The Right to Appeal – Use it or Lose it: Immediately Appealing the Denial of a Motion to Compel Arbitration in Washington State Courts

When a party to a lawsuit makes a motion to compel arbitration and loses, the Rules of Appellate Procedure (RAP) do not expressly provide that party with a right to immediately appeal the trial court’s order. But such a right does exist. The Washington Court of Appeals has repeatedly held that such an order should be deemed a “decision affecting a substantial right … that in effect … discontinues the action” within the meaning of RAP 2.2(a)(3). Thus, the order denying arbitration is appealable as a matter of right, and is not the subject of discretionary review. But that right comes with a cost. A party who does not immediately appeal such an order, but rather acquiesces to the lawsuit, will likely waive its ability to appeal the issue following a final judgment. In short, Washington litigants have a right to immediately appeal a trial court’s order denying a motion to compel arbitration, and they must use it or lose it. View full article.

This article appeared in the June 2009 issue of Washington State Bar News, the official publication of the Washington State Bar Association.

Washington Appeals Court Rules No Coverage for Property Damage Caused by Leaking Underground Tanks After Insurance Policies Expire

Last week, the Washington Court of Appeals upheld the denial of insurance coverage for property damage caused by a release of gasoline from an underground storage tank (“UST”). In Walla Walla College v. Ohio Casualty Ins. Co., a panel in Division Three of the Washington Court of Appeals ruled that there was no insurance coverage for damage to property that occurred ten years after the USTs were improperly installed and eight years after the insurance policies expired. View full article (PDF).

Lane Powell Helps WHCA Win Significant Victory in Federal Court Challenge to Washington Boarding Home Law

On January 14, 2009, the United States District Court for the Western District of Washington struck down portions of RCW 18.20.440 as unconstitutional in Washington Health Care Association v. Robin Arnold-Williams, et al., No. 3:08-cv-05427-RJB. As a result of this ruling, any boarding home with a Medicaid contract signed before March 28, 2008 who wants to avoid the Medicaid “lock in” provisions of RCW 18.20.440 should either terminate their current Medicaid contract or refuse to renew the contract when it expires. View full article (PDF).

Ledbetter Fair Pay Act Expands the Time Period for Employees to Raise Pay Claims

Considered a top priority for labor and women’s rights groups, President Barack Obama just signed the Lilly Ledbetter Fair Pay Act of 2009 (“Act”) into law today, January 29, 2009. The Act was passed by both houses of Congress as a direct response to the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which restricted the time period in which employees could file a discriminatory compensation lawsuit. View full article (PDF).

Where the Insured Alleges only “Procedural” Claims-Handling Violations Proof of “Actual Harm” Required, and Remedies Limited

On 26 November 2008, the Washington Supreme Court issued its decision in St. Paul Fire and Marine Ins. Co. v. Onvia, Inc., concerning an insured’s standing to sue for bad faith and violations of the Washington Consumer Protection Act (“CPA”) where the insurer properly denied defense and indemnity, but violated Washington claims-handling regulations concerning the timing of communications with the insured. The Court held that the insured could maintain a claim for improper claims-handling in the absence of a duty to defend or indemnity, but refused to apply a presumption of harm, and limited the remedies available. View full article (PDF).

Don’t let the economy force your litigation strategy

As business slows, pressure builds inside businesses to protect their own bottom line; employees feel vulnerable and act defensively to protect their own jobs. This leads to increased pressure on the other side of a deal and a sharp increase in lawsuits. View full article (PDF).

Expanding The Duty To Warn In Wash. Liability Cases

In Simonetta v. Viad Corp. et al. and its companion case, Braaten v. Saberhagen Holdings Inc., et al., the Washington Supreme Court will soon determine whether the Court of Appeals correctly found that a manufacturer may owe a duty to warn of dangers posed by products made, sold and installed by others but used in conjunction with the manufacturer’s product. View full article (PDF).

This article was originally published in the Law 360 Product Liability Newswire.

Northern District of California Recognizes Limited Protection for Work Product of Trial Consultants

In only the second federal court decision to consider the issue, the Northern District of California in Hynix Semiconductor Inc. v. Rambus Inc., 2008 WL 397350 (ND Cal, February 10, 2008) held that the work-product doctrine limits the extent to which witnesses may be cross-examined on how they prepared for trial, including preparation conducted by a jury consultant. View full article (PDF).

This article first appeared in the Oregon Association of Defense Counsel’s Summer 2008 newsletter.

‘Scheme liability’ can put professional firms at risk

As the developing “credit crunch” places more businesses under financial stress, and as the investors in these businesses grow restless, Oregon firms that provide financial and related services to those businesses should be watchful. View full article (PDF).

This article first appeared in the Portland Business Journal.

Alaska Supreme Court Unanimously Affirms Trial Court Award of Overtime Pay, Prejudgment Interest, Penalties and Attorneys’ Fees to Incorrectly Classified Employee

A recent unanimous Alaska Supreme Court decision, Geneva Woods Pharmacy Inc. v. Thygesen, Opinion No. 6255 (April 25, 2008), serves as a reminder to employers of the financial risks of improperly classifying employees as “exempt” from state or federal overtime pay requirements and of failing to maintain accurate records of hours worked for nonexempt employees. Properly classifying employees can be especially tricky where, as in Geneva Woods Pharmacy, an employee is properly classified as exempt under federal law, but is nonexempt under state law. View full article (PDF).

Supreme Court Rejects “Scheme Liability” in Section 10(b) Securities Cases

In a widely-anticipated decision, the Supreme Court yesterday refused to expand the implied private right of action for securities fraud under Section 10(b) to include investor claims for so-called “scheme” liability against those who advise or do business with securities issuers. In Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., No. 06-43 (U.S. January 15, 2008), the Court held that Section 10(b) does not permit investors to recover from a “secondary” party that allegedly participates in a fraudulent scheme with an issuer, unless that party violates a duty to disclose in doing so, or the investors relied on that party’s public misstatements or acts. View full article (PDF).

Definition of ‘wrongful termination’ gets narrower

The Oregon Court of Appeals narrowed the circumstances under which an employer may be liable for wrongful discharge in an opinion issued Dec. 5 in Lamson v. Crater Lake Motors. This is good news for employers.  View full article (PDF).

This article first appeared in the Portland Daily Journal of Commerce.

A Ray of Hope for Washington Insurance Defense Law

Insurance companies in Washington are still allowed to make good-faith mistakes. On November 15, 2007, the Honorable Ronald B. Leighton of the U.S. District Court for the Western District of Washington held that an insurance company’s good-faith mistake is not enough to turn a $25,000 insurance policy into a $2 million bad faith claim. Judge Leighton granted full summary judgment to defendant Sentry Insurance in the matter of Taylor v. Sentry Group of Companies, et al., No. C06-5497RBL. The victory for Sentry is one piece of good news for insurance companies in Washington, which have faced a series of tough judicial and legislative decisions in recent months. View full article (PDF).

Drafting Employee Non-Competition Agreements With a Litigation Perspective

A litigator attempting to enforce a non-competition agreement against an employee is stuck with a document that may have been negotiated years before. Provisions which pleased the client when the agreement was drafted because of restrictions placed on the employee, may stand in the way of obtaining meaningful relief against the employee in court. While options may be limited at the time of litigation, when the non-compete is drafted and negotiated, the lawyer has a clear slate to create a document and make a record that will facilitate enforcement. View full article (PDF).

This article first appeared in the Spring 2007 issue of Business Litigation Committe Newsletter.

Reducing Condominium Developer Liability

With condominium lawsuits surging, knowledgeable preparation can prevent builders from becoming litigation targets. View full article (PDF).

This article first appeared in BUILDERnews Magazine.

Aligning Interests: New Tools for Assessing Litigation’s Risks

When a business problem lands in court, the businessperson is in unfamiliar territory, and often relies on the lawyer to assess the risk involved. But the method that litigators traditionally use to assess risk is narrower and more limited than the methods a businessperson often uses to deal with uncertainty. New and improved methods can help the businessperson and the lawyer better communicate about risk assessment. View full article (PDF).

New Court Decision Presents Challenges to Defending Neglect Cases Under Washington’s Vulnerable Adult Statute

Washington’s Abuse of Vulnerable Adult Statute (“VAS”), RCW 74.34 et seq., was first passed in 1984. It was amended in 1999 and the legislature specifically announced its intent to protect “vulnerable adults.” “Vulnerable adults” include those age 60 and older who are unable to care for themselves due to physical, mental and/or a functional limitation. The VAS is intended as an “additional remedy” to those already available under Washington law, such as a medical malpractice suit. Thus, the VAS creates an independent cause of action for the “abuse,” “neglect,” “abandonment” and/or “financial exploitation” of a “vulnerable adult.” View full article (PDF).

What the Plaintiffs’ Bar Is Saying About Long Term Care and Senior Housing

Members of Lane Powell’s Long Term Care and Senior Housing practice group recently attended national seminars sponsored by both plaintiff and defense attorney associations. Somewhat surprisingly, there is an emerging degree of consensus between these opposite groups with respect to important litigation issues involving personal injury and wrongful death suits against both skilled nursing and assisted living facilities. View full article (PDF).

ERISA Fiduciary Claims – Planning, Protecting, and Preparing for Class Actions

ERISA class actions are significant exposures for any company. With the new trend of more ERISA claims, preparation now makes sense. Reviewing for compliance, and having a ready-made approach to a class action suit can lower corporate exposure and alleviate litigation expenses. View full article (PDF).

Nursing Home Litigation: Avoid Twelve Angry Jurors

Enormous jury verdicts against nursing homes for injury and death damages have become too numerous to blame on an isolated runaway jury or two. It’s interesting to note that some typical driving factors for large damage awards are missing from these cases. That is, things like lost earnings, life expectancy and extent of disability are not usually at issue with an elderly resident of a nursing home. View full article (PDF).

This article appeared in the September 2005 issue of Oregon Business Magazine in a special section titled, “Oregon Business Law Journal: Oregon attorneys offer legal advice for business leaders.”