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RECENT CASES
07/01/2010
Victoria Pond and Steve Goldstein won a First Amendment appeal in a recently published decision, Rentz v. Werner, that clarifies the scope of the religious organizations' immunity from review by civil courts in Washington.
12/11/09
Dana Henderson Wins Employment Case
Dana Henderson recently succeeded on a motion for summary judgment in a wrongful termination case where the employee claimed violations of the Washington Law Against Discrimination and breach of contract for failure to adhere to the terms of the employee handbook. The court found no evidence whatsoever of discrimination and that the terms of the employee handbook did not create a contractual obligation on the part of the employer, and in any event, such terms were not breached. All claims against BPM's client, the employer, were dismissed with prejudice.
11/04/09
Joe Hampton and Dan Syhre win 9th Circuit Bad Faith Appeal for Insurer
BPM Insurance Coverage Practice Group lawyers Joe Hampton and Dan Syhre recently prevailed in a personal injury protection ("PIP") bad faith case pending in the U.S. 9th Circuit Court of Appeals. The plaintiffs alleged that the plaintiff wife was paralyzed as a result of a delay in having surgery, caused by BPM client State Farm Mutual Automobile Insurance Company. In September, 2008, Joe and Dan won a summary judgment disimssing all claims in the U.S. District Court. Plaintiffs then appealed to the 9th Circuit. The case was argued before a panel of the appellate court in mid-October of this year. On November 4, 2009 the 9th Circuit affirmed. The court held that the PIP coverage in question did not impose a duty to preapprove proposed treatment, there was no bad faith, and there was no violation of Washington's Consumer Protection Act. Sadler v. State Farm Mut. Auto. Ins. Co., 2009 WL 3634206 (unpublished).
11/03/09
BPM Wins a Defense Verdict
On November 3, 2009, BPM won a defense verdict on behalf of a Shipper in the U.S. District Court for the Western District of Washington. The matter involved a longshoreman who was injured at the Port of Tacoma when an ocean shipping container, in tow behind the power unit he was operating, overturned. The Shipper had loaded the container with bundles of stacked lumber planks. The longshoreman sued the Shipper claiming that the container overturned because its cargo had not been properly stowed. His attorneys asked the jury for an award of over $1.3 million in special and general damages. Based on expert testimony developed by the BPM defense team, the jury found that the Shipper had committed no negligent act in loading the container. On that basis, the longshoreman’s claim was dismissed pursuant to a defense verdict.
07/09
John Braislin and James Nelson Obtained Favorable Outcome at Mediation
In City of Seattle v. West Marine, John Braislin and James Nelson represented the owners of real property near South Lake Union that the City condemned to widen Mercer Street to ameliorate the celebrated “Mercer Mess.” The owners mounted an aggressive constitutional challenge to the trial court’s declaration of public use and necessity based upon the City’s refusal to disclose the source and use of $30 million of private funding, and the Washington Supreme Court accepted direct review. The City settled for $8.45 million (which exceeded its $6.63 million appraisal by 27 percent). The tenant then demanded $3 million of the $8.45 million proceeds as compensation for its leasehold interest, but the arbitrator awarded it only $596,374.
07/09
Dana Henderson Wins on Summary Judgment
Dana Henderson recently won a declaratory judgment of no coverage in favor of an insurance company client. The underlying claim arose out of a dispute over use of an easement, and Ms. Henderson succeeded in obtaining a dismissal of the insurance coverage claims on the basis that there was no "property damage" or "occurrence" as those terms were defined under and required by the policy, and further, that the policy excluded coverage for disputes related to planning or zoning.
07/09
Christopher Tompkins Obtains Summary Judgment
Christopher W. Tompkins recently obtained summary judgment dismissing BPM's clients in a legal malpractice action. In the underlying matter, BPM's clients withdrew as the plaintiff's attorneys within the statute of limitations. The plaintiff never filed a lawsuit against the tortfeasor. The plaintiff then claimed that his failure to file suit against the tortfeasor was because BPM's clients advised of the wrong statute of limitations. The court dismissed plaintiff's malpractice lawsuit, agreeing that the plaintiff's conversations with an attorney after BPM's clients withdrew broke the chain of causation.
05/09
Steve Goldstein and Dana Henderson Win Summary Judgment
Steve Goldstein and Dana Henderson recently won a hotly-contested summary judgment motion, dismissing all claims against BPM's client, an attorney wrongfully sued for malpractice. Plaintiff alleged that an attorney-client relationship and attendant duties were created between our client and the plaintiff because of her status as a majority shareholder of a corporation. Mr. Goldstein and Ms. Henderson argued that the attorney represented only the corporation, not its shareholders, and the court agreed, finding no attorney-client relationship existed and that there was no duty or breach of duty to Plaintiff.
05/09
Chris Tompkins Defeats Motion for Contempt
Respondent in a dissolution sought invoices for petitioner's attorney fees by subpoena. Petitioner's attorney responded with copies of her billing file. After petitioner's attorney withdrew, petitioner and respondent began to cooperate on a number of matters. Petitioner claimed that the bills provided to respondent by her former attorney were not the same as the bills she had received, and respondent brought a motion for contempt against petitioner's prior attorney, claiming that she had falsified the bills provided to respondent in response to the subpoena.
After significant investigation to determine what had occurred, and the preparation of multiple declarations, Mr. Tompkins was successful in defeating the motion for contempt.
03/06/09
Brandon Carroll Defeats Summary Judgment
BPM's client, a general contractor, was sued for breach of contract after a landslide near our project. A subcontractor, a geotechnical engineer, moved for summary judgment claiming that the scope of its engagement was limited and that there was no evidence of breach. Mr. Carroll argued on behalf of the general contractor that the service agreement was not fully integrated and that the landslide was due to the geotechnical engineer's breach. Ruling in our client's favor, the court found that there were genuine issues of material fact in dispute as to the scope of the subcontractor's engagement and whether the geotechnical engineer breached its professional service agreement.
02/09
Christopher Tompkins Wins in Washington Supreme Court
Christopher Tompkins recently won in the Washington Supreme Court, successfully arguing that the plaintiff could not sustain a claim for violation of the Consumer Protection Act ("CPA"). Plaintiff requested that our client's periodontist use human bone graft instead of cow bone graft for a dental procedure. The periodontist ran out of human bone graft mid-procedure and used some cow bone graft in order to finish.
The Court held that the plaintiff could not establish a CPA violation because she could not show that the periodontist had an entrepreneurial motive to use cow bone graft to finish the procedure, and therefore could not establish that the activity occurred in trade or commerce. The Court also held that the use of the cow bone graft did not impact the public interest. The Court reversed the Court of Appeals, Division II, and affirmed the trial court’s summary judgment dismissal of BPM's client. Michael v. Mosquera-Lacy, Supreme Court No. 80665-9.
11/08
Victoria Pond Wins on First Amendment Issue
Victoria Pond recently obtained a complete victory on behalf of the ecclesiastical head of a church based in Seattle. The ecclesiastical head had been sued by former church members, who postured their claims as secular in nature. Ms. Pond persuaded the court that these apparently secular claims would actually entangle the court in questions of religious doctrine, and were therefore barred by the First Amendment. Steve Goldstein, James Nelson, and Chris Tompkins contributed to this victory. Plaintiffs have noticed their intent to appeal the trial court's dismissal of their claims.
09/08
Summary Judgment Obtained in Favor of Client
James Nelson recently obtained summary judgment in favor of their client in Marshalltown Company v. Sole, Personal Representative of the Estate of John C. Williams. The company wanted to repurchase its stock currently held by the estate. The stock has been valued at $4.5 million. The company was seeking a judgment that under the terms of the shareholder's will, it was required to pay only about $1.5 million. BPM's lawyers succeeded in defeating that motion and prevailed on a cross-motion establishing that the company's valuation approach could not have been the shareholder's intent when he drafted his will.
09/08
James Nelson and Victoria Pond Win in Court of Appeals
James Nelson and Victoria Pond recently won a victory in the Court of Appeals in Grand View Homes L.L.C. v. Cascade Testing Laboratory, Inc. The case involved an issue of first impression: can written construction inspection reports meet the requirements of RCW 4.16.040(1) and trigger the six year limitation period? The trial court held that they cannot, since the reports show work that was done, but fail to contain the essential term of the promise of work that is supposed to be done. Because the disparity between what is supposed to be done, and what is actually done, is essential to a claim for breach of contract, the trial court held these writings could not satisfy the statute. On appeal, Mr. Nelson succeeded in persuading the court that documents that were incorporated by reference in the inspection reports, including the Uniform Building Code, and the structural plans, contained the promise of what was to be done.
08/08
Successful Motion for Partial summary Judgment
Dana Henderson and Brandon Carroll have succeeded on a Motion for Partial Summary Judgment dismissing parents' personal claims under Phillipides v. Bernard, 151 Wn.2d 376 (2004) for personal injuries to their adult, developmentally disabled child. In their case, the parents argued that they were entitled to their own emotional distress damages as a result of their child's injuries, but the court adhered to the ruling in Phillipides, and limited damages to the child's own injuries.
Ryan Foltz Prevails on Summary Judgment
Ryan Foltz recently won a motion for partial summary judgment in an insurance coverage case. By prevailing on this motion, he successfully reduced the amount of the claim against his client by half.
Steve Goldstein Wins Case By Proving Fraud on Court
Steve Goldstein recently prevailed on a motion to dismiss, after establishing that plaintiff fabricated critical evidence in her case in chief. Plaintiff claimed that she was subjected to workplace sexual harassment and was fired in retaliation when she complained. In actuality, she was fired for falsifying her timesheets. To support her retaliation claim, plaintiff relied upon an invoice for work performed on her vehicle to show that the vehicle observed by her employer at her home during work hours, was actually in the shop being detailed. After defendants' extensive investigation into the document’s authenticity, plaintiff tried to avoid dismissal by moving to exclude the evidence altogether via a motion in limine. This attempt failed. At a hearing ordered by the court, a number of witnesses offered live testimony which established that the invoice was fraudulent, the work was never completed as alleged by plaintiff, and that the invoice was created by the shop owner as a “favor” to the plaintiff’s husband, who was a very close friend. As a result, the court dismissed all claims finding that plaintiff was not only complicit in the evidence fabrication, but that she was actively involved in hiding the truth of its creation from the court, and had attempted to defraud the court. The judge dismissed all claims against our clients, ruling that he would not allow plaintiff access to the court system after such a blatant attempt to perpetrate a fraud on the court.
03/26/2008
S. Karen Bamberger and Dana A. Henderson Win Summary Judgment
S. Karen Bamberger and Dana A. Henderson recently won a summary judgment motion on behalf of a landowner in a premises liability case. The court dismissed all claims against their client, finding as a matter of law that the premises were maintained in a safe condition.
02/28/2008
Joseph D. Hampton and Daniel L. Syhre in Washington Supreme Court
On February 28, 2008, Joseph D. Hampton and Daniel L. Syhre appeared in the Washington Supreme Court for oral argument in the case St. Paul Fire and Marine Insurance Co. v. Responsive Management Systems. The case concerns extracontractual claims against a liability insurer. Joe and Dan are representing St. Paul in the matter.
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