Defense Successes
Monday, February 4, 2019
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Section: Secondary Article




Kristin Fay of the Law Office of Gerrit Ayers and Associates successfully won an award of costs against a Plaintiff who elected to dismiss his lawsuit and refile under the new civil arbitration rules.  InWardrip v. Brigance, a Kitsap County case, Timothy Ray and Jongwon Yi moved to dismiss on the eve of trial to circumvent the old mandatory arbitration limit of $50,000 and avail themselves of the higher $100,000 available civil arbitration limit.  Defendant filed a Motion for Costs pursuant to CR 41 and argued the dismissal prejudiced defendant after non-recoverable costs were incurred.  The Court awarded $1,975 in costs which were due prior to the plaintiff proceeding with a new suit. 

Defendants Not Negligent for Cinder Block Stairs
Alan Singer of Todd Bowers & Associates won a defense verdict in Thomas v. Hopper in Kitsap County District Court.   This was a five day jury trial before Judge Claire Bradley.  Plaintiff claimed he tripped, fell, and sustained a knee injury due to an allegedly dangerous set of cinderblock “stairs” on the defendants’ property.  Plaintiff claimed he suffered a knee injury in his fall, with subsequent depression, wage loss, and medical expenses.  He alleged the “stairs” were negligently designed and maintained, and that the defendants also negligently failed to adequately warn him about the condition.  Before trial, on Plaintiff’s successful motion for partial summary judgment, the court ordered that $6,403.17 in medical bills was established conclusively as reasonable and necessary, with plaintiff free to prove additional damages at trial.  At trial, Plaintiff’s attorney argued the jury should award $12,240.31 in past medical bills, between $6,895.82 and $8,347.50 for wage loss, and $35,000 for non-economic damages, for a total award of between $54,136.13 and $55,587.81.
 
Defendants disputed liability, disputed causation and damages, and contended that the plaintiff alone was the sole cause of the injuries alleged.  Defendants asked the jury to find the defendants not negligent, or alternatively, to find that any negligence did not proximately cause any damages or injuries, or alternatively, that any damages were caused by plaintiff’s own fault.  The jury deliberated for approximately 1 hour before returning with a unanimous verdict finding the defendants not negligent.
 
The demand before trial was $100,000.  The last offer before trial was $5,000.
 
Plaintiffs demand $6 million.  Jury response – No.
 On September 20, 2018, Preg O’Donnell & Gillett lawyers, John Butler, and Jason Harrington won a full defense verdict in a worksite injury case tried to a King County Superior Court jury.  Plaintiffs, an injured subcontractor employee, and his spouse claimed serious brain and orthopedic injuries following a fall from a worksite roof deck and sued the general contractor for damages.  The Plaintiffs’ demand at trial was $6 million.  After three weeks of trial before the Hon. Veronica Alicea-Galván, the jury deliberated less than a day and awarded a verdict in favor of the defendant general contractor.  The case was one of the first to reach a verdict following the Washington Supreme Court’s July 2018 decision in Afoa v. Port of Seattle (Afoa II). 

Partial Defense Verdict and Directed Verdict in Construction Defect Case
Defense Attorneys: Earle Bravo of Reed McClure and Dennis Woods and Kelsey Shewbert of Scheer, Holt, Woods & Scisciani LLP
Plaintiffs’ Attorney: Charles Greenberg of Triad Law Group
County – King
 
Plaintiffs entered into a contract with Home Depot for a roof repair. Plaintiffs alleged that their contract with Home Depot included a 25-year warranty on labor and materials, which was disputed by Defendants. Plaintiffs were dissatisfied with the work completed by Home Depot and its subcontractors.  Plaintiffs subsequently sued Home Depot for (1) breach of contract; (2) fraud; and (3) violation of the Consumer Protection Act.  Plaintiffs also raised bond claims against Westchester Fire Insurance Company.
 
After Plaintiffs completed their case-in-chief, Home Depot moved for a directed verdict for all claims, arguing that Plaintiffs failed to meet their burden on all three claims.  The Judge granted Home Depot’s motion for directed verdict on the fraud claim, reserved on the CPA claim, and denied on breach of contract.
 
Westchester Fire Insurance Company also moved for a directed verdict, which was granted. 
 
At the beginning of trial, Home Depot requested that the jury award Plaintiff $59,000 for their breach of contract claim only.  Plaintiffs asked for $250,000, plus fees, costs, and treble damages. At the conclusion of the case, Plaintiffs’ claim for breach of contract and violation of the Consumer Protection Act were presented to the jury.  The jury awarded Plaintiffs $60,000 for their breach of contract claim and entered a defense verdict on behalf of Home Depot for the Consumer Protection Act claim. 

Dog Knocked Her Down – Still Not Worth $500,000
Thomas Crowell of Todd Bowers & Associates successfully defended a dog attack lawsuit stemming from a December 7, 2016 incident.  In Millmann v. Hagenau, the plaintiff, represented by attorneys Timothy Acker and Robert Thompson, alleged that while walking a puppy she was knocked down and bitten by Defendant’s two dogs.   The defense admitted that the two dogs were unrestrained and attacked the puppy. The defense further admitted that the plaintiff was knocked down in the attack. The defense denied that the plaintiff was bitten, however.  The plaintiff, and her care providers, alleged that she suffered permanent, severe PTSD.  The defense disputed the extent of her incident related treatment expenses and disputed that that she suffered PTSD.

Prior to trial, the plaintiff attorneys had consistently demanded a tender of policy limits of $300,000.  Once the defense determined that the alleged past treatment expenses were $18,176, the defense offered $30,000 to settle the matter.  Immediately prior to trial, the plaintiff reduced her settlement demand to $295,000.

The case was tried before a 12 person Pierce County jury before Judge Edmund Murphy.  The trial started on January 14 and concluded on January 17, 2019.  The plaintiff presented the testimony of her care providers and also retained psychologist Daniel Rybicki, Ph.D.  The defense presented the testimony of psychiatrist Russell Vandenbelt, M.D.

During closing arguments, plaintiff attorney asked for $504,400.26.  The defense suggested an award of $11,676.27.  The jury deliberated for approximately 2½ hours and returned a verdict in the amount of $20,400. 

Gangplank is an Extension of Land So Maritime Law Did Not Apply
Michael B. King, Jason W. Anderson, and Rory D. Cosgrove, of Carney Badley Spellman’s appellate-practice group, persuaded the United States Court of Appeals for the Ninth Circuit to resolve a circuit split on the so-called “gangplank rule” in favor of their client, the Port of Bellingham.  Adamson v. Port of Bellingham, 907 F.3d 1122 (9th Cir. 2018).
 
Shannon Adamson was a crewmate on a ferry operated by the Alaska Marine Highway System.  The Port of Bellingham built a marine terminal, which included a permanent passenger ramp and a vehicle ramp, specifically for the ferry system’s use.  Adamson misoperated the passenger ramp and was injured.
 
The District Court concluded on partial summary judgment that maritime law did not apply to Adamson’s tort claims because her injuries did not occur on navigable waters.  Adamson challenged this ruling on appeal.
Structures like bridges, piers, and docks have been consistently deemed extensions of land for purposes of maritime law.  But a gangplank or gangway has been traditionally viewed as part of a vessel; thus injuries on gangplanks were deemed to have occurred on navigable waters.
 
The Ninth Circuit concluded that the passenger ramp was an extension of the land and thus maritime law did not apply.  It joined the Fourth and Fifth Circuits and held that whether equipment that is used to access a vessel is a gangplank (or gangway) for maritime-law purposes—or is a permanent land-based structure subject to state law—will be determined on a case-by-case basis.  It rejected the First Circuit’s per se rule that any equipment used to access a vessel is a gangplank subject to admiralty jurisdiction.  The court declined Adamson’s request for rehearing en banc.
 
“Mass Plant Death” – Causes Unknown
Karen Bamberger, of Betts Patterson & Mines, P.S. in Seattle, recently obtained summary judgment against a claim that volatile organic compounds (“VOCs”) were released and caused “mass plant death” to the marijuana crop in plaintiff’s indoor cannabis grow operation when her client applied paint, some by spray application, to an outdoor water tank over 800 feet away.  The motion argued that the plaintiff’s consultants could not meet the Frye standard or the requirements of Evidence Rule 702. 

Plaintiff’s consultants performed testing but kept no records of the testing performed, including no documentation of what precisely was tested and how or when the testing was done.  There were no test results and no samples of the water, soil medium, or the plants themselves that were retained.  Plaintiff’s consultants performed no testing for VOCs in any of these materials and performed no testing of the air for VOC levels at relevant distances, claiming the latter was too expensive.  Plaintiff’s proof problems were compounded by the fact that there is no published scientific literature regarding the effects of VOCs on marijuana since these plants are not legal under federal law. 

 
In the matter of Ballard Marine Construction Inc.,Claimant/Counter Respondent v. American Bridge Company, Inc.Respondent/Counter Claimant; Arbitration Proceedings, Final Award, February 1, 2019, at Seattle, Washington. (Pursuant to the Rules of the Society of Maritime Arbitrators, New York).
 
Before Edward M. Archibald, Arbitrator; Seattle, Washington
For Ballard Marine Construction, Inc.:  Nicoll Black & Feig PLLC, Seattle, WA; by W.L. Rivers Black and Jeremy Jones
For American Bridge Company, Inc.: Casey & Barnett LLC, New York, NY; by Christopher M. Schierloh and Gregory Barnett
 
The dispute involved claimant Ballard Marine Construction's unsuccessful attempt to salvage respondent American Bridge Company's barge that sank in April 2016 in the Missouri River near Kansas City during a bridge construction project. Ballard's salvage activities were undertaken pursuant to the U.S. Open Form of Salvage Agreement that required it to use “best endeavors“ to salvage the barge. The barge was not recovered using the pump & vent methodology agreed by the parties, and American Bridge eventually hired another company to raise the barge using heavy lift equipment. As a consequence, American Bridge refused to pay all of Ballard’s invoices. Ballard invoked the agreement's arbitration clause to seek recovery of the unpaid invoices.  American Bridge counterclaimed for approximately $2.1 million, alleging breach of contract and negligent salvage, claiming damages for the total loss of the barge, the expense of the subsequent salvor, and consequential damages.
 
The arbitrator ruled in favor of Ballard and against American Bridge on all claims. The arbitrator found that Ballard was entitled to recover $226,232, plus interest, for it’s unpaid invoices, and was entitled to recover it’s reasonable costs and attorneys fees as the prevailing party. With respect to the counterclaim, the arbitrator rejected the counterclaim and found that Ballard‘s conduct was reasonable under the circumstances and constituted the exercise of best endeavors. Additionally, American Bridge did not suffer independent or distinguishable damage to the barge, which is the predicate under maritime law for a claim based on ordinary negligence of a salvor. Nor did American Bridge meet its burden of proving that Ballard’s inability to raise the barge was the result of any negligence or failure to use best endeavors.