Lawyers use a lot of terms and throw around words that most of us never use in the real world. If this is your first injury case or insurance claim or even if you have never set foot in a courtroom, this glossary may help you find some simple explanations of words that you will commonly hear your personal injury attorney use as your case or claims moves along.
Arbitration – Not to be confused with mediation, arbitration is when you agree to allow a neutral person or persons (an arbitrator) make a binding decision about your case. Usually the plaintiff and defendant will agree in writing to pay a third-party to act as the judge and made a binding decision about the value of your personal injury case. The American Arbitration Association is a good example of an arbitration service that has a pretty comprehensive website at www.adr.org.
See also mandatory arbitration.
Mandatory Arbitration – In Washington courts, any case worth less than $50,000.00 is required to go into mandatory arbitration. Rather than going to trial, the county court will assign an arbitrator to hear the case and issue an award. The difference between mandatory arbitration and private arbitration (See Arbitration) is that the parties have a right to appeal the award by having a jury trial. The catch, however, is that if you appeal the award and do not do better after a jury trial, the appealing party has to pay the other party’s attorney fees. The mandatory arbitration system was created under RCW 7.06 (http://app.leg.wa.gov/RCW/default.aspx?cite=7.06.020) and the Rules of Mandatory Arbitration established by the Washington Supreme Court (http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=sup&set=MAR). Each county also has its own specific rules for mandatory arbitration such as the King County rules (http://www.kingcounty.gov/courts/clerk/rules/MAR.aspx). Most court websites have a link to the local rules. The rules change on a state and county level and should be checked for any updates or amendments.
Negligence – Most of personal injury cases involve a claim that someone was negligent. Put simply, negligence is carelessness or recklessness. When someone accidentally causes a car accident by not paying attention or texting and driving, that person was negligent. In court, a person is negligent when he or she breaches a duty owed to another person and causes that person damages. This duty can be thought of as the degree of care we expect a person to exercise. When that degree of care is not exercised, there is a breach. If that breach causes damages, you have negligence. The Washington Pattern Jury Instructions – which are the instructions given to juries at trial – can be found here.
Damages – The injuries that you suffer are your damages and include economic damages – such as medical bills, lost wages, and funeral costs. Damages also include your non-economic damages which are the more subjective damages such as pain and suffering, loss of enjoyment of life, emotional trauma, and loss of consortium. Washington allows compensatory damages – meaning the damages are measured by the amount of money to make a person whole for the injuries and damages incurred.
Punitive damages – Punitive damages are penalty damages or deterrent damages that are awarded not to compensate the plaintiff but to penalize the defendant. Washington does not have punitive damages for tort claims (such as negligence which is the cause of action in most personal injury cases). Washington does allow certain punitive damages for violations of the consumer protection act (http://apps.leg.wa.gov/RCW/default.aspx?Cite=19.86.090) or violations of the Insurance Fair Conduct act which regulates an insurance company denial of insurance claims (http://app.leg.wa.gov/RCW/default.aspx?cite=48.30.015). The punitive damages in both instances are treble damages – meaning the court may triple the damages.
Party – The parties to a lawsuit are the plaintiffs and defendants who are identified in an action. Sometimes the parties are individuals, such as the persons involved in a car accident, and can also be businesses. Insurance companies are not typically named as defendants or parties unless the case arises from an uninsured motorist claim or an insurance fair conduct claim. If you are suing the person who caused your accident, it is not likely that you can name the defendant’s insurer.
Plaintiff – The plaintiff is the party that brings the lawsuit and files the complaint that initiates the court action. If you were to look at an official court document or complaint, the plaintiff is listed at the top. For example, if John Doe were to file a lawsuit against Don Smith, the case would be called Doe v. Smith. Doe is the Plaintiff. The plaintiff is also the party that must pay the filing fee to initiate the action, as required by Civil Rule 3 (http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr03)
Defendant – The persons or corporations that you sue are known at the defendants and must defend against the action that you bring. For example, if Jane Doe is rear-ended by Bob Jones and decided to bring a lawsuit for negligence against Bob, the case will be called Doe v. Jones. Jones is the defendant. If there are more than one defendant, each defendant is a co-defendant with the other. The defendant is required to file an answer to any complaint brought by the plaintiff and plead defenses which are allowed under Civil Rules 12 (http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr03)
Complaint – The complaint is the document that begins a lawsuit and contains the claims that you are bringing against the defendants. Washington allows the complaint to be a “short and plain statement of the claim.” http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr08 The complaint that your lawyer files will not contain every fact and will be a fairly short document that simply names the parties, identifies the basic facts, and lists the causes of action.
Tort – A tort is a wrongful act that gives rise to civil liability. Torts include acts such as assault, battery, negligence (including car accidents, motorcycle accidents, pedestrian accidents and bicycle accidents), medical malpractice, legal malpractice, sexual abuse, nursing home abuse and negligence, wrongful death, and other claims that you could bring against a person or business. This is not an exhaustive list by any means as there are many different types of tort liability, some created by Washington statutes and others by hundreds of years of court decisions and common law.
Liability – Where the law makes a person or business responsible for your damages, that person or business is liable (not to be confused with libel) for your damages and would owe you monetary compensation. In Washington, the law uses the term “fault” and has various standards to determine who shares fault for causing your injuries. Fault is defined in RCW 4.22.015 (http://app.leg.wa.gov/RCW/default.aspx?cite=4.22.015). More than one entity can share liability for causing your injuries and damages.
Premises Liability – Any case that arises from injuries you suffer on another person’s property or own land or in a building owned by a corporation is a premises liability case. These would include slip and fall cases, elevator and escalator accidents, defective conditions or dangerous conditions on a building such as broken handrails, unsafe parking lots, ice and snow-related injuries, or any other injury that occurs when you are on someone else’s property and a condition of the property causes you injury.
Right of Way – The right of way is a right given to a driver, pedestrian or bicyclist that require other drivers to yield to you. For example, the laws require drivers making a left turn to yield to oncoming vehicles, http://apps.leg.wa.gov/RCW/default.aspx?cite=46.61.185. Drivers are required to yield the right of way to pedestrians and bicycles on sidewalks. http://apps.leg.wa.gov/RCW/default.aspx?cite=46.61.261
Litigation– When your case has moved into the stage where a lawsuit is filed, you are in litigation. All the court proceedings, motions, depositions, arbitrations and mediations are all part of the litigation process. All litigation is governed by the Washington Rules of Civil Procedure which govern how the parties conduct themselves during the course of the case. http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=sup&set=CR
Discovery – During the course of a lawsuit, the court rules allow the parties to request certain information from the other parties. These requests can come in many different forms including depositions in which witnesses and parties must give oral testimony, interrogatories which are written questions, and requests for production which request parties to furnish documents or photographs. All discovery is governed by Civil Rules 26 through 37, and includes the defendant’s right to require you undergo a medical examination. http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr26
Deposition – A deposition is oral testimony given under oath. You may be called into a conference room where another lawyer asks you questions which you must answer. A court reporter will transcribe and take down everything that is said during the deposition. Depositions are a type of discovery and controlled by Civil Rule 30. http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr30
Interrogatories – The parties to a lawsuit and their attorneys are allowed to exchange written questions that must be answered during the course of the litigation. These questions generally ask for information that help the parties understand the claims and defenses that each party will assert and get information about the parties. CR 33 (http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr33) controls the use of interrogatories. In King County, all car accident cases must use court-approved interrogatories, a copy of which can be found through the King County Bar Association (http://www.kcba.org/4lawyers/pattern.aspx)
Medical Examinations – If you claim to have bodily injuries as part of your damages, the defendant and its attorneys can ask you to attend a medical examination with a doctor or medical practitioner. You are permitted to have someone from your lawyer’s office attend the examination with you. The court rules that govern these examinations also require the doctor to produce a report to your lawyer within 45 days of the examination. http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr35. Your own insurance company can also require you to attend a medical examination as part of your Personal Injury Protection coverage in order to determine if your injuries are related to the underlying car accident. These medical examinations are often referred to as Independent Medical Examinations or IMEs, although they are hardly independent and usually very biased against the injured person and slanted toward the insurance companies that pay the doctors for their opinions.
Insurance – The coverage that a person or corporation purchases to protect it against lawsuits and its liability is insurance. In almost every case or claim, you will be pursuing money from the at-fault party’s insurance. You may also be seeking money or coverage from your own insurance company. Car insurance companies that are popular in Washington include State Farm, Allstate, Farmers, GEICO, PEMCO, Liberty Mutual / Safeco / Liberty Northwest, Progressive, Unitrin, Grange, amongst others. Businesses and corporations are insured by a wide-range of insurance companies. Claims may also be made against homeowner’s insurance for premises liability cases and dog bite cases.
Personal Injury Protection – Also referred to as PIP, this is a type of health insurance that can be purchased through your car insurance policy. It is optional insurance that you may decline in writing. PIP is usually purchased in $10,000.00 or $35,000.00 increments and will cover any “reasonable and necessary” medical expenses you incur for accident-related injuries. If you are a bicyclist or pedestrian and are hit by a car, the driver’s PIP coverage (assuming he or she has it) will be available for you. Washington’s insurance laws and regulations include many requirements for PIP insurers. The Office of the Insurance Commissioner offers a wealth of information about PIP coverage (http://www.insurance.wa.gov/your-insurance/auto-insurance/personal-injury-protection/)
Uninsured Motorist Coverage – Often referred to as UM coverage, this coverage is available through your own car insurance to protect you if the at-fault driver did not have insurance. Even though it is illegal to drive without insurance (http://app.leg.wa.gov/RCW/default.aspx?cite=46.30.020), many drivers do not have insurance. Your insurance company will “step into the shoes” of the uninsured driver and is supposed to pay you a fair settlement based upon your injuries and damages.
Underinsured Motorist Coverage – Typically this coverage is essentially written into the same policy and coverage as your uninsured motorist coverage. Underinsured motorist coverage kicks in when the at-fault driver simply does not have enough insurance. Washington law requires all drivers to carry $25,000 in liability insurance – http://app.leg.wa.gov/RCW/default.aspx?cite=46.29.090. If your claim is worth more than $25,000 and the at-fault driver only has the minimum insurance, you can turn to your own insurance coverage to pay you for the excess above $25,000.00 (or a higher number depending on the other driver’s policy and the nature of your damages). Your insurance company will have to approve your settlement with the at-fault driver for his or her “policy limits” before you can make a claim against your insurance company. See Hamilton v. Farmers Insurance, http://law.justia.com/cases/washington/supreme-court/1987/52568-4-1.html.
Policy Limits – Each person who buys insurance in Washington only buys a fixed amount. That amount can vary greatly from the $25,000 policy that GEICO advertises (15 minutes to save 15%???) to large multi-million dollar policies purchased by trucking companies or construction companies. Typically you will hear attorneys refer to policy limits when they believe that a case is worth more than the defendant has in insurance. Insurance companies often will not provide this information until litigation is begun. Often the upper limit of your case will be the policy limit unless the defendant has assets that can be sought.
Judgement-Proof – You may have heard the phrase that a judgment is “not worth the paper its printed on.” If you are pursuing a claim against a person or company that has little in the way of assets or insurance, that defendant may be “judgement proof” in that you can take them to court and never see a penny because the person simply does not have any money to pay you or will declare bankruptcy because he or she has no assets to pay you. Most personal injury cases are pursued against people with insurance.
Government and Municipal Liability – Cities, towns, counties, even the State of Washington and its agencies are constantly involved in litigation. Washington law allows a person to bring a claim against any municipal or state entity, just as you can bring a person or corporation to court. If you are hit by a Metro King County bus, your claim will be against King County. Washington law, specifically RCW 4.92 (http://app.leg.wa.gov/RCW/default.aspx?cite=4.92) and RCW 4.96, http://app.leg.wa.gov/RCW/default.aspx?cite=4.96) set out the requirements for bringing a lawsuit against the State or a local government entity (county, police department, city, etc). You must first file a tort claim form with the government entity and wait 60 days after you file the claim before you can file a lawsuit.
Settlement – If you and your attorney manage to reach an agreement with the other insurance company and its attorneys regarding the value of your case or claim, you will have settled your case. Usually the settlement is reduced to writing in a settlement agreement that is signed by all the parties. If your child is a party or claimant, the court will have to approve the settlement through the minor settlement process.
Minor Settlement – In Washington, minors (persons under the age of 18) are not permitted to enter into settlement agreements. Their parents are also not permitted to sign off on the settlement or accept money on behalf of the minor until the court approves the settlement. A special rules of court exists that establishes a procedure for the court to evaluate the settlement and assign an independent person – called a guardian ad litem – to investigate the case and make sure that the settlement is in the minors interests. http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=SPR&ruleid=supspr98.16
Statute of Limitations – For every types of case, the law establishes a deadline to file a lawsuit before you give up your right to compensation. For a negligence claim (which includes almost all personal injury claims brought under Washington law), you have three years from the date of the incident. A minor has three years from his or her 18th birthday because the statutes of limitations tolls, or freezes, until the minor reaches adulthood. Some factual circumstances can change the statute of limitations, including circumstances where a person is sexually abused as a minor or is incapacitated. When the statute of limitations has run, it means that too much time has passed and the claim is no longer viable. Washington’s statutes of limitations are listed in RCW 4.16. (http://apps.leg.wa.gov/RCW/default.aspx?cite=4.16)
Service of Process – A lawsuit is commenced by filing the lawsuit at the courthouse AND by serving the lawsuit on the defendants. To serve the lawsuit, someone – usually a professional process server – must find the defendant or go to the defendant’s home and hand a copy of the complaint to the defendant. The complaint must be accompanied by a summons which is a separate document that instructs the defendant how to respond to the complaint. This process is governed by Civil Rule 4 – http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr04. If you are suing a corporation that is registered in Washington, you must have someone serve theregistered agent for the corporation. The Secretary of State maintains a database of all the corporations and a quick search at http://sos.wa.gov/corps will help you find and locate the appropriate agent and address. The Secretary of State will also accept service in some circumstances on behalf of non-residents who cause car accidents and corporations whose registered agents cannot be found. Special statutes also govern service of process on specific types of entities such as out-of-state insurance companies who are served through the Office of the Insurance Commissioner (http://www.insurance.wa.gov/laws-rules/service-of-process/how-to-serve/)
Subrogation – Anytime an insurance company pays your medical expenses, your insurance policy will require you to refund or reimburse the insurance company for the accident-related payments that it makes. This seems counterintuitive (and it is) but its written into most health insurance and car insurance policies. When your case settles or you receive an award at trial or arbitration, your insurance company will have its hand out to be paid back. Your attorney can help you negotiate and reduce this amount depending on the circumstances of your case. Washington law and court decisions require that your insurer take a reduction to account for your attorney fees and costs. See Mahler v. Szucs. Health insurance plans that are governed by Federal law, however, are extremely harsh and may require 100% reimbursement of whatever it paid out.
Attorney-Client Privilege – One of the oldest concepts in the law is that any communication between you and your attorney is privileged and cannot be shared with anyone. Your attorney cannot be called to testify about what you told the attorney. We want you to be honest with us and tell us anything, good or bad, to help us develop the best strategy for you. The rules governing attorney client privilege can be found in the Rules of Professional Conduct which govern all lawyers in the state of Washington. http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=RPC&ruleid=garpc1.06
Wrongful Death – When someone dies as a result of someone else’s action, the deceased person’s family can bring a claim for wrongful death against the responsible person or corporation. Whether the death happened in a car accident, construction accident, or someone’s negligence, the wrongful death claim stems from RCW RCW 4.20.10, http://app.leg.wa.gov/RCW/default.aspx?cite=4.20.010 and is controlled by the statute. If a child dies, the parents can bring the claim as well under RCW 4.24, http://app.leg.wa.gov/RCW/default.aspx?cite=4.24.010.
Estate – Whenever a person dies, he or she leaves behind assets – which may include a claim for wrongful death against the person or corporation that caused the person to die. The estate is the term the law uses to refer to all the remaining assets and debts that a person leaves after he or she dies. In each estate, a probate court must assign a personal representative to act on behalf of the estate, unless the person left behind a will that assigns someone already. RCW 11 (http://apps.leg.wa.gov/RCW/default.aspx?cite=11) sets out all the statutory requirements for estates and the appointment of a personal representative.
Personal Representative – Any wrongful death case will involve the appointment of someone to act on behalf of the deceased person’s estate. Because someone must be appointed to act for the estate, your lawyer will consult with your family and hopefully everyone can decide on one person to represent the estate. Typically this is done by a petition to the court for appointment of a personal representative. The court will require a separate probate action be started. The personal representative will have to sign and file an oath and also receives letters from the court clerk indicating that the personal representative has permission to act on behalf of the estate. The King County law library maintains a fairly good instruction book to help someone with this probate process. http://www.kcll.org/guides/probate-law-guide
Mediation – Mediation is another type of alternate dispute resolution (ADR) in which the parties hire a neutral mediator to assist in negotiating a settlement of the claims. Typically the mediator will meet with the parties separately and go over whatever evidence the parties intend to submit and rely upon. Though the mediator has no power to make a decision for the parties, mediation does allow the parties to negotiate through the mediator. Unlike arbitration in which you agree to the arbitrator making a decision, you and your family make the ultimate decision regarding mediation and are not required to accept the amounts offered.
Evidence – Evidence includes all the materials that are submitted in support of your case. In court, evidence and introduction of evidence is controlled by the Rules of Evidence, http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=ER. Evidence includes photographs, testimony from witnesses, expert opinions and testimony, and the documents that we submit, including medical records and bills and any other physical items that are submitted for the judge and jury’s consideration
Expert witnesses – If a witness has knowledge of a subject that is beyond that of a normal person, or lay person, he or she is considered an expert and the court may let the witness testify about technical or scientific aspects of your case. Evidence Rule 702, http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=ER&ruleid=gaer0702, controls expert testimony. The court is permitted to exclude expert evidence that passes a test called the “Frye Test” which allows the court to admit scientific evidence helpful to the jury and any new scientific test or theory must be generally accepted in the scientific community. See State v. Copeland, http://law.justia.com/cases/washington/supreme-court/1996/62417-8-1.html.
Witness – A witness is anyone with knowledge of facts relevant to your case who is called to provide testimony regarding that knowledge. Most witnesses for your case will include eye witnesses to the accident itself, family and friends who know about the effect the accident had on your life, and your doctors who can testify regarding the cause of your injuries and necessity of treatment. We may also have to call expert witnesses such as accident reconstruction experts or experts in building design, just to name a few examples.
Jury – Section 22 of the Washington Constitution, http://leg.wa.gov/LawsAndAgencyRules/Pages/constitution.aspx, guarantees a right to a trial by jury. It is usually necessary for one of the parties to demand a jury, otherwise the trial may proceed before a judge and be known as a “bench trial.” In Washington’s superior courts – as opposed to district courts – juries are usually 12 people chosen from the same county where the court is located. In district court, six person juries are common.
First Party Insurance – Your own insurance is known as first-party insurance. This is the insurance that you buy to protect you and your family or for your own or home. For example, if you buy your homeowner’s insurance and car insurance from Allstate, whenever you file a claim with Allstate you are a “first party” claimant. When you file a lawsuit against someone insured by State Farm, State Farm is the “third party insurer” as far as you are concerned. A first party insurer has some very important duties owed to you and your family and can be subjected to a claim under the Insurance Fair Conduct Act and provisions of the Washington Administrative Code dealing with unfair and deceptive insurance practices, http://apps.leg.wa.gov/WAC/default.aspx?cite=284-30-330. You may use your first party coverage for things like Personal Injury Protection or Uninsured Motorist Coverage. Your own homeowner’s insurance, renters insurance, or insurance on your own property are all first party coverages.
Third party insurance – The at-fault person’s insurance is known as the third-party insurer. For example, if the person who rear-ends you gives you a card showing that he or she is insured by GEICO, then the third party insurer for your accident is GEICO. Whenever you make a claim against the person who hit you, GEICO will step in and defend the driver and also be there to pay you depending on the insurance policy limits and your injuries and damages. There are a few instances where the other driver’s insurance also provides you first party benefits, such as when you are a passenger in a single car incident or you are struck on your bicycle or as a pedestrian. In all those cases, the driver’s car insurance may offer you personal injury protection and also be the third party insurer.
Scheduling Orders – In King County Superior Court and Pierce County Superior Court, you receive a trial date when you file your complaint. The court will also assign a judge to the case. Along with the judge and date, you will also receive a scheduling order that sets out all the important deadlines and dates for your case. The scheduling order will conform to Local Rule 4 and includes all the dates found here: http://www.kingcounty.gov/courts/clerk/rules/LCR_4.aspx.
Filing fee – In order to initial a lawsuit in any county court, you must pay a filing fee. The filing fee, known as the civil filing fee, goes up fairly regularly so you will need to check with the clerk of the court or locate a fee schedule. In King County, the filing fee is $240.00 plus a $2.50 fee for filing electronically. The King County Superior Court fee schedule can be find http://www.kingcounty.gov/courts/clerk/rules/LCR_4.aspx. You also have to pay a filing fee when requesting arbitration, filing an appeal, or starting a probate.
Cross Examination – Cross examination occurs when your attorney has the opportunity to ask questions to a witness called by the defendant. For example, when the defense lawyer’s doctor testifies about your injuries, your lawyer then gets to ask the tougher questions to the defense doctor about how much he is paid to provide opinions and the doctor’s biases. If you take the stand in your personal injury trial, you will be cross-examined by the defense attorney after you testify.
Direct Testimony – The testimony that you and your witnesses put on as part of your lawyer’s case is known as direct testimony. Your lawyer will likely ask you to explain the accident and the injuries that you suffered or may ask an important witness to describe the accident. All this testimony is direct testimony and is considered evidence that your lawyer will put on as part of your case.
Jurisdiction – The ability of a plaintiff to bring a defendant into a specific court, such as King County Superior Court or Pierce County Superior Court, depends on the court’s jurisdiction. RCW 4.12, http://apps.leg.wa.gov/rcw/default.aspx?cite=4.12, allows certain types of claims to be brought in the county where the actions underlying the claim, such as a car accident or truck accident, occurred OR in the county where a defendant resides. For corporations, such as trucking companies or insurance companies, that reside out-of-state, the corporation usually has to do business in the State of Washington or solicit business within the state in order to be hailed into a Washington court. Certain courts also have differing jurisdiction to hear various types of cases. For example, the district courts of Washington (not to be confused with US District Court – which is a federal court) only has jurisdiction over claims less than $75,000.00.
Federal or US District Court – The federal courts also have jurisdiction over certain claims that might involve Washington residents. Washington has two US federal court districts – the US District Court for Western Washington (http://www.wawd.uscourts.gov/), which has courts in Seattle and Tacoma, and the US District Court for the Eastern District of Washington (http://www.waed.uscourts.gov/). Both courts have jurisdiction over cases that involve questions of federal laws, such as the Americans with Disabilities Act or federal civil rights laws. Your case could be removed to federal court as well if the plaintiff and defendant reside in different states and the value of the claim exceeds $75,000.00. Federal judges are also appointed rather than elected and juries must have unanimous verdicts. Subtle procedural issues also differ between federal and state courts and the Federal Rules of Civil Procedure are used rather than the state version.
Removal to Federal Court – 28 USC Section 1441 (https://www.law.cornell.edu/uscode/text/28/1441) allows a defendant to remove a case from state court to federal court when there is diversity jurisdiction – meaning that if the parties al reside in different states, one of the defendants could remove the case to federal court at its discretion if the plaintiff is seeking more than $75,000 in damages. We see this happen often when our client’s bring suit against an insurance company that is headquartered in another state. For example, Allstate sells insurance in Washington but its home office in in Illinois. If you were to sue Allstate in King County Superior Court, Allstate could have the option to remove the case to federal court.
Comparative Fault / Contributory Negligence – Sometimes the defendant may point the finger at you and accuse you of being partially or completely to blame for an accident or injury. When you are alleged to have done something wrong to cause your own injury, the defendant is raising a defense of comparative fault, also called contributory negligence in some states. Washington follows what is known as the doctrine of pure comparative fault. While some states may bar plaintiffs from brining claims if the plaintiff is at-fault (Alabama has such as system), most states, including Washington, still allow the plaintiff to recover. In Washington, you could be as much as 99% at-fault for the accident and still recover the 1% of fault attributable to the defendants.
RCW 4.22.070 (http://apps.leg.wa.gov/RCW/default.aspx?cite=4.22&full=true#4.22.070) requires the jury to apportion fault amongst everyone – all the defendants and the plaintiffs – and that amount must come to 100%. For example, if you argue that the defendant ran a stop sign but the defendant argues that he could not see you because your headlights were not on, the jury may come back and find you each 50% at-fault. If that is the case, the judge will then reduce your award by 50% to account for your contribution to the total amount of fault. There are some exceptions to this rule including the intoxication defense in RCW 5.40.060 (http://apps.leg.wa.gov/RCW/default.aspx?cite=5.40.060) which bars a plaintiff from recovering anything if the plaintiff is more than 50% at-fault and intoxication contributed to cause the accident.
Affirmative Defenses – Whenever a defendant responds to your complaint, the defense attorney must plead certain affirmative defenses which set out the defenses that the defendant will argue at trial. Civil rule 12 (http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=cr&ruleid=supcr12) sets out most of the defenses that the defendant can allege. The defendant may also make a counterclaim or crossclaim in certain situations.
Counterclaim – When you file suit against the defendant, the defendant may turn around and make a claim against you, particularly if there is a dispute over who is at-fault for a car accident or other incident. For example, if you and the defendant are both hurt in the accident and have differing opinions about who caused the accident, you could easily have a situation where the plaintiff and defendant makes claims against each, the defendant’s claim in the form of a crossclaim. Civil Rules 13 (http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr13) requires that the counterclaim be made part of the defendant’s answer if it arises from the same event or occurrence identified in your complaint.
Crossclaim – When two parties who are both plaintiffs or defendants bring a claim against one another, the result is a cross claim. Similar to a counterclaim, the crossclaim is also authorized by Civil Rules 13 (http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr13) allows a defendant to bring a claim against another defendant to the same action. Section G of that rule allows co-parties (meaning parties on the same side of the action – usually defendants) to bring claims against each other. If, for example, you are struck twice in a collision by two different vehicles, you may bring a lawsuit against both drivers and have two defendants. If one defendant was injured and thinks that the other defendant caused the injuries or damages, that defendant could bring a crossclaim against the co-defendant that you already named in the suit.
Summary Judgment – A party may bring a motion to have court rule and enter judgment on specific issues or on the entire case. Civil Rule 56 (http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr56) permits a party, upon 28 days notice to the other parties, to file a motion and ask the court to make rulings as a matter of law. Often we see these motions brought to dismiss a case because, as a matter of law, the court could not let a jury decide the matter any other way and no “reasonable” jury would conclude any different. In state court, a hearing will be scheduled and oral arguments will take place. In federal court, you are less likely to have oral arguments.
Motions – Any time that parties to a lawsuit cannot agree on a matter or ask the court for relief, the parties and their lawyers file motions with the court. These do not occur instantly and require that the parties comply with civil and local court rules in order to schedule a hearing, if necessary, and schedule oral arguments. In King County, most motion hearings occur without oral argument and are based solely on the written submissions. The courts hear many different motions concerning a wide variety of issues from disputes over discovery to motions by one party to dismiss a case.
Clerk of the Court – The administrative aspects of a courthouse are maintained by the clerk. This includes the frontline people that handle and process filings, correspondence, and the massive amount of paperwork and electronic filings that occur every day. The King County Superior Court clerk (http://www.kingcounty.gov/courts/clerk.aspx) assigns case numbers to ever new case filing and then maintains files for every case. If you have questions about something going on at the courthouse, the clerk’s office is where you should start – whether it is to locate a courtroom or determine when your hearing will take place.
Revised Code of Washington – The laws and statutes created by and passed by the Washington legislature is called the Revised Code of Washington, or RCW. All the laws can be found in electronic version on the legislature’s website – http://apps.leg.wa.gov/rcw/. The RCW includes provisions for organization of our courts and the laws that govern everyone in Washington, including rules of the road.
Insurance Fair Conduct Act – The legislature passed this act to prevent insurance companies from unreasonably denying claims brought by its own customers and consumers. If you are insured under an insurance policy, the IFCA allows you to bring a lawsuit if your insurer denies a claim without reason. Before bringing a lawsuit under the IFCA, you must give 20 days notice to the insurer and the Office of the Insurance Commissioner. The forms for providing this notice and initiating a claim can be found through the Insurance Commissioner – http://www.insurance.wa.gov/laws-rules/insurance-fair-conduct-act/file-a-notice/. The IFCA itself authorizes lawsuits for violations of the Washington Administrative Code’s regulations concerning insurance companies and the way they handle claims and communicate with you – http://www.insurance.wa.gov/laws-rules/insurance-fair-conduct-act/ifca-laws/. Your insurer is not allowed to misrepresent the nature of your insurance policy, the facts of your claim or fail to investigate your claim before making a claims decision.
Denial of claim – If you or your family have made a claim with your insurance company, the claim will either by accepted or denied. If it is denied, it means that your insurance company is refusing to cover your loss or pay you under the policy for the loss that you are claiming. This can occur within the context of a homeowner’s claim, car insurance claim, or when you are turning to your insurance company to protect you from a lawsuit or claim by another person.
Insurance Bad faith – Your own insurance company has an obligation to act in good faith when dealing with you. This obligation is established by our courts in the case Tank v. State Farm – http://www.leagle.com/decision/1986486105Wn2d381_1447/TANK%20v.%20STATE%20FARM%20FIRE%20AND%20CASUALTY%20CO and in RCW 4.48.0130 (http://apps.leg.wa.gov/RCW/default.aspx?cite=48.01.030) The insurance company cannot place its own interests above your interests. When the insurance company violates these obligations, it is said to have acted in bad faith and may owe you the damages caused by the bad faith.
Insurance defense – Whenever you file a lawsuit against an at-fault party who has insurance, the insurance company will provide an attorney at the insurance company’s expense to defend against your claims. This person is commonly referred to as an “insurance defense” attorney. Some insurance companies, especially larger ones, will have in-house or staff counsel throughout the country to defend their insureds.
Insurance policy – Every insurance coverage is defined and explained in a document called the policy. Be sure to ask your insurance company for a complete copy of your policy – the full policy, not just the 2 page declaration page that indicates your coverages. Some companies make the policies available online if you sign into the website for your insurance company. If you become confused while reading the policy, don’t worry. You are not alone. Most policies are very difficult to read and include multiple types of exclusions and exceptions to the exclusions. Also make sure you read the addendums to any policy you purchased.
Dram Shop liability – RCW 66.44.200 (http://app.leg.wa.gov/RCW/default.aspx?cite=66.44.200) makes it illegal for a bar or restaurant to serve alcoholic beverages to anyone who is intoxicated or to overserve patrons. When a bar overserves someone who then, due to intoxication, causes injury to another innocent bystander, the bar is liable under a theory known as Dram Shop liability. For example, if the bar overserves a customer who then drives out of the bar and hits a pedestrian, the pedestrian can bring a claim against the bar.
Multiple Defendants / Joint & Several Liability – Your injuries may have been caused by several different people or corporations who share fault for your injuries. As long as you are not to blame at all for your injuries, the multiple defendants are jointly and severally liable for your damages under RCW 4.22.070 (http://apps.leg.wa.gov/RCW/default.aspx?cite=4.22.070). What this means for you is that your damages will be paid by all the defendants together even if one defendant alone has no resources or insurance to pay the entirety of the damages. Let’s use an example.
You cross the street legally in a cross walk. At the time you are crossing, a negligent driver does not see you and hits you. You later find out that one reason you were hit was that the crosswalk was not properly marked and did not have the correct lighting. You can bring a claim against the driver and against the city or county that was supposed to maintain the crosswalk and the case goes to trial. For purposes of this example, assume the driver only has $25,000 in insurance, the minimum allowed in Washington. A jury comes back and gives you $500,000.00 and holds the driver 85% at-fault, the county or city 15% at-fault, and you 0% at-fault. Even though the driver only has $25,000, the city/county would owe you the entirety of the rest because they are jointly liable.
Superior Court – Every county in Washington has a superior court that sits at the county seat. King County has two – one in Seattle and one in Kent. Tacoma hosts Pierce County Superior Court and Everett is where Snohomish County Superior Court is located. Superior Courts are known as courts of general jurisdiction and judges, who are elected, can hear cases on a wide-range of topics including family law (divorce), civil claims for damages – including personal injury cases, criminal matters, and probate matters. RCW 2.08 (http://apps.leg.wa.gov/RCW/default.aspx?cite=2.08&full=true) establishes the basic ground rule for all superior courts.
District Court – Most counties have courts of limited jurisdiction, called district courts, available to hear a limited range of cases including personal injury, traffic and misdemeanor matters. In King County, we have district courts throughout the county. Any case heard in district court can only have a maximum recovery of $75,000.00 and is heard by a jury of six rather than twelve persons. The rules of court are a bit different with district courts following the Civil Rules for Courts of Limited Jurisdiction (http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=clj&set=CRLJ) which alter some of the evidentiary requirements, including allowing experts to testify by declaration instead of live. Filing fees in district court are typically much less than those in superior court.
Court of Appeals – The Washington Court of Appels is the first level appellate court for anyone who believes a trial court committed errors or wrongfully dismissed (or failed to dismiss) a case. The court of appeals is divided into three different districts that are located in Seattle, Tacoma and Spokane. The decisions reached by the justices at the court of appeals are either published and available for reference in future proceedings or unpublished and carry no precedent – a list of recently published decisions are found here http://www.courts.wa.gov/opinions/?fa=opinions.recent#coa.
Supreme Court of Washington – The ultimate judicial authority in Washington is our Supreme Court that sits in Olympia. Nine justices, who are elected, sit and hear cases that are appealed from the Court of Appeals. One caveat is that the court gets to decide which cases it wants to hear through a process called discretionary review. The court essentially only decides cases that are important or that ask new and unanswered questions. The court’s website (http://www.courts.wa.gov/appellate_trial_courts/SupremeCourt/) also allows you to watch and follow the live arguments and hearings at the court.
Workers Compensation – If you are hurt while at work, you can turn to the state’s industrial insurance program for payment of medical expenses, lost wages and compensation for any long-term or short-term disability that you suffer. The workers compensation in Washington is handled by the Department of Labor and Industries (or LNI) which oversees all the payments to you. If your injury is caused solely by your own employer, you cannot bring a lawsuit against your employer unless you can prove that your employer purposefully caused an injury to you. In most circumstances, you must proceed through the workers compensation scheme, which can be a bit complicated without the correct guidance.
Department of Labor & Industries – Also referred to as L&I or LNI, this is the agency within Washington that handles workers compensation claims when a worker is injured on the job. If you are making a claim through the department, their website (http://www.lni.wa.gov/ClaimsIns/) has a wealth of information regarding the claims process and your rights. If your employer is self-insured, you may find yourself dealing with a company such as Sedgwick or Rawlings that handles claims for your employer.
On-the-Job Injuries / Injuries at Work – If you are injured at work due to the fault of someone or a corporation that is NOT your employer, you can bring a claim against that person or corporation. For example, if you are a parking lot attendant and are run over by a car, you can bring a claim against the driver of the car and also make a workers compensation claim for payment of your medical bills and wage losses. The Department of Labor & Industries has a “Third Party” division (http://www.lni.wa.gov/ClaimsIns/Claims/File/3rdParty/default.asp) that deals specifically with these third-party type losses in which you are hurt at work due to someone else’s negligence. Be prepared, however, to pay back L&I for a portion of what it pays out toward your medical and wage loss. Washington law requires that you pay L&I if you pursue a claim.
Personal Injury – In its broadest sense and for the purposes of learning about our firm and the law, personal injury includes any bodily injuries that you or your family suffer and for which you seek compensation from someone else. Car accidents, dog bites, bicycle accidents, slip and falls, construction accidents, childhood sex abuse – these are all broader categories within the personal injury world and for which we commonly represent people throughout Washington.
Child sex abuse – If you or a loved one was sexually abused or molested as a child, there may be hope for compensation despite the amount of time that has passed. Washington has a special law, RCW 4.16.340 http://apps.leg.wa.gov/RCW/default.aspx?cite=4.16.340, that allows three years from the discovery of the abuse or the discovery of the damage done by the abuse during which a person can bring a claim. Typically these claims arise from clergy sexual abuse which has been popularized by the Catholic church’s involvement in lawsuits around the world for hiding and abetting pedophiles within the priesthood. The abuse does not need to be associated with a church or clergy in order to be the basis for a claim or lawsuit. Negligent supervision by adults, including teachers, state and county employees and probation officers can be the basis for such a claim as well.
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