Selected Reported Appellate Decisions

Cunningham v. Reliable Concrete Pumping, Inc., 126 Wn. App. 222, 108 P.3d 147 (2005)
A plaintiff who failed to disclose his personal injury claim and obtained a "no asset" discharge in a prior bankruptcy proceeding will be judicially estopped from pursuing his claim, regardless of his subjective intent.

Bennett v. Dalton, 120 Wn. App. 74, 84 P.3d 265 (2004).
Affirmative claims for relief asserted between defendants by way of cross-claim must be filed within the time required under the applicable statute of limitations. The plaintiff's commencement of an action against multiple defendants does not toll the statute of limitations as to one defendant's affirmative claim for relief against another defendant.

Cochran v. Great West Casualty Company, 116 Wn. App. 636, 67 P.3d 1123 (2003).
An insured's unambiguous written waiver or selection of limits of UIM insurance is valid and enforceable; and may not be modified or avoided by use of extrinsic evidence. Furthermore, the insurer is not required to "offer" UIM coverage with the same limits of coverage as the liability portion of the policy by quoting a premium for such coverage before the insured provides a written waiver or selection of limits.

Overton v. Consolidated Insurance Company, 145 Wn.2d 417, 38 P.3d 322 (2002)
Once an insured has been notified of contamination on his property, an insured's liability for environmental cleanup does not arise out of an "occurrence," whether or not the insured is aware of a "substantial probability of liability" for the contamination.

Hough v. Ballard, 108 Wn. App. 272, 31 P.3d 6 (2001)
A driver with the "right of way" still has duty to act reasonably in light of all circumstances. Thus, although plaintiff would have had right of way at "uncontrolled intersection," he was required to exercise a heightened degree of care when approaching an intersection where street and traffic control lights were out of service during a power outage.

Country Mutual Ins. Co. v. McCauley, 95 Wn. App. 306, 974 P.2d 1288 (1999)
Motor vehicle exclusion in homeowner's liability policy barred coverage for severe injuries that resulted when the insured attempted to remove a loaded shotgun from his "all terrain vehicle" and shot his hunting partner.

DeYoung v. Providence Medical Center, 136 Wn.2d 136, 960 P.2d 919 (1998)
Eight year statute of repose for medical malpractice actions violates the Washington constitution.

Financial Indemnity Co. v. Keomaneethong, 85 Wn. App. 350, 931 P.2d 168 (1997)
The Washington UIM statute does not require an insurer to extend coverage to unrelated guest passengers.

St. Paul Fire & Marine Ins. Co. v. McCormick & Baxter Creosoting Co., 324 Or. 184, 923 P.2d 1200 (1996)
Manuscripted pollution exclusion in our client's excess policy bars coverage for costs of investigation and remediation at insured's wood treatment sites.

Beckman v. Connolly, 79 Wn. App. 265, 898 P.2d 357 (1995)
Motor vehicle exclusion in CGL policy barred coverage for injuries that resulted when insured lit cigarette in moving vehicle, which ignited gasoline fumes and caused severe injuries to passenger.

Lauritzen v. Lauritzen, 74 Wn. App. 432, 874 P.2d 861 (1994)
Defendant did not have a duty to protect the plaintiff from a random act of violence that occurred when the defendant became lost and drove into a "high crime area."

Pruneda v. Otis Elevator Co., 65 Wn. App. 481, 828 P.2d 642 (1992)
Elevator maintenance contractor does not assume a building owner's "common carrier" duty of care and need only exercise reasonable care in performing its duties.

Boeing v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 784 P.2d 507 (1990)
Response costs under CERCLA are "damages" within the meaning of CGL policy to the extent costs are "incurred because of property damage." Preventive costs incurred in advance of damage to property are not covered "damages."

Selected Class Action and Other Complex Litigation

State of Washington v. American Tobacco, et al.; Northwest Laborers, et al. v. Philip Morris, et al.; Oregon Laborers, et al. v. Philip Morris, et al.; Regence Blue Shield, et al. v. Philip Morris, et al.; Ass'n of Washington Public Hospital Dists. v. Phillip Morris, Inc. et al.
Defended an association of smokeless tobacco manufacturers in actions filed by the State of Washington, Washington and Oregon Union Trusts and 15 Blue Cross/Blue Shield health insurance companies alleging that the tobacco industry conspired to deprive them of access to information about the health risks of tobacco use in violation of "RICO," the Sherman Act and state consumer protection acts.

Cave-Woods, et al. v. Jefferson Smurfit, et al.
Consumer class action against Jefferson Smurfit alleging that the sale of its vertical strand board siding breached expressed warranties and violated states' consumer protection acts. Favorable class settlement.

White, et al. v. University of Washington, et al.
Represented the University of Washington in a class action brought on behalf of State Penitentiary inmates who participated in a consensual medical study of the effects of x-ray exposure on the male reproductive system. The class plaintiffs alleged that University investigators failed to disclose purported risks of cancer associated with the study and violated their constitutional rights. Favorable class settlement, following dismissal of a number of plaintiffs' claims on motions for summary judgment.

Mallari-Singh v. Progressive
Class of several thousand insureds sought reimbursement of attorneys fees under Mahler v. Szucs based on Progressive's recovery from third parties of personal injury protection payments made to those insureds. Favorable class settlement.

Sieraski v. Liberty Mutual Fire Ins. Co.
Another Mahler fee class action. Favorably settled.

Aguilar v. Progressive
Class representative asserted that the use of non-original equipment "crash parts" for collision repairs to breached the insurance contract and was a violation of the Washington Consumer Protection Act. Prior to class certification, the trial court referred the matter to alternative dispute resolution under the policy's appraisal provision. After Division I denied discretionary review, plaintiff voluntarily dismissed the action.

Bryant v. Progressive
Class representative sought recovery for "diminution in value" of vehicle under first party auto coverages. Dismissed on motion for summary judgment.

Stover v. Progressive; Zinn v. Progressive; and James v. Progressive
Class representatives in three separate actions alleged that advance "payment in full" discount premium for auto insurance and associated "installment payment" fees violate state and federal usury, fair credit, retail and installment sales and consumer protection statues. Stover, filed in Federal court, was dismissed on dispositive motions. Zinn and James were subsequently filed in King County. Zinn voluntarily dismissed with motion for summary judgment pending; James dismissed on summary judgment.

Ryder v. Taco Bell
In this statewide class action, the class plaintiffs alleged violations of state and federal wage and hours laws. Following an adverse verdict in a "Phase I" trial, Taco Bell retained our firm to seek post-trial relief and to represent the corporation in Phase II of the litigation. Favorable settlement.

Washington Public Power Supply Multidistrict Litigation
This multidistrict class action involved state and federal common law and securities fraud claims brought after the termination of construction of nuclear power plants financed by the issuance of more than $2 billion in municipal bonds, secured by "take or pay contracts" for the output of the plants. The bonds went into default when the Washington Supreme Court ruled that the underlying contracts were void. We represented the consulting engineer that provided project feasibility reports with the bond prospectuses. Favorable settlement during trial.

Foss v. Alumax Inc., et al.
Twenty six aluminum smelter workers alleged that exposure to aluminum or other putative workplace toxins caused each of them to develop a neurodegenerative disease, "potroom palsy." Favorable settlement following two months of trial on medical causation issues.

Howard v. Anheuser-Busch
Represented Anheuser-Busch in one of the first three cases brought on behalf of infants and their parents, alleging that the mothers' use of alcoholic beverages during pregnancy had caused birth defects in their children. Voluntarily dismissed after close of discovery.

La Haye v. Israel Aircraft Industries, Ltd.
Plaintiffs alleged that crash of private jet was the result of defective design and maintenance instructions associated with horizontal stabilizer trim actuator. This wrongful death action sought over $30 million in damages as a result of the death of the jet's wealthy owner. Defense verdict.

Selected Construction Defect Matters

Seattle Heights Condominium Litigation
Alleged failure of EIFS and other alleged design and construction defects, in a major downtown Seattle condominium. The Association claimed damages in excess of $50 million, including toxic exposure claims related to mold growth in the building. Acted as coverage counsel for one of the developer's insurers and negotiated a settlement for a small percentage over the remediation contractor's bonded bid.

Bellevue Pacific Condominium Litigation
Alleged failure of EIFS and other alleged design and construction defects, in a high rise condominium, office and retail complex located in Bellevue, Washington. Coverage counsel for the developer's excess carriers upon the exhaustion of the primary limits. Settlement and follow-up action against non-contributing insurer with substantial recovery.

Point Elliott v. Pryde and Point Nautica v. Pryde
Alleged failure of EIFS and other alleged design and construction defects in mid-rise condominiums in West Seattle. Point Elliott favorably settled, Point Nautica in pending arbitration.

Shumway v. Colorado Casualty, et al.
Action for declaratory relief and for bad faith against subcontractor carriers for allegedly wrongful failure to defend and indemnify general contractor as additional insured. Favorable settlement.

Selected Environmental Insurance Coverage Litigation

American Linen Supply Co. v. The Travelers Indemnity Co., et al.
Owner/operator claim for coverage relating to commercial laundry sites in Arizona and Washington. Favorable settlement.

Champion International Corp. v. Aetna Casualty, et al.
A multiple site declaratory judgment action, involving 34 sites located in 24 states and approximately 30 insurers. Favorable settlement.

Industrial Indemnity Co., et al. v. Liquid Waste Disposal Corporation
Insurer's affirmative declaratory judgment action. Virtually all claims for coverage were resolved in favor of the insurer under applicable pollution exclusions or for lack of proof of the existence and contents of alleged policies. Remaining claims were favorable settled.

St. Paul v. McCormick & Baxter Creosoting Company
An owner/operator claim involving wood preservative treatment plants in Portland, Oregon and Stockton, California. The trial court dismissed our client on summary judgment under a manuscripted pollution exclusion. Other carriers were dismissed by application of "sudden and accidental" pollution exclusions or because policies were not triggered by damage during the applicable policy terms. The Oregon Supreme Court affirmed the dismissal of our client, but reversed as to all others and remanded for trial. All other insurers later settled the claim.

Spokane County v. American Re-Insurance Co., et al.
An owner/operator claim relating to a municipal landfill. Our client was dismissed on a motion for summary judgment based on the "occurrence" defense.

Time Oil Company v. Pacific Employers Insurance Company, et al.
An owner/operator claim involving an oil recycling facility. Our client was dismissed on summary judgment based under a manuscripted pollution exclusion.

Washington Natural Gas v. Aetna, et al.
Our insured owned and operated a carbureted water gas manufacturing plant from 1928 through 1956, and sold the site in 1967. The site is the subject of a $30 million CERCLA remediation as a result of pervasive soil contamination with tar and tar constituents, as well as post-1967 PCB contamination from the purchaser's recycling operations. We reached a beneficial settlement on the eve of trial. Remaining insurers tried the case to an adverse verdict, and were also assessed Olympic Steamship fees of over $2 million.

Puget Sound Energy v. Alba Ins. Co., et al.
Washington Natural Gas merged with Puget Sound Power in 1998 to form Puget Sound Energy. PSE filed a second declaratory judgment action seeking coverage for five other contaminated sites formerly operated by Washington Natural Gas. The second action was dismissed on summary judgment. Remanded after review in the Washington Supreme Court and now pending before Judge Steven Gonzalez.

Washington Public Utility Districts' Utilities System v. American Home Assur. Co., et al.
An unincorporated group of public utilities sought coverage for remediation of PCB contamination. Favorable settlement.

Overton v. Industrial Indemnity Company of the NW
Former owners of a PCB-contaminated transformer recycling site sought defense and indemnity for MTCA cost recovery action, which our client denied. In the insured's action for declaratory judgment and bad faith, the trial court granted summary judgment; Division III reversed; and the Supreme Court reversed yet again, affirming the trial court's dismissal of all claims.

City of Tacoma v. U.S. Fire Ins. Co.
Insured City sought coverage for remediation costs and third party liabilities resulting from releases from municipal landfill and from discharges into Commencement Bay. Favorably settled after dismissal of a number of the insured's claims on motions for summary judgment.

Selected Insurance Coverage Litigation

Microsoft v. Zurich Insurance Company, et al.
Microsoft sought coverage, under the advertising and personal injury provisions of its CGL and umbrella policies, for consumer class action antitrust claims that followed the adverse verdict against Microsoft in the Federal government's antitrust enforcement action. Our client was dismissed on summary judgment. The Ninth Circuit affirmed.

Microsoft v. Federal Insurance Company
Microsoft sought coverage and "bad faith" damages after its employee benefits liability insurer denied coverage for class action claims arising out of Microsoft's corporate policy of excluding all "freelance" workers from its benefit plans. The trial court has ruled there is no coverage, as a matter of law, under the policies. The remaining claims are pending.

Jain v. Clarendon Am. Ins. Co.
Former CEO of publicly traded internet company asserts claims for declaratory relief and bad faith damages relating to alleged failure to settle securities fraud claims. Pending.

Budget v. Grange Insurance Association
Environmental contractor seeks declaratory relief and damages for alleged bad faith, breach of contract and libel in connection with investigation and remediation of leaking UST. We asserted counterclaims against the contractor under the Consumer Protection Act, obtained dismissal of extra-contractual claims along with substantial award of attorney's fees under Rule 11, and obtained a favorable settlement of remaining issues.

Premier Castings v. Royal Insurance Company
The insured sold metal castings to a customer who incorporated the castings into trailer hitches. The customer sued the insured after the hitches began to fail in service. The insurer sought a declaration that the sistership and product exclusions barred coverage for the cost of recalling and replacing the hitches. Our client, the customer, intervened. On our motion for summary judgment, the trial court ruled the exclusions did not apply. Settled favorably prior to final judgment.

ETMA v. Federal Credit Insurance Association
Commercial credit insurance claim arising out of the sale of computer video boards and software to former subsidiary of the insured. Insured commenced litigation; we compelled arbitration pursuant to terms of policy; case later settled favorably pursuant to agreement for recovery from debtor of sums paid to insured under credit policy.

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