Wash. State Dep’t of Corrections v. Madsen
Madsen was convicted of his crime. He then committed two community custody violations. A statute was then passed (and later appealed) which provided that three community custody violations sent you back to prison for the rest of your term in total confinement. However, because it was passed after his conviction, it imposed a harsher sentence. That violates Ex Post Facto.
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.”
Charles Hartzell and Jeremy Tieskotter were convicted of armed assault and unlawful possession of a firearm used to shoot into an apartment occupied by a woman and her daughter. Police had tracked them down after witnesses saw two people shooting out of the sunroof of a red car, recovered bullet fragments in the apartment wall and found the weapon that had fired the shots near a car with a bullet hole also matching the gun.
On appeal, Messrs. Hartzell and Teiskotter argued that the K-9 dog that was used to “sniff” next to the car to obtain the scent of the gun had conducted an unreasonable search without a warrant under article I, section 7 of the Washington Constitution. The court of appeals determined that this argument did not pass the “smell test.” Even though law enforcement cannot use artificial means to search from outside a place where a person has an expectation of privacy, a dog “sniff” that occurs in an area where a person does not have an expectation of privacy, and that is minimally intrusive is OK. The dog had “sniffed from a lawful vantage point.”
Hartzell and Tieskotter also argued on appeal that evidence of having previously fired the gun in question should not have been admitted under ER 404(b). That argument didn’t pass the smell test either, because that evidence was not offered that the defendants had a propensity to engage in gun crimes, but as circumstantial evidence that it had been those two, found with the same gun shortly thereafter, who had fired the gun earlier.
The court also rejected the argument of Mr. Hartzell that the court allowed prejudicial evidence regarding a prior crime in Thurston county because Mr. Hartzell, who was representing himself, opened the door, after a warning from the trial court, to evidence of that conduct during his cross examination of one of the police detectives.
The Court of Appeals also determined that the jury instructions were proper and that the state’s closing argument did not deny Mr. Hartzell a fair trial.
The Court of Appeals also determined that a firearm enhancement was appropriate under Blakely and that cumulative error as a basis for relief was not available.
The Court of Appeals did remand for resentencing because there was a chance that the total sentence, including time in community custody, could exceed the maximum sentence of ten years for the charged crimes.
Note to persons seeking to represent themselves, whether they be attorneys or lay persons, whether they be involved in criminal or civil matters: A man (or woman) who represents himself in court has a fool for a client (and a fool for a lawyer).
Charles Hartzell and Jeremy Tieskotter were convicted of armed assault and unlawful possession of a firearm used to shoot into an apartment occupied by a woman and her daughter. Police had tracked them down after witnesses saw two people shooting out of the sunroof of a red car, recovered bullet fragments in the apartment wall and found the weapon that had fired the shots near a car with a bullet hole also matching the gun.
On appeal, Messrs. Hartzell and Teiskotter argued that the K-9 dog that was used to “sniff” next to the car to obtain the scent of the gun had conducted an unreasonable search without a warrant under article I, section 7 of the Washington Constitution. The court of appeals determined that this argument did not pass the “smell test.” Even though law enforcement cannot use artificial means to search from outside a place where a person has an expectation of privacy, a dog “sniff” that occurs in an area where a person does not have an expectation of privacy, and that is minimally intrusive is OK. The dog had “sniffed from a lawful vantage point.”
Hartzell and Tieskotter also argued on appeal that evidence of having previously fired the gun in question should not have been admitted under ER 404(b). That argument didn’t pass the smell test either, because that evidence was not offered that the defendants had a propensity to engage in gun crimes, but as circumstantial evidence that it had been those two, found with the same gun shortly thereafter, who had fired the gun earlier.
The court also rejected the argument of Mr. Hartzell that the court allowed prejudicial evidence regarding a prior crime in Thurston county because Mr. Hartzell, who was representing himself, opened the door, after a warning from the trial court, to evidence of that conduct during his cross examination of one of the police detectives.
The Court of Appeals also determined that the jury instructions were proper and that the state’s closing argument did not deny Mr. Hartzell a fair trial.
The Court of Appeals also determined that a firearm enhancement was appropriate under Blakely and that cumulative error as a basis for relief was not available.
The Court of Appeals did remand for resentencing because there was a chance that the total sentence, including time in community custody, could exceed the maximum sentence of ten years for the charged crimes.
Note to persons seeking to represent themselves, whether they be attorneys or lay persons, whether they be involved in criminal or civil matters: A man (or woman) who represents himself in court has a fool for a client (and a fool for a lawyer).
If you subdivide and sell your property, but do not conform to local subdivision laws, a purchaser of the subdivided land may elect either to (1) rescind the sale or (2) recover damages. In this case, the trial court held and the Court of Appeals agreed that the aggrieved seller did not have the right to restrict further development of the unsold land.
Joshua Harris pleaded guilty to driving while license suspended and operating a vehicle without an ignition interlock devise. Both are misdemeanors. He was sentenced to two consecutive 90 jail sentences. While awaiting sentencing, he spent 140 days on electronic home monitoring. He asked to receive credit for the that time.
The Court of Appeals held that Mr. Harris was not entitled to credit for the time on home monitoring. Had the crimes been felonies, he would have been but the appellate court said that the purposes of the statutes were different and did not violate the Equal Protection Clause of the constitution.
Note to criminals: If you want credit for time served on electronic monitoring, make sure you commit a felony.
Back in May of 1998, a big group of kids from Lake Washington High School arranged to have a kegger at Kachess State Park. The party was arranged by and for high school seniors. Glen Anderson, who was then a junior, showed up at the party. Another kid at the party hit Mr. Anderson in the forehead with a heavy glass beer mug. He suffered a head injury, went into a coma and died 4 years later after having been in a persistent vegetative state during that period.
Mr. Anderson’s mom, Hazel Cameron, sued a bunch of people from the party as well as a beer distributing company and the adults that got the beer for the party. The defendants (other than the person that actually assaulted Mr. Anderson and caused his death) moved for summary judgment, which was granted.
Ms. Cameron had argued that the court should allow the jury to determine whether it was foreseeable that a group of teenagers that were provided with an unlimited supply of alcohol in a remote location without supervision would engage in violent behavior.
The Court of Appeals determined that the common law required Ms. Cameron to show that the entities providing the alcohol had reason to know that the assailants had violent tendencies under Christen v. Lee, 113 Wn.2d 479, 780 P.2d 1307 (1989). Query whether the Court of Appeals has read Lord of the Flies recently.
Ms. Cameron also argued that the statutes prohibiting providing alcohol to minors was designed to protect minors from the consequences of alcohol-related injury.
The Court of Appeals said no to this argument too, holding that statutes prohibiting sale of alcohol to minors were only designed to protect minors from negligent acts arising out of use of alcohol by minors. In so doing, the Court distinguished Schooley v. Pinch’s Deli Market, Inc., 134 Wn.2d 468, 951 P.2d 749 (1998).
Sorry mom. While illegal, there are apparently no civil remedies available to parents whose kids are assaulted after adults have provided lots of alcohol to a large group of teenage boys.
Note to Supreme Court: Is this really the result you intended when you wrote Schooley? You don’t really have to be a child psychologist to know what drunk teenage boys (and girls, for that matter) are capable of doing without supervision, do you?
The City of Seattle charged Clinton Wilson with misdemeanor assault under city ordinance after he was cited for failing to yield the right of way to a bicyclist. Mr. Wilson ended up colliding with and killing the bicyclist.
The Court of Appeals held that because the City did not need to prove that Mr. Clinton had the intent to commit the infraction (i.e., did not need to establish Mr. Clinton’s mens rea) and because the state legislature decriminalized most traffic offenses in 1978, the city ordinance violated state law.
Elliot v. Dept. of Labor & Indus.
James Elliot was a construction worker. One day, a fellow worker fell through a hole in a ceiling directly above him. The fellow worker landed on his head on concrete about ten feet from Mr. Elliot and died.
Mr. Elliot initially thought he was OK, but then started feeling guilty for having not complained about safety violations on the construction site. He was also unwilling/unable to work at heights. He was fired, became depressed, started drinking and using drugs. He then went through rehab and was diagnosed with PTSD.
14 months after the death, he filed a claim for worker’s compensation benefits. The Department denied the claim because there is a one year statute of limitations for filing claims for injuries. The Board affirmed as did the Superior Court. So did the Court of Appeals. Harsh.
The legal issue was weather a “discovery rule” applied in the context of worker’s comp claims. Mr. Elliot was not aware that he was “injured” until well after he witnessed a co-worker fall on his head next to him. His life spiraled out of control after he was fired.
The Court of Appeals simply said that under the worker’s comp statute, the triggering event is the incident giving rise to the injury, not the discovery of the injury itself. The Court also said that that Mr. Elliot’s claim did not arise out of an “occupational disease” to which a longer statute of limitations arose. Harsh.
Note to Legislature: Fix this statute. The worker’s comp statute was designed to be a safety net for workers who are injured on the job without regard to fault. There was no safety net for Mr. Elliot
In Washington, people buy auto insurance. There are a variety of different kinds of auto insurance and people buy different varieties of insurance for a variety of reasons. One kind of coverage people often buy is called Personal Injury Protection, or PIP. PIP is a form of no fault coverage that pays for the cost of medical expenses a person incurs as a result of being injured in a car crash. Theoretically, PIP pays your medical bills whether the crash was your fault, the fault of someone else or a combination. There’s a catch. If someone else is determined to be at fault, the insurance company that paid PIP benefits may be entitled to be paid back for what they’ve paid for your care.
In Washington, we have a system of comparative fault. In other words, Washington law recognizes that harm can be caused by more than one person. Washington law requires a jury to determine what percentage of “fault” is attributable to every person that caused harm to happen.
In Washington, there is a public policy favoring full compensation for injuries. In other words, the civil justice system is designed to make a person “whole” by requiring someone that causes injury to another to pay money damages for all the harms and losses they cause. If I hurt someone, I am obligated to pay for all of harms and losses I cause that person. That’s one reason I have insurance. I know that I’m capable of making a mistake while driving. If I make a mistake and I hurt someone, I want my insurance company to pay for the harms and losses I caused. If they other person is partially responsible for causing their own harm, I am only required by law to pay for the harms and losses that were my fault.
Here’s where it gets tricky. If a jury decides that the other person was partly responsible for their own injuries and I am only legally obligated to pay a percentage (i.e., less than 100%) of the other person’s damages, the other person cannot be made whole. In that situation, the other person is not required to repay their insurance company for the PIP benefits the insurance company paid. That’s what the Supreme Court said in Sherry v. Financial Indemnity Co., 160 Wn.2d 611, 160 P.3d 31 (2007). Insurance companies were not happy.
Here’s where it gets even trickier. What happens where the parties settle a case before a jury gets to decide what constitutes “full compensation” or determines what percentage of fault each party bears? That’s what this case was about.
In this case, Loc Thien Truong’s insurance company, Allstate, and the insurance company of the driver he was in a crash with, PEMCO, determined that both parties were 50% at fault. Apparently, nobody cared about that because it had to do only with how much PEMCO would pay Allstate for the damage to Truong’s car.
Truong was injured in the crash and demanded that PEMCO pay $34,000.00 for his injuries. PEMCO said it only owed $2,500. Ultimately, PEMCO agreed to pay $9,347.54. Mr. Truong apparently decidrf that it wasn’t worth the delay and expense of litigation to have a jury (or arbitrator) determine what full compensation amounted to. Truong took the money.
Truong told Allstate that he was not fully compensated for his injuries. He told Allstate that he was not obligated to reimburse Allstate for the $4,172 in medical expenses. Allstate disagreed. Truong sued Allstate, claiming they were acting in bad faith. The trial court agreed with the insurance company. The trial court also said that Truong filing the lawsuit was frivolous and ordered him and has lawyers to pay about $15,000 in attorney fees.
The Court of Appeals agreed with the trial court that Truong had not proven that he was not fully compensated by the settlement but disagreed that the claim was frivolous.
Note to self: When agreeing to a settlement with a third party where there is a viable argument that my client bears comparative fault, make sure the first party carrier agrees to reduce or waive their subrogation claim before settling with the third party carrier.
Note to Supreme Court: If contemplating granting review, carefully review how the Court of Appeals decision in Peterson v. Safeco Ins. Co., 95 Wn. App. 254, 976 P.2d 632 (1999), decided before Sherry, is distinguishable (hint: look at the dollar amounts involved and remember, Sherry had not been decided yet). Also, query how an insurer can agree that their customer is 50% at fault for a crash when dealing with another insurance company, but then disavow that agreement when dealing with their premium-paying customer.
Justin P. Walsh is an Associate Attorney at Floyd, Pflueger & Ringer, P.S.
Ryan Carson is an associate attorney at Robinson & Tait, specializing in mortgage and real estate law.
