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We're still a little behind--here are the argument summaries for last Tuesday. The Court heard three cases, two in the morning and one in the afternoon. There will be no further arguments until October 6.

Morning Session:

Schneider v. Almgren, No. 851123. Whether the Uniform Interstate Family Support Act should prevent a Washington court from altering a Nebraska divorce decree to add a requirement for supporting a child's college education.

Ms. Schneider and Mr. Almgren were divorced in Nebraska, and Ms. Schneider was awarded custody of their two children. Mr. Almgren was ordered to pay child support as long as the children were minors. But Ms. Schneider moved to Washington and petitioned a Washington court for a modification of the order, requesting that Mr. Almgren help pay for their daughter's college education, even though she would be past the age of majority in Nebraska. The court granted the request. Mr. Almgren is appealing on the grounds that the Uniform Interstate Family Support Act requires that the laws of the original state of issuance (Nebraska, in this case) must govern the duration of support.

Albice v. Dickinson, No. 852600. Whether procedural errors in a foreclosure sale should void the sale and revert title to the original owners.

Christa Albice and her sister Karen Tecca inherited ten acres of property from her parents. Later the Tecca's took out a loan against the value of the property. They got behind on their payments, and received a notice of a foreclosure sale. The Tecca's contacted the loan holder and worked out a payment plan, which they followed. But the loan holder went ahead with the foreclosure sale, selling the property at auction to Mr. Dickinson.

Ms. Albice argues that the sale was invalid because the loan trustee failed to follow the legal requirements for a foreclosure sale. Mr. Dickinson responds that those errors do not change his status as a bona fide purchaser of title to the property.

Afternoon session

Cedell v. Farmers Insurance Co., No. 853665. Whether attorney-client privilege applies in bad faith actions brought by an insured against an insurer, or if the insured must show fraud in order to defeat the privilege.

Bruce Cedell owned a home in Elma that had been insured by Farmers Insurance for twenty years for $100,000. While he was gone one day the house burned down. The local fire department found it to have been an accident. A Farmers adjustor estimated the damage at $105,000. Farmers hired an outside attorney, Ryan Hall, to investigate the matter. Seven months later, Mr. Hall sent Mr. Cedell a letter offering a $30,000 settlement with a ten-day acceptance period.

Mr. Cedell filed a lawsuit, claiming that Farmers owed him a fiduciary duty and had breached that duty by acting in bad faith. During discovery he requested his claims file, but major portions were redacted under the claim of attorney-client privilege. Mr. Cedell argues that the privilege should not apply because of the fiduciary duty owed him by Farmers. The trial court agreed, but Division Two reversed on appeal, ruling that the privilege applied, and that Mr. Cedell had not shown sufficient evidence of fraud to defeat the privilege.

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Mike and I are excited to announce the publication of the second edition of To Protect and Maintain Individual Rights, a guide to Article I of the Washington State Constitution. This is a one-of-a-kind resource for practitioners and citizens alike. I always keep a copy handy at my desk for whenever a constitutional question arises. 

The book provides a section by section analysis of the Washington Constitution’s Declaration of Rights. In it we review the state’s 1889 constitutional debates, contemporary accounts of the convention, and significant cases that have dealt with the rights guaranteed in the Washington Constitution. 

Our goal in writing the book was to help citizens become more familiar with their state constitution because individual rights are often afforded greater protection there than in the United States Constitution.

Washington Supreme Court Associate Chief Justice Charles Johnson kindly wrote the forward to the book. First published in 2008, we've updated it with analysis of some major new decisions issued by the state supreme court.

You can order a copy directly from our publisher.

Coming soon...a high quality edition of the full Washington State Constitution and U.S. Constitution in one volume.

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The Court began its fall session on September 15 with a full slate of arguments. It will hear arguments once more in September, on the 22nd, and then not again until October 6.

Arguments from the 15th:

Clausen v. Icicle Foods, No. 852006. Whether attorney fees and punitive damages were improperly awarded in a personal injury claim under maritime law.

Seaman Dana Clausen was injured while unloading an Icicle Foods barge, and sued for damages. He won and was awarded compensatory damages, attorney fees and punitive damages. Icicle appealed on two grounds. First, that under both state and federal law the attorney fees should have been decided by the jury, but they were awarded by the judge. Second, that maritime law prevents punitive damages from being more than the compensatory damages, and thus the large punitive damage award to Clausen was improper.

Vision One v. Philadelphia Indemnity Insurance, No. 853509. Contradictory decisions were made by appellate courts regarding the meaning of "resulting loss" exceptions in insurance policies. The Supreme Court is asked to clear up the dispute.

Philadelphia was the underwriter for a $12.5 million all-risk insurance policy on Vision One's construction project. Vision was building an elevated concrete walkway when a slab collapsed due to faulty shoring equipment. Philadelphia denied Vision's claim for the expenses related to cleanup and repairs of the site, based on exclusions in the policy for faulty workmanship and design. There is a "resulting loss" exception to these exclusions, however, but the Division One Court of Appeals ruled that the exception did not preserve Vision's coverage. But two weeks later Division Two ruled that such an exception did preserve coverage in a similar situation (Sprague v. Safeco Ins. No. 857946).

Lauer v. Pierce County, No. 851778. Whether a building permit application can fully vest if the application is incomplete or there are facts in dispute.

The Garrisons purchased waterfront property in Gig Harbor in 2002, and decided to build a new residence on the property in 2004. Their building permit application was granted. In 2005 the county's Critical Areas Ordinance was revised with stricter guidelines on buffers for streams. The Garrison's have a drainage stream on their property, and planned to build their new home close to the stream. They applied to the Department of Fish and Wildlife for a variance permit in 2007. At issue is whether their building permit fully vested in 2004, meaning the old CAO rules would still apply, or whether they must meet the new, more stringent requirements. The petitioners claim the Garrisons did not properly label the stream and a nearby trail on the original building permit application, so it shouldn't have vested.

State v. Pannell, No. 854378. Whether time spent in community custody (house arrest) should count as time in custody when calculating maximum sentence lengths.

Daniel Pannell was sentenced to 116 months of confinement and three years of community custody after pleading guilty to first degree incest and four counts of second degree child molestation. The court suspended the sentence and ordered Pannell to serve the equivalent time in community custody.

Later the state asked for the sentence to be reinstated because Pannell violated the terms of his community custody. The court agreed, ordering Pannell to serve his 116 months of custody plus 3 years of community custody. Pannel appealed, arguing that the combined total would violate the statutory maximum of 120 months in confinement. The Superior Court and Court of Appeals sided with the state, finding that community custody is not the equivalent of confinement.

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