Landmark ruling restricts parents’ wrongful-death damages
By Alan M. Singer

In a wrongful-death action, parents of an adult child may recover for loss of consortium only if they were financially dependent on the child, the Washington Supreme Court has held.

In Philippides v. Bernard, 88 P.3d 939 (April 22, 2004), 22-year-old Ianni Philippides, an unmarried man, was struck and killed by a vehicle while riding his bicycle as a courier in downtown Seattle. Philippides's sister, as personal representative of his estate, filed a wrongful-death action, and his parents brought wrongful-death claims for loss of consortium, both under Washington's wrongful-death statute, RCW 4.24.010.

Plaintiffs and defendant cross-moved for summary judgment as to whether the parents could recover for loss of consortium claim even though they had not been financially dependent on their son when he died. The trial court held that the parents could maintain such a claim. A jury later returned a verdict of $891,809 in economic damages to the estate and $900,000 for loss of consortium.

The Washington Supreme Court granted direct review and consolidated Philippides with several other cases.

The Philippides Court addressed three issues: First, does RCW 4.24.010 permit the parent of an adult child to recover damages for loss of consortium if they were not financially dependent on the child? Second, regardless of financial dependence, should the Court recognize a common-law loss of consortium cause of action in such cases? Third, does the dependency requirement under RCW 4.24.010 violate the state or federal constitutions?

The Philippides Court first addressed whether the wrongful-death statute permitted the parent of an adult child to recover for loss of consortium without having been financially dependent on the child. The Court held that the statute's “dependent for support" language meant what it traditionally had meant, which is financial dependence. The Court considered the statute's legislative history and concluded that a recent amendment did not allow non-financially dependent parents to sue for the death of their adult children, as opposed to their minor children.

The Philippides Court next considered plaintiffs' request that it create a common-law right of action for loss of consortium in such cases. Plaintiffs urged a change in the rule because of outdated notions of the parent-child relationship and because such a financial-dependence requirement would permit recovery by a parent of a 17-year-old to recover, but not by a parent of an 18-year-old. The Court disagreed, concluding that the legislature created a comprehensive set of statutes governing who may recover for wrongful death and survival. Thus any change had to come from the legislature, not the courts.

The Philippides Court also rejected plaintiffs' argument that RCW 4.24.010's dependency requirement violated federal and state constitutional protections. The Court held that essentially the same arguments were rejected in Masunaga v. Gapasin, 57 Wn. App. 624 (1990), and legitimate reasons supported their conclusion.

The dissent, authored by Justice Chambers, asserted that RCW 4.24.010 allowed the cause of action because the definition of "support" applied to adult and minor children.

Statute of limitations does not bar father’s suit against child’s counselor
By A. Janay Ferguson

A plaintiff has no duty to seek out evidence of medical negligence if another "facially logical explanation" for the injury exists, Division Three of the Washington Court of Appeals has held.

In Webb v. Neuroeducation, Inc., P.S., 88 P.3d 417 (Apr. 22, 2004), a father, Mark Webb, sued a psychologist, Dr. Kimberly Chupurdia, for negligently implanting and developing false memories of sexual abuse in his minor son, John Doe. On April 15, 1997, John Doe's mother, Susan Webb Ellis, took John Doe to Chupurdia for counseling. The next day, Chupurdia reported John Doe had been sexually abused by his father and filed a police report. Webb's last contact with his son was in June 1997. Webb tried to speak with Chupurdia, but she refused to communicate with him.

On July 28, 1997, the police told Webb that he was being investigated for sexually abusing John Doe. Both Child Protective Services and the police department later concluded that the allegations lacked corroborating proof and closed their investigations. No formal criminal action was ever taken against Webb.

In 1998, both parents sought to modify John Doe's parenting plan. Webb claimed allegations of sexual abuse were the product of Ellis's paranoia and her suggestions to John Doe. Ellis sought to terminate Webb's visitation rights, relying in part upon a declaration by Chupurdia that recommended all visitation be terminated. On November 18, 1998, Webb offered a contrary declaration, which stated "I believe John Doe has been coached and coaxed into fear and that Dr. Chupurdia contributed to that fear." Webb claimed he had no actual knowledge of John Doe's sessions with Chupurdia, but stated he "very strongly believed" Ellis had given Chupurdia misinformation.

A guardian ad litem (GAL) was appointed for John Doe and charged with investigating the allegations against Webb. An expert specializing in repressed memory was retained to examine Chupurdia's records. This expert's report, issued in July 1999, was highly favorable to Webb. On October 7, 1999, the GAL issued his final report and concluded the repressed memories of sexual abuse had been implanted by Ellis's suggestions and reinforced by Chupurdia's counseling. John Doe continued treatment with Chupurdia until approximately November 11, 1999. On November 26, 2001, Webb filed a damages suit against Chupurdia, alleging her treatment had been negligent and breached her professional standard of care.

The statute of limitations for medical malpractice requires that any such action be filed within three years of the allegedly negligent act or omission, or within one year of the time the patient could have discovered the injury had been caused by the act or omission. RCW 4.16.030.

Chupurdia moved for summary judgment, arguing primarily that Webb's claim was barred by the statute of limitations. Webb contended he had not discovered the alleged malpractice until the GAL report in October 1999. The trial court agreed with Chupurdia and found that as a matter of law, Webb's November 18, 1998, declaration showed he knew or should have known the elements of his cause of action.

Division Three of the Court of Appeals disagreed. The court determined that when the facts were viewed in the light most favorable to Webb, Chupurdia's refusal to speak with Webb and Webb's reliance upon the term "believe" in his declaration clearly demonstrated that the declaration was Webb's guess about the possible source of John Doe's fear. Webb argued he had initially attributed John Doe's fears solely to Ellis.

Therefore, the court concluded that Webb's declaration was based upon Webb's belief and was "necessarily speculative and conclusory." The court held that reasonable minds could reach more than one conclusion regarding the disputed discovery facts, and Webb's suit was not time barred.

Reimbursed PIP insurer must pay share of claimant’s fees out of its own UM policy
By Jeffrey P. Downer

A personal-injury-protection insurer that receives PIP reimbursement from its own uninsured-motorists coverage must pay a proportionate share of claimant’s attorney fees, the Washington Supreme Court has held.

In Hamm v. State Farm Mut. Auto. Ins. Co., 88 Wn.2d 395 (April 22, 2004), Rebecca Hamm was injured in an accident with a driver who had no insurance. Hamm’s PIP insurer, State Farm, paid her medical bills. Hamm also had UM coverage with State Farm, and she and her lawyer later won a UM arbitration award against State Farm. State Farm reduced its UM check to Hamm by $8,669.71, the sum of its prior PIP payments. Hamm claimed that that reduction should be one-third smaller, under the rule that generally awards PIP claimants their attorney fees incurred in achieving the PIP reimbursement. Under Winters v. State Farm Mut. Auto. Ins. Co., 144 Wn.2d 869 (2001), an underinsured-motorists insurer must share in such fees, because the PIP reimbursement came from a “common fund” of both liability and UIM coverage. State Farm replied that unlike in Winters, Hamm’s attorney deserved no credit for causing State Farm essentially to reimburse itself. Hamm sued State Farm for those fees, and the trial court awarded them.

The Hamm Court affirmed. The Court ignored the central rationale of Winters and instead said that refusal to award such fees here would put Hamm in a worse position than if she had bought separate coverages from separate insurers.

Around The Firm

August G. Cifelli and William R. Kiendl won summary judgment of dismissal in Hodges v. Summer Fun Rentals. Plaintiff sued a jet-ski rental company after a collision on the Columbia River that caused a partial leg amputation. Gus and Bill brought a series of summary judgment motions. The federal court held that plaintiff could not prove the negligence and product-liability claims against Gus's and Bill's client and dismissed them. ... Gus Cifelli won Tighe v. General Motors, in which plaintiff alleged that airbags failed to deploy during a collision. After plaintiff saw Gus's summary judgment motion, plaintiff voluntarily dismissed the action. ... Joel E. Wright and Laura A. Sell won summary judgment of dismissal of two legal-malpractice claims. In Bottemiller v. Short Cressman & Burgess, PLLC, plaintiff alleged that defendant mishandled a child-support order, but the court found no proof of any claim. In Satcher v. Shubert, plaintiffs alleged legal malpractice in the guise of a RICO claim, but the federal court held that plaintiffs failed to state a claim.

Philip B. Grennan has won two trials. In Baker v. Prather, Phil defended a real estate broker against a fraud claim. Plaintiff sued for nearly $500,000 and prevailed against co-defendant seller, but the court dismissed all claims against Phil’s client. Brown v. Stewart was a claim of drug-counselor malpractice for reporting plaintiff’s violation of a drug-treatment program to the Department of Licensing. Plaintiff alleged a wage loss of some $200,000. Phil argued that defendant had not caused plaintiff’s damages and that the damages were only $40,000. The jury returned a net verdict of only $2100. ... Jeffrey P. Downer and Michelle A. Corsi won summary judgment of dismissal in New West Fisheries v. Neeleman, et al., a $10 million legal-malpractice claim, because the statute of limitations had run on plaintiff’s claim before Jeff and Michelle’s began representing plaintiff. ... Jeff Downer and Carolanne D. McCaskill won partial summary judgment in Lucks v. Pool Industries, a claim of product failure and $350,000 in damages. The court agreed that a limitation-of-liability clause eliminated plaintiff's claim for consequential damages, so that at trial, plaintiff may seek only $65,000 of the total claim. ... In Page v. Harvey, a legal-malpractice case, Jeff Downer and Jason C. Hawes won partial summary judgment of dismissal of plaintiff’s claim that his ex-lawyer entered into a divorce decree without his authorization. ... Jeff Downer and Alan M. Singer successfully defended Ozolitis v. Sterling Brokerage, in which plaintiffs alleged misrepresentation against real estate brokers for loss of waterfront and dock rights. Jeff and Alan moved for summary judgment, but after plaintiffs saw the motion, they settled for just $500. ... Steven J. Jager and Mary E. DePaolo won summary judgment of dismissal of Skierka v. Dinnson, a toxic-mold claim against a commercial landlord.

Patricia K. Buchanan and Aaron P. Gilligan won summary judgment in White v. Township of Winthrop. Plaintiff, the town marshal, resigned after suffering a seizure while on duty. The mayor told the local newspaper that plaintiff had suffered food poisoning and could not maintain the medication level needed to control his seizures. Plaintiff sued the town, alleging that the mayor's statement amounted to disability discrimination and invasion of privacy. The court disagreed and dismissed the action. ... Eric S. Newman won the trial of Hernandez v. Stephens, in which a boy claimed that defendant ran over his leg. The boy suffered deep abrasions and scarring on his leg and sought $86,000 from the jury. The defense contended that the defendant came to a complete stop, and the boy ran into the car. After only half an hour of deliberation, the jury returned a defense verdict. ... Tammy L. Williams and Pamela J. DeVet won partial summary judgment in Tanguy v. General Construction, a claim for construction-site injuries. ... A. Janay Ferguson won the arbitration of Hasten v. Boyd, a personal injury claim arising from a rear-end car accident. Plaintiff was left owing the defendant's costs.