Michael S. Spearman

The case involved a challenge by Evergreen and other hospice providers to a health law judge’s (HLJ) order approving a settlement between the Department of Health and Odyssey Healthcare. The settlement granted Odyssey’s 2006 certificate of need (CN) application to provide hospice services in King County, resolving both Odyssey’s administrative appeals of the Department’s denial and its related federal lawsuit. The superior court reversed the HLJ, ruling that Evergreen had been denied a full adjudicative hearing, that the Department had acted arbitrarily by relying on post-record evidence of need, and that the HLJ had failed to verify that Odyssey met all four CN criteria. The Court of Appeals reversed, holding that the HLJ’s approval of the settlement was not arbitrary and capricious because the Department had followed statutory notice-and-comment procedures for settlements, the HLJ had discretion to consider updated need data in evaluating the agreement, and the settlement process did not require a full re-adjudication of every CN criterion.

healthcarebusiness & regulatoryprocedure

In Fowler v. Johnson, a wage dispute arose when dermatologist Amber Fowler sued her former employer, Donald Johnson, for unpaid wages (seeking double damages under RCW 49.52.070), breach of contract for spa referral fees, and related claims after Johnson failed to pay amounts she claimed were owed upon her departure. Johnson did not respond to the complaint, resulting in an order of default and a default judgment that included double damages; he later moved to vacate the default orders under CR 55(c) and CR 60(b), citing mistake and excusable neglect. The trial court initially denied the motion but on reconsideration vacated the default only as to the unpaid wages claim while also vacating it on the remaining claims, concluding it lacked authority to vacate selectively. The Court of Appeals reversed and remanded, holding that the trial court abused its discretion by applying an incorrect legal standard, as nothing prevents partial vacating of default orders on specific claims when the moving party fails to meet the White v. Holm factors for the others.

labor & employmentprocedure

In this case, King County’s Department of Development and Environmental Services issued a notice of violation against property owner Jeff Spencer and operator Ron Shear for running an organic materials processing business on farmland that the county claimed was an unauthorized use within a critical wetland and flood-hazard area. The county hearing examiner ruled that the business was a valid nonconforming use and that the county had not proved the property contained a critical area; the superior court later reversed that decision under the Land Use Petition Act. The Court of Appeals reversed the superior court, reinstated the hearing examiner’s decision, and held that the examiner’s factual findings were supported by substantial evidence and that the examiner had authority to impose conditions on the use. The court further concluded that the examiner did not exceed his jurisdiction by directing the county to process any required permits in light of those findings.

environmentpropertybusiness & regulatoryprocedure

This case was an insurance coverage dispute in which the Lake Chelan Shores Homeowners Association sued St. Paul Fire & Marine for breach of contract, bad faith, and Consumer Protection Act violations after discovering building rot in 2006 and claiming it amounted to covered "collapse" from hidden decay during St. Paul's 1996-1999 policies. The trial court granted summary judgment to St. Paul on all claims, and the Court of Appeals affirmed. The court held that the association failed to present admissible evidence of collapse during the policy periods because its experts' methodology for retroactively determining collapse conditions was not generally accepted in the scientific community under the Frye standard, and the association offered no contrary evidence on that point. The extra-contractual claims were also properly dismissed because the association had already decided to repair the buildings before tendering its claim, so any alleged investigative failures by St. Paul did not proximately cause the expenses incurred. The court further found no abuse of discretion in denying related discovery and continuance motions, as the information sought would not have led to admissible evidence.

business & regulatorypropertyproceduretorts & liability

In Davis v. Washington State Department of Labor and Industries, an injured worker who received industrial insurance benefits settled a third-party claim against an uninsured motorist carrier for a $75,000 lump sum that did not allocate any portion to general damages such as pain and suffering. The Department applied its statutory distribution formula under RCW 51.24.060 to the full settlement amount and asserted a lien for benefits paid. After the Washington Supreme Court held in Tobin that the Department cannot recover from portions of a settlement allocated to general damages, Davis sought recalculation of the distribution order to recognize some of her settlement as exempt general damages. The Court of Appeals affirmed the superior court's denial of relief, ruling that Tobin's limitation applies only to allocated settlements and that unallocated pre-Tobin settlements remain fully subject to distribution under prior precedent such as Mills and Gersema.

labor & employmenttorts & liability

In State v. Hayes, a jury convicted Cordarrel Hayes of second-degree assault after his girlfriend, Shanay Shaw, was injured during an altercation outside a nightclub; Hayes disputed the cause of her injuries and raised three main challenges on appeal. The Washington Court of Appeals affirmed the conviction, holding that Hayes had waived his constitutional right to confront witnesses by his actions and that any error in excluding letters Shaw wrote to him from jail was harmless. On the sentencing issue, however, the court remanded for resentencing because the State had not presented evidence that Hayes’s 2005 Ohio conviction was comparable to a Washington felony and could not rely solely on his failure to object. The decision rested on established confrontation-clause waiver principles, harmless-error analysis, and the precedent in State v. Hunley requiring affirmative proof of prior convictions at sentencing.

criminal lawprocedure

This case involved a dispute between Safeco Insurance Company of Illinois and Country Mutual Insurance Company over liability coverage for a driver (Kooistra) who caused a car accident while using a borrowed vehicle owned by the Parishes. Both policies extended coverage to Kooistra for the non-owned vehicle—Country Mutual through its policy on the driver and Safeco through its omnibus clause on the owners—and each contained an "other insurance" clause purporting to make its coverage excess over the other. Safeco paid the property damage claims and sued Country Mutual for pro-rata contribution after the latter refused to share costs; the trial court dismissed the suit, treating Country Mutual's policy as excess. The Court of Appeals reversed and remanded for judgment in Safeco's favor, reasoning that when two policies operate at the same primary coverage level and their excess clauses are mutually repugnant, both clauses must be disregarded, leaving each insurer liable for a pro-rata share. The court separately denied Safeco's request for attorney fees, as its equitable contribution claim did not arise from an assignment of the insured's rights.

torts & liability

In this insurance coverage dispute, Albert Boogaard, a named insured under a Comprehensive Marine Liability policy issued by International Marine Underwriters (IMU), was injured by an NSI employee while performing welding work under an Access Agreement that required him to indemnify and hold harmless NSI for personal injuries arising from his operations. Boogaard sought coverage for the liability he had contractually assumed, but IMU denied the claim under the policy's exclusion for liability assumed in a contract. The Washington Court of Appeals affirmed summary judgment for IMU, holding that the "Insured Contract" exception to the exclusion did not apply because Boogaard himself was not a "third person" to whom the assumed liability ran. The court reasoned that the exception is designed to cover an insured's assumption of a third party's liability to someone else, not an insured's own injuries stemming from his contractual assumption of another party's duties.

business & regulatorytorts & liability

The case involved James Harvey's negligence lawsuit against Richard Obermeit for injuries from a 2006 car accident. After Obermeit moved to dismiss for lack of service of process and jurisdiction, the trial court held a hearing and dismissed the case with prejudice, finding that Harvey failed to meet the requirements for substitute service under Washington's nonresident motorist statute, RCW 46.64.040, because he did not make a due and diligent effort to locate and serve Obermeit at his known address. On appeal, the court affirmed the dismissal, holding that Harvey's limited attempts at personal service and subsequent reliance on the statute were insufficient, that Obermeit did not waive the service defense by appearing or engaging in limited discovery, and that the trial court followed proper procedures in resolving the motions. The decision rested on the facts that Obermeit was a long-term Washington resident at the accident-report address, Harvey's process server made only a few unsuccessful visits, and no evidence showed evasion of service.

proceduretorts & liability

In State v. J.M., a juvenile appealed his conviction for carrying a dangerous weapon at school after a school resource officer searched his locked backpack without a warrant and found an air pistol, following the officer's observation of suspected marijuana in the student's possession. The Washington Court of Appeals affirmed the conviction, ruling that the warrantless search did not violate constitutional protections. The court held that the reasonable grounds standard applied because the SRO functioned as a school official conducting a school search, rather than requiring probable cause as for a typical law enforcement search, and that the search met this standard given the officer's direct observations and suspicions about the locked backpack.

criminal lawcivil rights

The case concerned whether the City of Kent's ordinance requiring mandatory fixed periods of vehicle impoundment for drivers arrested with suspended licenses exceeded the city's authority under state law chapter 46.55 RCW. The Court of Appeals reversed the lower courts' rulings that the ordinance was invalid, holding instead that the state statute permits municipalities to establish such impoundment periods. The core reasoning was that RCW 46.55.120(1)(a) grants cities the authority to determine the length of impoundment up to specified maximums, and the ordinance's provisions align with this statutory framework while still allowing for some officer discretion in initial impoundment decisions.

criminal lawprocedure

The case concerned a negligence lawsuit brought by the estate of William Munich against Skagit County emergency services and the sheriff's office after Munich was fatally shot by a neighbor during a 911 response to an initial report of a gun being pointed at him. The trial court denied summary judgment on the question of whether a special relationship exception to the public duty doctrine applied, and the county sought review on whether that exception requires proof that any express assurance given by the 911 operator was false or inaccurate. The Court of Appeals affirmed, holding that Washington precedent applies a three-part test for the special relationship exception that contains no such falsity requirement, and that genuine issues of material fact therefore remained for trial on the existence of a special relationship.

torts & liabilityprocedure

Brandon Afoa, an employee of Evergreen Aviation Ground Logistics Enterprises (EAGLE), was injured while operating a vehicle at Seattle-Tacoma International Airport under a license agreement between EAGLE and the Port of Seattle, leading him to sue the Port for breaching duties to provide a safe workplace under common law and the Washington Industrial Safety and Health Act. The trial court granted summary judgment to the Port. The Court of Appeals reversed, holding that the general rule and exception regarding an employer's liability for injuries to an independent contractor's employees when the employer retains control over the work apply even to license agreements, and that factual questions exist regarding the Port's supervisory authority over the manner of Afoa's work. The court also found Afoa was a business invitee and rejected application of the public duty doctrine. It remanded for further proceedings.

torts & liabilitylabor & employmentbusiness & regulatory

Citibank sued Tim Ryan to collect approximately $9,477.71 in alleged credit card debt on an account for which no signed agreement existed. The trial court granted Citibank's motion for summary judgment, but the Court of Appeals reversed and remanded. The court held that Citibank failed to meet its burden of showing Ryan's assent to the unsigned cardmember agreement, as the monthly statements and affidavit provided were insufficient under the standard from Discover Bank v. Bridges to establish mutual assent or personal acknowledgment of the account through use or payment. The decision turned on Washington summary judgment standards requiring the moving party to demonstrate the absence of any genuine issue of material fact.

business & regulatoryprocedure

Carol Mavis sued King County Public Hospital District No. 2 (d/b/a Evergreen Healthcare) for injuries sustained when she fell over a pipe in the hospital garage. She mailed a tort claim notice by certified mail with return receipt requested, which an employee signed on Saturday, January 31, 2009; she filed suit on April 3, 2009, after the 60-day waiting period she calculated under RCW 4.96.020(4). The trial court dismissed the action with prejudice, ruling that the claim was presented only on the next business day, Monday, February 2, so the suit was filed one day early. The Court of Appeals reversed, holding that the hospital district could not rely on the statute's timing requirements because it had adopted a resolution changing the designated agent for claims but failed to record the new agent's identity and address with the county auditor as required by RCW 4.96.020.

proceduretorts & liability

The case involved a 1991 land sale agreement under which the Hulberts sold property to the Port of Everett and provided a three-year indemnity for liabilities from pre-sale hazardous substances. Years later, after the Port incurred cleanup obligations under the Model Toxics Control Act, the Hulberts sued for a declaration that the agreement barred any MTCA contribution claims by the Port. The trial court granted summary judgment to the Port, ruling that the agreement did not bar post-indemnity-period MTCA actions, and the Court of Appeals affirmed, concluding that the contract showed no mutual intent to allocate MTCA liability beyond the three-year term and that no material factual disputes existed.

environmentpropertyprocedurebusiness & regulatory

In State v. Burns, the defendant entered Alford pleas to theft and forgery charges and agreed at sentencing to pay restitution for the charged crimes plus additional restitution for certain uncharged crimes, with the disputed amount for the uncharged crimes to be set at a later hearing. The State did not schedule the hearing within the 180-day period required by RCW 9.94A.753(1), and the trial court later entered an order setting over $93,000 in additional restitution after the deadline. The Court of Appeals reversed and remanded to vacate the order, ruling that the trial court had no statutory authority to determine restitution after 180 days because the amount had not been determined initially and therefore could not qualify as a modification under RCW 9.94A.753(4). The court distinguished the case from Gonzalez, where ongoing damages made the full amount undeterminable within the initial period.

criminal law

Dave Robbins Construction sued First American Title Company for breach of contract and bad faith after receiving stop-work orders on lots it had purchased and insured, because the lots were in a historical district requiring archeological surveys that the title policies had not disclosed. The trial court dismissed the complaint under CR 12(b)(6), and the Court of Appeals affirmed. The court held that preliminary title commitments create no duty to investigate or disclose matters like historical designations, that the policies only cover defects shown in defined "Public Records," and that the Washington heritage register does not qualify as such a record because the governing statute does not declare it imparts constructive notice to purchasers. The court further concluded that the historical designation did not render title unmarketable under the terms of the insurance policies.

propertyprocedurebusiness & regulatory