WA Legal Roundup
Three new opinions out of Div. I from yesterday, seven from Div. II and one from Div. III today. If you are in P.I., be sure to check out Burton in detail.
The General Aviation Revitalization Act of 1994 (GARA) provides no suits can be brought for defective airplane or parts that result in injury more than eighteen years after brought into service. However, the act provides for a "rolling" provision, which allows for suits based on components installed after the delivery of your airplane, but prior to eighteen years of the installation of such component.
The suit in question was a result of a crash of an aircraft purchased more than eighteen years ago. The plaintiffs argued that a Service Bulletin on said aircraft in 2003, relating to read or inspection, was the cause of the crash. A report conducted by the Mexican government, in relation to the crash at issue, concluded that service bulletin 235 was inadequate. The plaintiffs also alleged "that in obtaining approval of the Service Bulletin, Twin Commander knowingly misrepresented, or concealed, or withheld information concerning the structural integrity of the rudder system to the FAA." Under the GARA, such conduct removes the defendant from the statute of repose.
In affirming summary judgment, the court rejected the contention that "as a matter of law the rolling provision applied because it's P2 35 was a part of the maintenance manual, which is a 'part' of the aircraft." Plaintiffs relied on Caldwell, 230 F.3d 1155 (9th Cir. 2000), the proposition that the manual is a part under the GARA. However, in Caldwell, the manual did not include instructions that the last two gallons of aircraft fuel -- a helicopter in this case -- could not be used. After the helicopter crashed, because of trying to use the last two gallons of fuel, a new version of the manual provided such an instruction. However, the court noted the Fourth Circuit case which explains the differences between a flight manual and the maintenance manual. See Calgon Air, Inc. v. Raytheon Aircraft Co., 507 F.3d 270 (4th Cir. 2007). The Calgon Air court held that the maintenance manual is not a part of the aircraft for purposes of the rolling provisions under the GARA:
Unlike a flight manual that is used by the pilot and is necessary to operate the aircraft, a maintenance manual is used by the mechanic and "outline[s] procedures for the troubleshooting and repair of the aircraft." Emery v. McDonnell Douglas Corp., 148 F.3d 347, 351 (4th Cir. 1998). Unlike the federal regulations that require the flight manual to be onboard the aircraft, Burton cites no requirement that the maintenance manual must be onboard. And unlike a flight manual, a maintenance manual as well as a service bulletin are used on and apply to different aircraft models.
The court told the majority of authority, which concluded that a maintenance manual's failure to correct a design flaw is precluded by the statute or oppose. However, the court did note that the record was unclear as to whether Twin Commander was a successor manufacturer -- the original manufacturer was Gulfstream -- such that it would be entitled to the protections of the GARA at all.
As to the misrepresentation in concealment, the court noted that there was an issue of fact as to whether had fully represented the severity of the problem to the FAA in seeking the service bulletin:
Donham contends the April 4 email shows Twin Commander knew but did not disclose that the structural damage in the 1992 accident was "identical" to the 2002 and 2003 accidents cited in SB 235. According to Donham, the seriousness of the problem would have been evident if Twin Commander had disclosed that the accidents were related.
Thus, a material issue of fact did exist.
Poulsbo had a contract with Allianceone to collect unpaid citations. Allianceone would issue checks twice a month, which employee was then depositing into her personal account. After six years, the city discovered the theft, for which are covered under its policy with Fidelity. Fidelity brought suit against Allianceone, alleging that they failed to use proper payee designations and failed to check the indorsements after the checks were cashed. The payee designations utilized by Allianceone all included the words "Poulsbo Municipal". The indemnification clause reads:
VIII. INDEMNIFICATION: The Agency agrees and covenants to indemnify, defend and save harmless the client and its officers, agents and employees against and from any loss, damage, costs, charges, expense, liability, claims, demands or judgments, of whatsoever kind of nature, whether to persons or property arising wholly or partially out of an act or omission on the part of the Agency, its subcontractors and/or employees, except only such injury or damage as shall have been caused by or resulted from the negligence of the Client.
The court concluded there was no nexus between any act or omission of Allianceone and the loss suffered Fidelity. Not quite a surprise.
Junky mom has kid, agrees to dependency order letting her keep the kid while in treatment. The state determines that the child is to weak to be with mother, and keeps in state care. Mother claimed the court did not follow several provisions of the Indian Child Welfare Act, that it failed to follow several provisions of RCW 13.34.110(3), that it lacked authority to issue a dependency order as to one parent, and that the trial court abused discretion in denying her motion to revoke the agreed to order once she found out she could not be with her child.
Mom tried to claim placement was voluntary --contrary to her previous assertions that it was not, and her dispute as to the initial placement to foster care prior to the agreed order -- such that the order was invalid because there was no certificate of explanation of the terms and consequences. The court reasoned that the later consent to dependency does not change the nature from involuntary to voluntary. The court then noted that the involuntary placement procedures were followed in their entirety.
As to 13.34.110(3)(b), which requires the court to review a social study, the court relied on In re Dependency of J.L.T. for the proposition that "where there is substantial compliance with 13.34.110 and no resulting prejudice, the failure to prepare an ISSP does not invalidate the agreed order. As to 13.34.110(3)(c), Mom claimed that the court had to provide an addendum that the order was read and understood. However, Mom could not show prejudice from that.
With the order on the failure to revoke, Mom did not establish any reason under CR 60 for which revocation of the order would be warranted. Thus, the judge, who explained such, did not abuse discretion.
Finally, as to authority, Mom's agreement allowed the dependency, which the court gave KS the option of postponing entry until after the father's hearing. She chose not to. A few days later, Father signed an identical order. There was no affect on the court's authority
Betcha.com users could "gamble" with each other by paying a fee to Betcha.com, then funding the accounts. However, the user agreement said that participants were not required to pay their losses. Thus, Betcha.com wasn't engaged in gambling or bookkeeping. Betcha.com did hold the purse for these bets, but users could still "welch" on the bet if they chose. Basically, gambling was an essential element, gambling, under the court's interpretation required someone to be bound.
Methinks this just may go up on appeal?
Juvenile restitution order included anticipatory costs. Under RCW 13.40.020(22), restitution included "actual expenses incurred for medical treatment." Previously, the court had held that, under the former restitution statute, a judge could hold future restitution hearings to account for medical expenses actually accrued at a later date.
Denial of suppression motion of coke found in a Hotel Room. Suspect's uncle had told police that suspect was being violent and that he wanted him removed from [the uncle's] motel room. The court found the community caretaking function of Jacobs did not apply because there was no evidence that someone inside needed help, and thus applied Shleiker, 115 Wn. App. 264, 62 P.3d 520 (2001). While they potentially had an argument as to invitation by the victim to enter the room, this was not argued at the trial court. Reversed with instructions to suppress.
Homeowner's brought suit against sellers of a house damaged by landslides. Jury awarded 400K, but apportioned 85% to the new owners. Appeal on substantial evidence not supporting contribution, error in instruction on contribution and mitigation, not allowed to introduce evidence that insurance wouldn't pay for repairs which would have mitigated, and failure to grant a new trial on damages due to jury not awarding uncontested special damages. Affirmed.
There was substantial evidence supporting contribution (Failure to maintain the sump pump, using too much water in the septic system, clearing vegetation on a slope). Failure to mitigate was supported by not replanting the slope so as to prevent a new slide and by not utilizing effective drainage.
As to the insurance, ER 411 didn't apply, because this wasn't liability insurance. However, it was unrebutted that the Jaegers had no funds to built a wall, thus, the insurance issue would make no difference on that matter.
Land use nerds, have fun. For those new to the blog, I have no interest in land use cases, and simply refuse to blog about them.
The corpus delicti rule requires that before a confession can be admitted, the prosecution must present a prima facie case establishing the corpus delicti of the crime. Here, Angulo was convicted of child rape, but the only evidence of penetration was his own confession, and the acts described by the victims resulted only in molestation. At first wiff, I would say that this would fall squarely under the rule, but other Washington Courts have held that child rape prosecution corpus delicti is met where evidence of molestation accompanies a confession to rape. As such, the court affirmed.