Victory for Washington estates against aircraft industry

Supreme Court hands significant victory for estates of persons who perish in aircraft accidents Small aircraft are popular in the Pacific Northwest, just come to Anacortes and the San Juan Islands on a sunny day and you will find the place abuzz with activity. But when the worst happens, does the estate of a airplane crash victim have the right to sue the aircraft manufacturer under Washington tort law? Today,…

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Implied easements? A necessary primer

You buy prime undeveloped property on a lovely island.  A couple of gravel roads lead to your lot. Based on the topography of the lot, one of the roads is more convenient for future development. One day, you decide to build, but you now learn that you cannot use the convenient road because you do not have an easement.   What about that gravel road that leads right to your…

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New Power of Attorney Law in 2017

What is new for your powers of attorney documents in 2017? On January 1, 2017, the Washington Uniform Power of Attorney Act, Chapter 11.125, RCW.  comes into effect and the new law will bring Washington’s requirements in line with many other US jurisdictions. A power of attorney is a document through which the principal (i.e. the person signing the document) gives a trusted person (“agent” or “attorney-in-fact”) the authority to…

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Neighbor entitled to remove encroaching tree through self-help

No duty of due care to prevent damage to tree imposed on neighbor A large portion of the roots from a tree growing on owner’s property had encroached onto the property of her neighbor. After the neighbor removed the encroaching roots, owner sued her neighbors for damage to the trees, for nuisance and for timber trespass. The  court ruled that the neighbor was entitled to remove those portions of roots that had encroached onto…

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Landlord is accountable for security deposit delay

Security deposit to be returned unless circumstances beyond landlord’s control prevent it from providing a statement In today’s ruling, the Court provided long needed guidance as to the circumstances under which a landlord may delay the return of a security deposit to tenant. Goodeill v. Madison Real Estate, Nov. 3, 2015 – 32442-7. The Court reviewed whether RCW 59.18.280 precludes her landlord from retaining a portion of her security deposit because it…

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No tenant emotional distress damages for relocation assistance

No emotional distress damages for tenants under relocation assistance provision of RLTA The Residential Landlord Tenant Act, RCW 59.18.085, which is intended to provide relocation assistance to tenants, does not allow emotional distress damages–this is the 5:4 holding of the Washington Supreme Court today. Segura v. Cabrera, (Oct. 29, 2015 – 90088-4). Landlord rents premises to tenant in violation of City Code Cabrera bought a house in Pasco and obtained a license…

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Homeowners’ association not to restrict condo lease percentage quota

Homeowners association restrict condo lease

Homeowners’ association needs supermajority to restrict condo lease percentage quota Today the Supreme Court ruled that a homeowners’ association may not unilaterally restrict condo leasing percentage quota, rather it needs to have the supermajority vote required by the HOA Declaration.  Filmore, LLLP v. Unit Owners Ass’n of Centre Pointe Condo, Sep. 3, 2015 – 90879-6. The case relates to Centre Pointe Condominium is a residential condominium complex in Bellingham,Washington. The Court…

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Non compete reasonable? Standard refined and doctors not exempt

A physician’s employment agreement with health care facility included a noncompete covenant that prevented him from practicing cardiology competitively in Pierce County or Federal Way for five years after termination. The doctor sought declaratory relief that the noncompete covenant was unenforceable and the trial court concluded that the geographic and temporal restraints in the noncompete covenant were unreasonable. It reformed the restraints by reducing the geographical limitations on Emerick’s cardiology practice to a two mile radius…

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The ‘two witness’ rule is mandatory for a valid will

The ‘two witness’ rule must be strictly observed will to be valid In math, two times one is equal to one times two. But not in probate law. Two substantially similar wills, both leaving all assets to the same person and executed days apart, and both attested (i.e. witnessed) by a single witness, are not equivalent to one will attested by two witnesses, held the Court in  Estate of Burton (Aug. 18, 2015…

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A ‘termination for convenience’ clause is enforceable, Court rules

A ‘termination for convenience’ clause is enforceable when supported by adequate consideration, ruled the Court of Appeals, Div. 1, in a case of new impression. SAK & Associates v. Ferguson Construction,  (Aug. 10, 2015 – 72258-1). The case comes to the court from the construction industry. The plaintiff, SAK, entered into a fixed sum contract with Ferguson Construction to provide concrete materials and paving services for the construction of airport hangars.…

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Can a homeowners’ association ban parking on city streets in its borders?

Can a homeowners’ association ban parking on city streets in its borders? A homeowners’ association (HOA) typically has vast authority to regulate community life within its borders, from square footage and appearance of homes to garbage enclosures and yard landscaping. But, can it prohibit its members from overnight parking on a city street within the community when any other person, such as a visitor or a neighbor, can park there? If the…

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New Directed Trust Act and trustee delegation powers

On July 24, 2015, Senate Bill 5302 adopted the Directed Trust Act and made significant changes to the rules on a trustee’s delegation of power, RCW 11.98.070(27). A quick review of the Senate Bill Report will shed light on the key changes in the law. A. Understanding the Basics 1. What is a Trust? A trust is a form of ownership of property that separates responsibility or control of the…

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Workers paid by the piece entitled to paid rest breaks

In a case of local interest, the Washington Supreme Court ruled today that employees compensated “by the piece” must be paid for rest breaks  just like their hourly counterparts.  Demetrio v. Sakuma Bros. Farms (Jul. 16, 2015 – 90932-6).  In this case of first impression involving our local berry producer, Sakuma Bros. Farms, the court created a level plain field for all  workers, regardless of how they are paid, provided clear guidance to employers, and…

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Limited liability company law changes in 2016 – the new Washington LLC Act

What is new for Washington LLCs in the 2016 Limited Liability Company Act? Limited liability companies in Washington State get a face-lift – a new LLC Act will become effective on January 1, 2016. The new LLC Act will completely replace the one currently in place. Existing LLCs will not be affected by the new Act until January 1, 2016 and all “actions commenced, proceedings brought, or rights accrued before January 1, 2016” will be governed by the…

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Ex wife beneficiary designation on husband’s plan rules

Does an ex wife beneficiary designation on husband’s retirement allow her to receive the benefits? Yes, the Court of Appeals, Div. 1, ruled today, thus reversing the trial court’s decision allowing the Estate to recover Employment Retirement Income Security Act (ERISA, 29 U.S.C. § 1001, et seq.)  benefits after they had been distributed to the designated beneficiary, his former wife. ERISA preempts state law The Estate argued that the former wife waived…

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Attorney fees mandatory for underground utility damage

1. Attorney fees mandatory under Underground Utility Damage Prevention Act, Court rules Are attorney fees mandatory for underground utility damage? Yes, both at trial and on appeal. Today, the Court of Appeals, D II, held that the award of attorney fees under the Underground Utility Damage Prevention Act was mandatory to the prevailing party where a neighbor using a backhoe to remove a stump negligently damaged a drain pipe, thus causing flooding to the adjoining property. Hayfield…

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No right to unemployment benefits if only part-time work desired

Today, in Darkenwald v. Emp’t Sec. Dep’t, (90544-4), the WA Supreme Court addressed whether a desire to work only part time constitutes a good cause reason for leaving work, thus permitting an individual who leaves work for that reason to collect unemployment benefits. The appellant, a dental hygienist, claimed that her employer’s request that she increase her working hours to three days per week gave her good cause to leave work because she…

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Is your arbitration agreement enforceable?

Arbitration strongly favored in Washington Washington has a strong public policy favoring arbitration. In Romney v. Franciscan Medical Group, 71625-5-1, Div. I (February 17, 2015), the Court reiterated this clear policy upholding an employer-employee arbitration agreement even if certain provisions of the agreement are substantively unconscionable so long as those provisions are severable. The Romney Case Three medical professionals entered into an employment contract with Franciscan Medical Group that included agreements…

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Employer ‘stay-at-work’ subsidy payments here to stay

Employer ‘stay-at-work’ subsidy payments upheld Employers are entitled to subsidy payments under the stay-at-work program without time restrictions, the Court of Appeals ruled today in Cascadian Building Maintenance Ltd, v. Dept. Of Labor & Industries, (Div. 1, Feb. 2, 2015 – 71209-8). Cascadian Building Maintenance appealed the denial of its stay-at-work wage reimbursement for the first 3 of the 6 days its employee worked light duty following her industrial injury and the Court sided…

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Accountant owes duty to third party, appellate court rules

Accountant owes duty to third party Certified public accountants (CPAs) owe a duty of care to third parties (non-clients) and can be held liable for damages if, through their action or inaction, the third-party suffers injury as a result, held today the Court of Appeals, Div. 1, in Dewar v. Smith, (69701-3-1, 7019-8-1, January 26, 2015). The key aspect of this case is that the accountant was not engaged by the third party, but…

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An “apple a day” for your business – prevention is better than cure

“Prevention is better than cure,” you have heard that one before, right? Among the many things the practice of law and medicine share (such as malpractice law suits, stress, etc.), there is also the common notion that staying out of trouble is much better than fixing the trouble when it comes. If genes and environmental pollutants are something most of us would have to live with, we also believe that…

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You are a woman business owner, is your estate plan in order?

Estate and business succession planning for women in business You are a successful woman business owner or you are just starting out. You are planning for retirement or have your very first month in the black. You are passing the baton to a younger business partner or thinking whether your best friend will go into business with you. Is that you? If so, what is your plan? The answers to…

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