the blade.

There were arguments at trial about whether medical testimony was required to determine whether Dr. Lanzer had been negligent by dropping a blade in his patient, leaving it there, stitching her up and then having to go back in to get it out.  In comes the doctrine of res ipsa loquitur, a Latin phrase which, loosely translated, means “the thing speaks for itself.”  The Court of Appeals held that the doctrine of res ipsa applied based on precedent and common sense, which suggests that stuff doesn’t end up left inside someone’s body in the absence of some kind of mistake.

The Court of Appeals reversed summary judgment against the Ripleys, but affirmed summary judgment against the hospital.  Interestingly, the Court of Appeals determined that medical testimony was required and that res ipsa did not apply as against the hospital, also a defendant.

Posted in Division I, Judge Ann Schindler - Concur in Majority, Judge Anne Ellington - Concur in Majority, Judge Ronald Cox - Draft Majority, Medical Malpractice, Res Ipsa Loquitur, Tort, WA Court of Appeals | 1 Comment »

Washington Legal Roundup – Division I

September 11, 2009

State v. White

Jarray White was convicted of assault and a felonious violation of a no contact order when he punched his ex girlfriend in the face.  At trial, the ex girlfriend was the only eyewitness to the alleged crimes. 

When called to testify, she indicated that she would not do so because doing so may have required her to waive her Fifth Amendment privilege against self-incrimination.  The trial court immediately closed the courtroom to conduct an in camera proceeding to determine the basis of the Fifth Amendment claim.

After conferring with counsel, the ex girlfriend decided to testify and the court was immediately reopened.

On appeal, Mr. White claimed that closure of the courtroom was unconstitutional without findings on the record that there was a compelling need to do so and no better alternative.  The Court of Appeals confirmed that closure of the courtroom is generally impermissible, but that because no proceedings had taken place while the courtroom was closed, there was no constitutional violation under State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).

Posted in Constitutional Law, Criminal Law, Division I, Judge Anne Ellington - Concur in Majority, Judge J. Robert Leach - Concur in Majority, Judge Marlin Applewick - Draft Majority, Sentencing, WA Court of Appeals | Leave a Comment »

Washington Legal Roundup – Division I

July 25, 2009

Personal Restraint Petition of Spires

Stanford Spires was convicted of unlawful issuance of bank checks in 1992.  He was sentenced to 13 months in prison and ordered to pay legal financial obligations (LFOs).  He owed some $9,000 in restitution, which was never paid.

The State attempted to enforce the LFOs in 2007.  The Court of Appeals held that under the restitution statute, the State only had 10 years to enforce the LFOs.  Since more than 10 years had passed, the Court of Appeals determined that the State had no authority to enforce them.

Note to State: Don’t wait around to enforce court orders.

Posted in Criminal Law, Division I, Judge Anne Ellington - Concur in Majority, Judge Mary Kay Becker - Concur in Majority, Judge Ronald Cox - Draft Majority, WA Court of Appeals | Leave a Comment »

WA Legal Roundup: Division I

July 14, 2009

State v. Coucil

Nikeemia Coucil was arrested, charged with threatening to kill a man and released on bail.  He failed to appear at a hearing on the charge.  He was rearrested and charged with bail jumping.  He was convicted of both the harassment and bail jumping charges.  On appeal, he claimed that because the underlying crime was a misdemeanor, it was inappropriate to be charged and sentenced for felony bail jumping.

The Court of Appeals rejected this, stating that the purpose of the bail jumping statute was not to add an additional sanction for the underlying offense, but to “compel appearances at criminal hearings.” 

Posted in Criminal Law, Division I, Judge Anne Ellington - Concur in Majority, Judge C. Kenneth Grosse - Concur in Majority, Judge Stephen J. Dwyer - Draft Majority, WA Court of Appeals | Leave a Comment »

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