Archive - Professional Liability

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September 25, 2017

Summary Judgement in Misrepresentation Case

Jeffrey P. Downer, Peter E. Sutherland, and Jonathan J. Loch won summary judgment in Bellora Condominium Owners Association v. Green. Plaintiff had sued to quiet title to a portion of an outdoor deck that it considered a common area, but that unit owner Green claimed was exclusively his. Green counterclaimed for adverse possession and for damages for negligent misrepresentation if the court determined that the deck was not his. Jeff, Peter, and Jonathan defended the misrepresentation claim and argued that Green lacked the required clear, cogent, and convincing evidence of that cause of action. The court agreed and dismissed the misrepresentation counterclaim.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

May 26, 2017

Appeal Successfully Defended

Rosemary J. Moore and Michelle A. Corsi successfully defended an appeal in the Superior Court for Snohomish County from the entry of judgment by the district court in favor of their client and the dismissal of the defendant’s counterclaim in Carlisle Creek Condominium Association v. Lopez.  Mr. Lopez, a condominium owner, denied the Association’s claim and claimed that the Association had recorded an unlawful lien against his property, causing him financial loss and emotional distress.   He also claimed on appeal that the Association’s motion for summary judgment was in violation of the court rules and that the court should not have awarded the Association its legal fees.  Rosemary and Michelle argued to the superior court that Mr. Lopez’s claims could not be supported as a matter of law.  They also pointed out that the award of legal fees was supported by statute and by the condominium contract.   The superior court agreed and denied the appeal.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

August 29, 2016

Summary Judgment and Attorney Fees Awarded

Rosemary J. Moore and Michelle A. Corsi obtained summary judgment and an award of attorney fees in the case of Carlisle Creek Condominium Association v. Lopez, Snohomish County District Court.   Representing the Association, Rosemary and Michelle obtained judgment on the Association’s affirmative claims and dismissal of defendant Lopez’s counterclaims on several grounds. The Association initially filed the lawsuit to recover unpaid condominium dues from Mr. Lopez, the owner of the condominium unit at issue.  In return, Lopez filed a counterclaim falsely alleging that the Association had registered an unlawful lien against his property and then demanded an exorbitant sum to remove the lien.  The court agreed with Rosemary and Michelle that the Association was entitled to summary judgment for several reasons.  The lien and the amount demanded were lawful, Mr. Lopez’s alleged damages were speculative and he could not prove that the alleged loss was proximately caused by the Association’s conduct.  The court also awarded the Association its attorney fees.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

June 4, 2014

Affirmed Summary Judgment Against Claimed Mismanagement

Sam B. Franklin and William L. Cameron received prevailed on appeal in Anderson v. Dussault. Division II of the Court of Appeals affirmed summary judgment of dismissal against a trust beneficiary who claimed mismanagement of a special needs trust.  The plaintiff was injured when she was six and received a substantial award, which was placed in a special needs trust for her benefit.  Over the years, the trustee made payments for various things including some of which benefitted the plaintiff’s mother, who had primary custody during most of her minority.  Three days before her 21st birthday, the beneficiary sued her mother, the co-trustee of the specials needs trust, who had also been her attorney in the tort action, the successor trustee Wells Fargo Bank, and the attorneys who had assisted in preparing annual reports for the Superior Court.  The Court of Appeals found that the beneficiary could not challenge trust expenditures once they had been approved by the Superior Court.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

November 19, 2013

Case Yields Published Opinion for Attorneys Representing Trustees

Samuel B. Franklin and William L. Cameron received a decision in Anderson v. Dussault, from Division II of the Court of Appeals affirming summary judgment against a trust beneficiary who claimed mismanagement of a special needs trust. The opinion will be published and fills a hole in the much needed area of potential liabilities for attorneys who represent trustees.

The plaintiff was injured when she was six and received a substantial award, which was placed in a special needs trust for her benefit. Over the years, the trustee made payments for various things including some of which benefitted the plaintiff’s mother, who had primary custody during most of her minority. Three days before her 21st birthday, the beneficiary sued her mother, the co-trustee of the specials needs trust, who had also been her attorney in the tort action, the successor trustee Wells Fargo Bank and the attorneys who had assisted in preparing annual reports for the Superior Court. The Court of Appeals found that the beneficiary could not challenge trust expenditures once they had been approved by the Superior Court and affirmed the dismissal of the action. The court further found that the claims against Wells Fargo Bank and Wells Fargo’s attorneys lacked merit. The Court awarded them their costs and fees.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

November 18, 2013

Court Dismisses Case for Lack of Personal Jurisdiction

Joel E. Wright and Marc Rosenberg won dismissal for lack of personal jurisdiction and failure to state a claim in Hunter v. Ferebauer, cause no. CV-13-5020-EFS (E.D. Wash. 2013).  The plaintiff sued the Utah defendant, under eight causes of action for allegedly violating his due process rights by depriving him of parental rights as a biological parent through an adoption proceeding in Utah, that allegedly took place as a result of fraud and conspiracy.  Plaintiff sought more than $20 million in damages.  Joel and Marc first convinced the court that the plaintiff sought not show the client purposely directed any conduct toward Washington, resulting in dismissal of the client for lack of jurisdiction.  Joel and Marc also convinced the court that the client was not a state actor for purposes of the federal claims, and that the plaintiff was barred from other claims where full faith and credit had to be given to the orders of other courts, including the Utah court in which the adoption occurred.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

April 8, 2013

Increased Liability for Design Professionals

By A. Janay Ferguson

Mere existence of construction on the campus did not trigger immunity.

The Washington Supreme Court eroded statutory immunity extended to design professionals under Washington’s Industrial Insurance Act, RCW 51.24.035 in the recent decision of Michaels v. CH2M Hill, Inc., 171 Wn. 2d 587, 257 P.3d 532 (2011). Under the Act, design professionals are immune from suit when they have been retained to “perform professional services on a construction project.” In a case of first impression, the Court narrowly construed the term “construction project” as it relates to design professionals.

The City of Spokane hired CH2M, an engineering firm, to provide design services as part of a project to upgrade and retrofit the city’s sewage plant and to provide on-site services while the plant continued operating during the project. The retrofit was to fix the plant’s struggle to maintain a sufficiently high temperature within its three sewage digesters, which are large holding tanks for biosolids. CH2M proposed an interim fix to increase temperatures in the digester tanks by segregating the flow inputs into the tanks and redirecting biosolids through a previously unused pipe into a newly isolated line. To effectuate the new flow changes, new valves, or skillets, were installed. CH2M did not prepare a written analysis of the effects of the flow separation or the newly installed skillets.

Several days after CH2M’s suggestion was implemented, city employees grew concerned that one of the digester tanks was overfull. The employees tried to divert biosolids from the overfull tank into a second tank. This  caused pressure to build in the overfull tank, resulting in its collapse, the death of one employee, and serious injuries to two others. Although the City was negligent in the accident, the city was immune from suit because it was the workers’ employer. Plaintiff workers sued CH2M, alleging negligent preparation of the designs and plans.

CH2M contended it was immune from suit because the sewage plant was a construction project, it had not expressly assumed responsibility for safety practices at the plant in its design contract, and it did not exercise control over the premises where the workers were injured. It was undisputed at trial that construction had been occurring at various locations within the sewage plant campus, but not on the tank that collapsed. It was also undisputed at trial that CH2M had not agreed to assume responsibility for safety in its contract, and that the City of Spokane had controlled the premises and directed the injured employees’ activities.

CH2M argued that any construction activity at the sewage plant campus triggered immunity as a “construction project” under the statute. The Supreme Court disagreed. The Court concluded that the Act was intended to protect design engineers from liability imposed on general contractors for construction workplace negligence, not to shield them from their own negligence. Although the Court determined that there was construction ongoing at the plant campus pursuant to the designer’s contract, this was not enough to render CH2M immune for the activities in the entire plant, and specifically, to areas where there was no ongoing construction. Thus, the Court held that as there was no construction underway at the digester at the time of the collapse, CH2M was not entitled to immunity.

The Court also rejected CH2M’s argument that it was entitled to immunity because it had not actually prepared plans for the project at the time of the collapse. The Supreme Court held that CH2M was not shielded from liability for the negligent preparation of an engineering design simply because the design was not reduced to writing.

A concurring opinion, signed by four Justices, found that CH2M’s negligent design was sufficient to overcome immunity, and they would not have reached the issue on the scope of a “construction project.”

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

April 5, 2013

Fair Debt Collection Practices Act

Marc Rosenberg obtained summary judgment of dismissal in Rodriguez v. Attorney.  Plaintiff brought five claims against creditor and its attorney under the federal Fair Debt Collection Practices Act , claiming Marc’s client used unfair and unconscionable means to collect a debt, misrepresented the amount and legal status of the debt, took action that could not legally be taken.  The district court dismissed the matter on summary judgment, holding that it had to honor the state court’s entry of judgment against the Plaintiff, and that she had not provided evidence to raise an issue of fact in regard to the remaining claims.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

Statute of Limitation

Steven G. Wraith and Timothy D. Shea won summary judgment dismissal for their client in Hancock v. Granite Northwest, an Oregon lawsuit filed in Morrow County. In September 2010, the plaintiff filed suit for an alleged injury occurring in 2008 and named certain defendants and “John Does 1-3.” The plaintiff did not name Steve and Tim’s client, Granite Northwest. Later, in November 2010, the plaintiff filed an amended complaint naming Granite Northwest as a defendant and served the amended complaint. Steve and Tim moved to dismiss based on Oregon’s two year statute of limitation. The plaintiff argued the statute of limitation was tolled and the amended complaint related back, because Granite Northwest had been informed by letter that it might be one of the John Doe defendants in 2010. He had sent a letter with a copy of the lawsuit to Granite Northwest informing it that it may be one of the John Doe defendants.  The court agreed with Steve and Tim that neither the letter nor the copy of the complaint constituted sufficient notice to toll the statute limitation. The court dismissed the plaintiff’s complaint.

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