In Grease Spot, Inc. v. Harnes, 10.3 ISCR 91 (oddly enough, not even an insurance case), the Supreme Court overruled Emery v. United Pacific Ins. Co, 120 Idaho 244, 815 P.2d 442 (1991), stating it was inconsistent to interpret IC 41-1839 as allowing arbitration attorneys fees, while prohibiting such fees under IC 12-120(3), which mandates fees in “commercial transactions”.

In Grease Spot, a dispute over a purchase agreement of a small company, the parties arbitrated pursuant to a specific provision in the agreement that provided for arbitration, but contained no language regarding an award of fees.  The successful party in the arbitration, in confirming the award, moved for attorneys fees as well, which were denied by the District Court.

On appeal, the Appellant argued it was inconsistent and unfair to award insureds attorneys fees in arbitrations, but deny them to other arbitrating parties.  The Supreme Court agreed, but instead of awarding them fees, it overturned Emery, which for 20 years had read into “every insurance contract a provision granting the insured attorney fees incurred during arbitration when seeking payments due under an insurance policy.”  Emery, supra, at 445.

The impact of the Court’s ruling in Grease Spot means that in arbitrations between insurers and insureds over the coverage provided under their policies (ie: UIM and PIP proceedings), as long as the policy does not provide for an award of attorneys fees, then the insured is not  entitled to fees even if they prevail.

Given this sea change in the law, insurers should examine their Idaho policies and decide whether to revert back to arbitration-only provisions in first-party disputes.  Many companies revised their UIM and PIP policy language to avoid arbitration due to perceived high costs and liberal decisions (especially in Washington, where attorney fees for all prevailing insureds in UIM proceedings are mandated).  At least in Idaho, mandatory arbitration provisions should now be reconsidered.

Mediation in the area of family law in Spokane County has increased over the last several years. Pursuant to Local Rule 94.04 (12) mediation is required in all cases involving parenting plans and a certificate of participation in mandatory parenting conference/mediation must be filed 30 days before trial. In the past, parties could attend a parenting conference with a Court Commissioner in order to meet this requirement which is now no longer an option. Marla is available to provide mediation services to meet this requirement. Appointments for mediation can be scheduled by contacting our offices.

Pursuant to RCW 4.20.020, two “tiers” of beneficiaries are established in a wrongful death suit. The first includes the descendant’s “wife, husband, child or children”. If there are no first tier beneficiaries, the action may be “maintained for the benefit of the parents, sisters, or brothers, who may be dependant upon the deceased person for support”.

Prior to this most recent decision, Washington courts have required that to show “dependence”, required more than “emotional support”, but usually required some financial, monetary contribution by the adult to the parents or other beneficiaries. See Philippides v. Bernard, 151 W.2d 376 (2004).

However, in Armantrout the court expanded or, at the minimum, clarified the “support” required to be proven in order to qualify for the right to bring a wrongful death action. At the time of her death, Kristen Armantrout was 18 and living at home with her mother. She died, arguably due to medical malpractice at the hands of the defendant. Kristen’s mother had diabetes and was blind. Kristen provided her mother with a variety of services, acting as her mother’s driver and reader, and also helped her mother with medical needs such as glucose readings and insulin injections. At trial, testimony showed the value of those services was around $36,000 per year. Kristen also contributed her own $588 monthly disability benefits check to the household expenses.

At trial, the jury found that the Armantrout’s were substantially financially dependant on Kristen for support, and awarded them $1.15 million dollars.

The Court of Appeals reversed, holding that the trial court’s instruction allowed the jury to improperly value services, as opposed to actual financial contributions for support.

The Washington Supreme Court, in a unanimous decision, reversed the Court of Appeals and reinstated the jury’s verdict. In so doing, it held that RCW 4.20.020 was not limited purely to monetary contributions, but allowed substantial support through services, not ordinarily given by a child to their parents, to be considered by the jury to determine whether parents were “financially dependant” upon their children.

The Court reiterated that emotional dependency is not sufficient under the statute to show support, and also that dependency could not be established based upon those normal services that a child might provide for their elderly parents.

However, this will almost always create a factual question in these cases, requiring the jury to determine whether an adult child’s “services” are sufficient enough to create “dependency”. For example, if an adult child goes to his elderly parent’s home and mows the lawn once a week every summer, is that “financial dependency”? Many adult children help their elderly parents with transportation needs, or with financial matters such as balancing the checkbook. Are these services enough to create “financial dependency”?

The Armantrout v. Carlson decision will probably increase the number of claims brought by adults or siblings for “dependency” upon adult children who are tragically killed due to the negligence of another. In most cases, it will probably be a question of fact, not resolvable by summary judgment, as to the level of “financial dependency”.

Remember, the establishment of financial dependency is only to qualify the second tier beneficiaries to have a right for wrongful death. After they “qualify”, they are entitled to all those wrongful death damages as would a first tier beneficiary. In other words, they can recover more than the value of the financial services lost, but also those for the loss of their relationship with the adult child. In other words, the elderly parents of Kristen Armantrout lost the value of approximately $36,000 per year, but received a much larger jury verdict of $1.15 million dollars, representing all their damages.

On the state level, Washington passed a similar law that goes into effect July 26, 2009. Specifically, under Law S. 896 (PL 111-22), any residential tenant occupying property at the time the property is foreclosed must be given 60 days written notice before an eviction can occur. During this 60 days, the only reasons landlord could expedite removal of the tenant would include the tenant committing waste to the property or creating a nuisance. See http://apps.leg.wa.gov/billinfo/summary.aspx?bill=5810&year=2009 for a complete copy of the passed law.

It is still unclear how the state law and the federal law will mesh with each other. Anyone who has questions regarding the details of the federal/state law(s) should contact either an attorney or professional in the real estate field for assistance.

The following is a breakdown of the numbers provided by the Insurance Commissioner’s Office.

Top three reasons for complaints in 2008:
Unsatisfactory settlement/offer – 24.5%
Denial of claim – 23.8%
Delays – 22.1%

Top complaints by type of coverage in 2008:
Auto – 42.1%
Accident and health – 30.1%
Homeowners – 13.1%

The amendment is a substantial victory for consumer advocates who have been pushing the Washington legislature to update the CPA. In fact, before this amendment the CPA’s treble damage provision had not been touched for some 20 years. It is the hope that this new legislation will give the CPA some teeth, protect Washington consumers, and curb shady business practices.

The trial court or the jury can increase the total damages up to three times the actual damage amount (there is some uncertainty whether the treble damages is for the court or the jury). Although insurance companies in Washington have long dealt with “increased damages” in the consumer protection arena, they have never dealt with treble damages that are not capped at a specific dollar amount. Indeed, the Consumer Protection Act explicitly states that “increased damages” are not to exceed $10,000. Nowhere does the Insurance Fair Conduct Act cap the treble damages to a specific dollar amount.

Interestingly, the Insurance Fair Conduct Act provides the trial court with no standards to determine if “increased damages” are warranted. Indeed, only federal district courts have interpreted the Insurance Fair Conduct Act and these courts have merely held that the Act was not retroactive (and even that is still open to debate). Simply put, this law is in its infancy and ripe for new and fresh arguments and ideas. Innovation will be the deciding factor in the coming years for actions brought under the Insurance Fair Conduct Act.