WA Legal Roundup (Including quick take on Wyeth)
I've been a bit busy the last couple days, so this will be brief. Included in this post is one opinion out of the other Washington, the Supreme Court opinion in Wyeth. Because there's a lot to do though, I will keep it boiled down to the bare essentials:
March 3, 2009
Land use decision. Per my usual policy, I will simply call land use attorneys nerds and let them read it on their own time.
Don't get me wrong, some great friends of mine do land use. But that doesn't make them any less nerdy.
To waive your right to appeal, it has to be knowing, intelligent, and voluntary (as most waivers). In the appeal context, this means you have to have been informed that not reporting to jail while pursuing your appeal would waive that right. Tran was not informed of this fact, so when he failed to report, he didn't waive his right to appeal in the process.
March 5, 2009
Homeowners ask their insurance company to insure home for its full value. The insurance company doesn't, instead having a cap of 193K. The home, worth 328K is, is destroyed in a fire. The homeowners brought CPA and Bad Faith claims against Big Bend. Both were dismissed in the trial court.
The crux of this matter was the way in which Big Bend determined replacement value for coming up with coverage. Instead of using an appraiser, they used a software system which involved plugging in square footage and the like. Thought the software spit out a number of 223k, Big Bend showed the value of 193k, which was the previous estimation prior to their seeking full coverage, adjusted for inflation (meaning the updated calculation was never entered into the system). Even though they sought increased personal property coverage from 50 to 70 percent, the increase was never entered as well.
The court found for the homeowners in the Negligent Misrep claim, which gave them their damages, but only as to what should have been in their policy had it been entered.
As to the Bad Faith claim, the court of appeals, in affirming the trial court, stated:
There was no evidence that Big Bend agreed to conduct a professional real estate appraisal or to obtain bids and consult builders or other experts to determine the full replacement value of the home.
. . .
The trial court did not err by using the $240,000 figure from the cost guide as the estimate of the home's replacement value. The evidence establishes that Mr. McCalmant agreed to provide an estimate based on the cost guide formula. The evidence does not support the assertion that Mr. McCalmant agreed to obtain full replacement coverage for the Petersons.
As to the CPA claim, in allowing it back in, the court stated:
To establish a violation of the CPA, the Petersons must also meet the public interest prong. The public interest prong is satisfied by "a showing that a statute has been violated which contains a specific legislative declaration of public interest impact." Hangman Ridge, 105 Wn.2d at 791. RCW 48.01.030 states that the business of insurance is affected by the public interest. Thus, a misrepresentation about the Petersons' coverage was a matter impacting the public interest. See Shah, 130 Wn. App. at 87. The court erred by dismissing the Petersons' CPA claim against Big Bend. The Petersons have established their CPA claim against Big Bend.
WA Supreme Court
First, I think this case title sets the Amateur Law Professor record for longest case name!!!!!! Unfortunately, there is no prize, just the prestige awarded to Justice Stephens for authoring the majority.
Second, this case involves construction defect claims beyond the six year statute of limitations on contracts. The fire protection applied to steel beams and columns didn't take due to using an incompatible primer. The trial court granted summary judgment on statute of limitations. The court held that the lawsuit is being brought for the benefit of the state and is thus exempt from the six year limit. In order to be for the benefit of the state, the action by the municipality must "[arise] from an exercise of powers traceable to delegated sovereign state powers." Reviewing case law that public recreational facilities are traceable to sovereign state powers, the court had no trouble including Safeco field in that category.
Reversed and remanded.
In a stunning punt, the Supreme Court refused to consider whether the supermajority requirement of RCW 43.135.035(1), which requires a supermajority for revenue or revenue shifting bills, is constitutional. Previously, the court had punted as nonjusticiable, because I-601 had not yet taken effect. Since then, the legislature has kept the RCW rolling with amendments, reaffirming itself what was previously just the will of the voters. In 2007, I-960 was on the table, which amended RCW 43.135.035(1), and a pre-election challenge to it was held non-justiciable as well.
Here, the court framed the issue as:
Is a writ of mandamus ordering the president of the senate to forward a bill to the house that did not receive the statutorily required two-thirds vote an appropriate remedy where the petitioner argues the two-thirds vote requirement of RCW 43.135.035(1) is unconstitutional?
The court reasoned that, while a mandamus is appropriate for constitutionality issues regarding revenue and spending, it has to be careful not to overstep its bounds in intrahouse disputes:
Before Owen's parliamentary ruling triggering this dispute, Brown appeared to urge Owen to declare RCW 43.135.035(1) unconstitutional. Owen refused to do so, observing that it is the duty of the judiciary to make legal rulings. Having failed to convince Owen to make a legal determination, she now asks this court to make a parliamentary ruling. We decline to do so.
. . .
This original action is improperly before this court on application for a writ of mandamus and is a nonjusticiable political question. Intervention of this court into an intrahouse dispute over a parliamentary ruling to compel the president of the senate to perform a discretionary duty would be a grave violation of separation of powers. We dismiss the action.
For those interested in the state's take on separation of powers, especially in relation to parliamentary function, the opinion is a great read.
SUPREME COURT OF THE UNITED STATES
For those of you that remember Medtronic, it seemed like we were the edge of the world, staring outinto darkness and ready to fall off, with the Court ruling that the FDA approval process for medical devices preempted state law claims on failures of those devices.
Enter Wyeth, with a failure to warn claim. Applying Medtronic, the worry was that those claims would also be precluded, as warnings involved an FDA approval process as well. However, reasoning that the Defendant had the ability, absent FDA approval, to offer additional warnings of newly discovered dangers, the Court found that the state law claims were not preempted.
I know this is a very cursory examination, but there is plenty more literature on the Internet discussing the impact of both cases.