WA Legal Roundup
So there are several to blog on from the Washington Supreme Court, as well as one opinion out of Div. II. I will chalk this up to a justice being back in the office after a little sparring with medical conditions.
While the opinions came out Friday, I didn't feel like doing much of anything Friday. Be sure to take your airborne! While I'm still sick, I figure I can only put off the legal news for a few days. Enjoy.
For Pete's sake! If your client gives you funds in advance, put them in an interest bearing checking account and not your business account. When the client demands an accounting, don't show him your business account register and tell him its actually a trust account.
Thanks for playing. Cramer won an eight month suspension.
In a blow to victims of mesothelioma, the Supreme Court held that a manufacturer has no duty to warn of another manufacturer's dangerous product. The case arose from a salt water distiller which, upon installation, had to be insulated with asbestos from another company.
First, the court reasoned that the WPLA did not apply to this claim because the exposure giving rise to the damage occurred prior to enactment. Simonetta had argued Restatment (Second) of Torts 388, which provides a duty to warn where the use of the product could be dangerous. The court looked to existing case law which found 388 only applied in the chain of distribution. The commentary to 388 provides liability where the product seller was in possession of the dangerous chattel, which was not the case here, as the product was not shipped with the insulation, and the insulation was purchased separately.
The other theory the court rejected involved strict liability based on the fact that the desalination machine required asbestos insulation to properly function, and that such a design made it unreasonably dangerous. The court rejected the argument, instead saying that this was essentially a failure to warn.
Justice Stephens, joined by Justices Chambers and Sanders, kept it simple in her dissent, referring to settled products liability law and the restatement, which imposes liability where a manufacturer knows that an intended use is unsafe, as here. The evaporator could not function without the insulation, and through its intended use and normal maintenance, people would be exposed to that insulation (every 3-6 months according to guidelines on the insulation replacement).
The dissent also made quick work of Viad's argument that an opinion in favor of the plaintiff in this case would impose liability on orange juice manufacturer's who fail to warn of the dangerous effects of making a screwdriver. After all, since when is vodka required to make orange juice function properly (although, in my younger days, I might have said it was required).
See Simonetta v. Viad, for a trumpetting of the same arguments. Pipes and fittings manufacturers knew insulation would be required and that it would likely be asbestos.
After a guilty plea to first degree murder, a jury was impaneled to determine if an exceptional sentence was warranted. The court of appeals held that, though no statutory authority existed at the time allowing them to do so, the fact that the evidence was overwhelming on the topic and a statute now existed to do so on remand, the error was harmless. The supreme court disagreed, requiring a resentencing on remand under the new statute.
In instances where a crime can be inflated based on prior convictions, the court has previously held that it was not an abuse of discretion to bifurcate the trial to adjudicate the previous convictions separately to remove prejudice. State v. Oster, 147 Wn.2d 141, 147, 52 P.3d 26 (2002). However, here the court refused to allow a defendant to stipulate to the prior convictions, which would have effectively allowed the same result. In essence, this would treat an element like an aggravating factor. In essence, the flip side of Blakely, which allows stipulation to aggravators if the defendant feels the presence would prejudice him. Those of us in the civil arena see this all the time when insurers stipulate to liability, not wanting the horrible information therein to substantially inflate damages. Why not here? Well, Oster never provided a right to bifurcation, only holding that it wasn't an abuse of discretion to allow it. While the court noted that allowing evidence of similar crimes is usually extremely prejudicial, they refused to remove the discretion from the trial courts on this matter.
The plaintiffs said that WEA took agency fees and spent them illegally. How, you ask? Agency shop fees can't be used for politics under I-134. Because I am bored with this much blogging, I will skip to the end. The teachers had a cause of action for restitution, but not for s. 16 of I-134 or conversion.