Chronicling the high cost of our legal system
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“The Washington state Supreme Court has ruled that a criminally insane man who murdered his mother should not profit from his crime by pocketing a share of the proceeds from a lawsuit related to her death.” [Heller, OnPoint News; Joshua Hoge, Pamela Kissinger]
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Washington state jails are overcrowded, so—presumably to avoid lawsuits over overcrowding—Washington State Patrol policy is to arrest nonviolent offenders without jailing them. In the case of Bellingham resident Janine Parker, drunk driving in the early morning hours of January 4, Trooper Chad Bosman arrested her, and drove her home, telling her not to drive until she was sober. Nevertheless, Parker, an hour later, found a taxi to take her nine miles to her car left by the side of the road, and drove drunk head on into Hailey French’s auto, causing the innocent 22-year-old driver many injuries.
French sued Parker, of course, but also the Washington State Patrol and Whatcom County (the latter apparently failed to put an ignition-interlock device in her car as Parker’s probation from an earlier conviction provided). (Miraculously, she doesn’t seem to have sued the taxi company.) A Skagit County jury found the two governmental entities jointly liable for $5.5 million. According to press accounts, the two defense attorneys each tried to get the jury to blame the other deep pocket: apparently, making the suggestion the person responsible for the drunk driving was the person responsible was beyond either hope or comprehension, though a web commenter to the article claims that Parker testified that the accident was entirely her fault. (Peter Jensen, “Whatcom County woman’s suit against county, State Patrol in jury’s hands”, Bellingham Herald, Apr. 24; May 1 post-trial press release of victorious plaintiff’s attorney).
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“The parents of an 8-year-old boy who died after his grandfather fired a cannon that exploded at an outdoor Fourth of July celebration in 2007 have filed a wrongful-death lawsuit against Thurston County.” [The Olympian; KOMO; earlier]
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Fewer options for kids in Santa Rosa, California:
We are sorry to report that Eleven 11 Kids has been forced to close its doors as of February 10, 2009 due to the new federal children’s environmental law, CPSIA, (HR4040) that went into effect on 2/10/09.
And then the store explains in some detail why it felt it had to close. It is too polite, perhaps, to mention that both California senators, Barbara Boxer and Dianne Feinstein, played prominent roles in getting CPSIA passed, with Boxer in particular pushing the retroactive phthalates ban that has been notably harmful to resellers.
At ShopFloor, Carter Wood writes that the Senate version of the bill was (even) more extreme in its provisions than the House version, and that the Senate version unfortunately “wound up playing a bigger role in the writing of the final bill”. The Hospice of Amador and Calaveras Thrift Store, in California’s Sierra Nevada, is still operating but has stopped carrying children’s items.
In Ellensburg, Washington, north of Yakima, Cheryl Smith was “living the American dream” with her store Hailina’s Closet, which “opened last April and [sold] gently used children’s clothing and toys.” But it is just a memory now. The Kitsap Sun reported that Perfect Circle, a Bremerton children’s consignment store, also had to go out of business.
A few more reports from Goodwill: Roanoke, Virginia, Le Mars, Iowa (rare good news, some items being put back on shelves), Rock County, Wisconsin.
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Reversing a trial court that had granted summary judgment to the defense, a court of appeals in Washington state has reinstated a suit entitled Strong v. Wright in which
the plaintiff sued her former supervisor because he told “blonde jokes” (apparently plaintiff was blonde), made fun of her house, ridiculed her husband’s job, and referred to her as a “bum mother” because she put her son in therapy. The plaintiff alleged that this treatment “caused her to vomit and to have anxiety attacks, depression, and heart palpitations.” Really. Blonde jokes=heart palpitations.
Dennis Whitlind at World of Work has more (Nov. 14)(via O’Keefe).
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Just trying to dispose of all the nude cellphone pic lawsuit stories in one weekend, so that we can get back to more seemly litigation topics. (The other one was the case of the couple suing an Arkansas McDonald’s, saying the husband left his cellphone in the restaurant and the nude photos of his wife that were on it wound up on the internet.) In Bothell, Washington, parents of two cheerleaders “have sued the Northshore School District, alleging school officials erred when they suspended the girls from the team this year after nude photos of them circulated throughout the student body via text message.” Cellphone pictures of the two were separately and, it is said, accidentally circulated among fellow students; the lawsuit charges, inter alia, that the school was arbitrary to suspend the two girls while not disciplining students that had seen the pictures. (Jessica Blanchard, “Cheerleaders’ parents sue in nude photos incident”, Seattle Post-Intelligencer, Nov. 21).
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Janiece Lacross, a drunk-driving defense lawyer in Washington state, has lately run into her own trouble with the law: “Last November she drove drunk with her three young children in the backseat. She hit a boy on his bike in Kitsap County, breaking his leg and sending him into the bushes. But the vehicular assault charge against her was dropped and reduced to just a DUI, which brought Mothers Against Drunk Driving to court to find out why.” Lacross entered rehab and will accept home monitoring and attend victim impact events as part of her plea in Tacoma to DUI and three counts of reckless endangerment; her repentant statements in court even made a relatively favorable impression on MADD, not the easiest thing to do. The passing bit of the story that induced a momentary double take: as part of her penitence, it is said that Lacross “even helped the young victim, Joseph Griffith, with his civil suit for personal injuries”. Against herself? (Keith Eldridge, KOMO, Oct. 1).
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In Thurston County (Olympia), Washington, a cannon explosion during a backyard party fatally injured 8-year-old Devan Vyborny. “Now, more than 14 months later, the boy’s family is taking legal action, but not with anyone having to do with that cannon. Instead, the boy’s parents are blaming rescue crews and 911 dispatchers. … Despite the scathing allegations, the rescue crew’s actions had not been called into question until the claim was filed.” (Ray Lane, “Family of boy hit by shrapnel seeks $47 million”, KOMO, Sept. 23).
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Three years ago we noted (following reporting by Ed Lowe and J.E. Espino of the Appleton, Wis. Post-Crescent) (more) that
Representatives of the Hollywood, Fla.-based law firm of Schwartz Zweben & Associates have played a substantial role behind the scenes in helping organize, promote and support the Ms. Wheelchair America pageant and some of its state affiliates. And lawyers with the firm have filed more than 200 lawsuits in at least seven states and the District of Columbia on behalf of at least 13 pageant participants, “including state and national titleholders, state coordinators and pageant judges”.
Now the Birmingham, Ala. News follows up on the case of Colleen Macort, Ms. Wheelchair Florida 2002, who has filed more than 73 disabled-accessibility actions in Alabama “but has never spent a day in court because of settlements”. Local law provides that Macort cannot be compensated for filing the lawsuits, but the Wisconsin paper reported that the firm of Schwartz Zweben had engaged her as a consultant on other cases. The reporter is kind enough to quote me and mention this site (Liz Ellaby, “Bessemer woman crusades to address disability act violations, provoking critics”, Birmingham News, Jul. 3).
In the state of Washington, Ms. Wheelchair Washington 2005, Michelle Beardshear, has teamed up with the Florida firm to file 15 lawsuits, of which twelve have been settled, against enterprises in Clark County (Kathie Durbin, “Advocate for disabled not hesitant to sue for access”, The Columbian, May 27 courtesy Chamber ILR). And in March, Schwartz Zweben & Slingbaum (as it is now called) swooped down to sue twelve defendants in the Tucson area, including a number of well-known restaurants, alleging ADA violations. (Josh Brodesky, “12 Tucson businesses facing suits alleging Disabilities Act problems”, Arizona Daily Star, Mar. 28).
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The notion that present-day Democrats regularly steal elections by engaging in concerted efforts to vote multiple times in funny mustaches is a myth, unsupported by data or fact.
– Dahlia Lithwick, Slate, May 24
As outlined at trial, the vote fraud scheme infected not only the actual voting process in November, but also the voter registration process preceding the election. Several persons, including the defendant Cusack, falsely registered to vote by claiming to reside at addresses within the precinct when they actually resided elsewhere. The actual residents at these addresses were asked to place name-tags on their doors that bore the names of the non-resident registrants. The defendants, and several others acting under their direction, also participated in a canvass of the precinct …. Although the canvass disclosed that a number of persons who were registered to vote in the precinct had died, moved away, or for some other reason had become ineligible to vote, these persons were not struck from the list of eligible voters. Finally, on election day the defendants, either personally or by acting through others, caused numerous false ballots to be cast for the straight Democratic ticket.
– United States v. Howard, 774 F.2d 838 (7th Cir. 1985)
[T]he U.S. Attorney in Chicago at the time, Daniel Webb, estimated that at least 100,000 fraudulent votes (10 percent of all votes in the city) had been cast. Sixty-five individuals were indicted for federal election crimes, and all but two (one found incompetent to stand trial and another who died) were convicted.
– Hans A. von Spakovsky, Heritage Legal Memorandum #23
Update: Some commenters complain that the 1982 example is irrelevant to Lithwick’s claim, because it is modified by “present-day.”
Present-day examples include 2007 cases in Hoboken, NJ, Noxubee, MS, and King County, WA—not to mention the unprosecuted voter fraud in Washington state in 2004, which affected the gubernatorial election. There may be many more examples, except Democrats are using lawsuits to block attempts to compare voter rolls with addresses.
Lithwick’s argument against present-day voter fraud is that there are very few prosecutions, and that therefore prevention measures are not needed. This is akin to arguing that, because very few people are ticketed for running red lights, there is no need for traffic signals. If there’s less voter fraud today, it’s in large part because of the prosecutions in the 1980s. Given Senator Obama’s appalling block on the van Spakovsky nomination to the FEC, and the liberal activism against preventing vote fraud, one worries that an Obama Justice Department will cease prosecuting voter fraud, and that there will be a return to the bad old days, in which case 1980s examples from when the DOJ first started prosecuting vote fraud are quite relevant.
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Sports doctors say more youngsters are coming in with arm injuries from excessive hard pitching on the baseball field. In Washington state, Jason Koenig has lost his lawsuit claiming that North Mason High School was negligent in not overriding his wishes to stay in for all nine innings, 140 pitches, in a game in April 2001, resulting in injury to his arm. (Tom Wyrwich, “Former high school pitcher hopes rules are changed to protect young arms”, Seattle Times, Apr. 29).
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“A Washington state woman who sued Ford Motor over her injuries in an SUV rollover accident isn’t exactly thrilled that a jury cleared the automaker — and awarded her $6 million in damages against her sister, who was the driver of the vehicle. … The federal jury in Spokane, Wash., found Marla Bear 100 percent at fault for losing control of the SUV, in which her younger sister was a passenger. According to trial testimony, the car swerved when she looked over her shoulder to see if Crystal had her seat belt attached.” Ford’s own attorney, whether for tactical reasons of sympathy or otherwise, had advised the jury against blaming the sister. (Matthew Heller, OnPoint News, Mar. 20) (via The Briefcase).
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A Washington state prison inmate serving 24 years for arranging to firebomb two lawyers’ cars has a right to seek personal information about state attorneys, prison guards and judges, a court case has determined, even if it isn’t apparent that doing so serves the public interest.
Under open records laws, ruled King County Superior Judge Glenna Hall, public officials have no discretion about whether to give a man like Allan Parmelee access to public documents that reveal personal details about public workers, reports the Associated Press. Prosecutor Dan Satterberg had sought an injunction barring Parmelee from making further requests without court permission under the Washington Public Records Act, arguing that they are harassing and could put his staff in danger.
Parmelee reportedly has filed hundreds of public records requests seeking photos, work schedules, pay rates, phone numbers and birth dates for state attorneys, prison workers and even judges.
(Martha Neil, “Creepy Convict Has Right to See Lawyer-Related Public Records”, ABA Journal, Mar. 25). Earlier: Feb. 1.
After Joshua Hoge stabbed his mother and brother to death with a butcher knife, he was found not guilty by reason of insanity and committed to Washington’s Western State Hospital. His mother’s estate then sued King County and won $800,000 “when it was determined that a public-health clinic had failed to give Hoge his medication and was partially responsible for the slayings.” Now Hoge is suing to obtain part of his mother’s estate, which would allow him to capture some of the lawsuit winnings. A Washington statute restricts killers from profiting by their crimes, but by its terms applies to “willful” killings. Besides, says Jean O’Laughlin, Hoge’s attorney, her client isn’t covered because he was found not guilty. A Seattle University associate professor of Law, John Strait, agrees: “For all intents and purposes, there is no crime. We don’t punish people for being really sick. We don’t impose criminal culpability on people who are mentally ill,” he said. “It’s nutty logic.” (Natalie Singer, Seattle Times, Jan. 3). I wrote a couple of years ago about Washington state’s unusually broad assignment of liability to public agencies for crime and other private misconduct.
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“Threatened with a potential defamation suit, two individuals have apparently retracted their claimed characterization of a Spokane, Wash.-area law firm formerly known as ‘Wetzel & Wetzel’ as ‘Weasel & Weasel.’” Jim MacDonald, president of the Bayview, Idaho Chamber of Commerce, “read a letter of contrition” at the chamber’s regular monthly meeting “as demanded” by the offended lawyers. Does this mean we’re going to get in trouble with our earlier references to Cruel & Boring, We’ll Getcha & Mangle Ya, Huge Cupboards of Greed, etc.? (Martha Neil, ABA Journal, Oct. 25; Herb Huseland, “Bayview News: Law firm claims slander”, Spokane Statesman-Review, Oct. 25).
P.S. Australian lawyer Stumbling Tumblr adds, “there’s no indication in the story whether weasels had also threatened proceedings”.
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I previously posted on Washington’s Insurance Fair Conduct Act, known as Referendum 67. If passed by the voters, it would allow first party claimants to recover triple damages and attorney fees for those claims “unreasonably” delayed or denied.
Existing law already allows a wronged insured to bring three separate causes of action against his/her insurer for such claims: breach of contract, bad faith and violations under Washington’s Consumer Protection Act (CPA). Such existing remedies often yield bizarre results as we saw in the Woo v. Fireman’s Fund case.
The Supreme Court’s knuckleheaded 5-4 ruling upheld a judgment to pay Woo $250K he paid to settle an underlying suit, plus $750K in emotional distress and attorney fees. Obviously, there are already plenty of incentives for an insurer to avoid these judgments by acting fairly, and under this legislation Woo could have received three times more as punitive damages in addition to the “emotional distress” damages which have a punitive measure built into them. And in case you are wondering, Fireman’s Fund coverage position was perfectly reasonable.
The television ads for the Approve 67 camp are demagogic and misleading, if not outright lies. The worst has to be the ad featuring Tiffany Forslund whose father, firefighter David Potter, died allegedly because an insurer delayed payment for necessary health treatment. Forslund says:
My father would have given his life in the line of duty, turns out the insurance company took it instead.
What tripe. Not only would R-67 not apply to her father’s claim (it is intended to benefit auto, home and property policies–not health insurance) it’s not true according to the mayor of the city for which Potter worked, who said it would be covered as a workers’ compensation claim or through the city’s health plan. But the attorneys promoting this legislation could not resist such a sympathetic story of a firefighter allegedly killed by an insurance company, even if it’s entirely off-point and probably untrue. Demagoguery at its finest. And, if the claim is true Potter’s family already has remedies under existing law for emotional distress, which, for a lost loved one are rightfully substantial and the threat of such judgments deter wrongful insurer conduct. Why shall we now triple those damages?
Attorney fees are typically one-third of the gross recovery. So if the gross recovery is tripled it equals a bigger fee. But let’s say the insured prevails but the gross recovery is small? No problem. Just submit your fee request to the court on an hourly basis if it provides a greater recovery for the attorney. And, here’s another little tidbit: the attorney fee provision is mandatory but the triple damages are at the court’s discretion. Who’s looking out for who here, really? And, that the triple/punitive damages are for the deliberately vague “unreasonable” and not for criminal, willful or wanton conduct as you would expect (and would be deserved) to award punitive damages makes for a juicy tidbit indeed.
And, there’s no crisis in the first place. Check out this link from the Insurance Commissioner of Washington State showing the number of complaints against individual insurers. In 2006, Private Passenger Auto Insurance Complaints averaged one complaint for every $1.5M in premium and Homeowners Insurance Complaints averaged one complaint for every $2.5M in premium. Hardly a crisis, and nothing worthy of threatening triple damages in every instance.
This legislation will enrich those attorneys bringing these suits, bring a windfall to a small number of insureds at the greater expense of all who pay insurance, directly or indirectly.
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Point of Law Volokh