Curtis v. James River Insurance Company ( 2019 )

1 Honorable Marsha J. Pechman 2 5 6 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 KELSEY CURTIS, 10 NO. 2:19-CV-01565 MJP Plaintiff, Lt AGREED PRETRIAL ORDER v. 12 JAMES RIVER INSURANCE COMPANY, 13 Defendant. 14 15 ié Under Local Court Rule 16 and the Court’s Minute Entry (Dkt. 21), the parties submit this Agreed Pretrial Order: Is JURISDICTION Defendant is an insurance company organized under the laws of the State of Ohio, with its principal place of business in Virginia. Plaintiff □□ a resident of Washington State. Plaintiff filed suit in King County Superior Court on September 13, 2018. Defendant removed the case to the United States District Court, Western District of Washington, on October 1, 2019, citing 28 U.S.C, 5 § 1332, § 1441 and § 1446. Plaintiff has not objected to the jurisdiction of the federal court. Accordingly, jurisdiction is appropriate based on diversity of citizenship of the parties. 25 26 Peterson | Wampold AGREED PRETRIAL ORDER - 1 Rosato | Feldman | Luna CASE NO. 2:19-CV-01565 MJP 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-3677 PHONE: (206) 624-6800 FAX: (206) 682-1415 1 Il. CLAIMS AND DEFENSES 2 Plaintiff will pursue the following claims at trial: 3 l. Breach of UIM Contract 4 2. Negligence 5 Be Bad Faith 6 4, Violation of the Insurance Fair Conduct Act (IFCA) 5 Violation of the Consumer Protection Act (CPA) 8 Defendant will pursue the following claims at trial: 1. Plaintiff failed to mitigate her damages 10|| 2. A genuine dispute exists as to the amount Plaintiff is legally entitled to recover as compensatory damages from defendant Cooper. 3. Plaintiff failed to properly communicate with James River as to her claim for UM 13]| coverage benefits, including but not limited to engaging in good faith settlement negotiations. 14 Ill. ADMITTED FACTS 15 I, Plaintiff was a passenger in a vehicle operated on behalf of Uber by Yakub Kahn 16 when his vehicle was struck by a vehicle operated by Andie Cooper on October 8, 17 2016. 18 2. Plaintiff sustained certain injuries in the collision. 19 a Defendant issued Policy No. CA436100WA-01 to Rasier, LLC, et al., policy period 20 03/01/16-03/01/17 (“Policy”). 2) 4. The Policy provides uninsured motorist coverage for passengers riding in vehicles 22 covered by the Policy. 23 a Andie Cooper was an uninsured driver. 24 6. Plaintiff made a claim for UM coverage under the Policy. 25 7. Defendant accepted coverage for Plaintiff's UM claim. 26 8. On April 12, 2018, Defendant received correspondence from Plaintiff which set AGREED PRETRIAL ORDER -2 Rosato | reldman | Luna CA □ 2:19-CV-01565 MJP 1501 FOURTH AVENUE, SUITE 2800 some vues FAX: (206) 682-1415 1 forth a settlement demand of $150,000.00. 2 9, On May 7, 2018, Defendant offered $22,376.78 to settle Plaintiff's UM claim. 3 10. On August 23, 2018, Defendant received notice of Plaintiff's intent to seek 4 remedies under IFCA, RCW 48.30.015.11. On September 13, 2018, Plaintiff 5 filed suit in King County Superior Court, Kelsey Curtis v. James River Insurance 6 Company and Andie Cooper, King County Cause No. 18-2-22906-5 SEA. ? IV. ISSUES OF LAW 8 de Whether James River is liable for breach of contract. 9 2 Whether James River is liable for negligence. 10 35 Whether James River is liable for bad faith. 11 4, Whether James River is in violation of IFCA. 12 5. Whether James River is in violation of the CPA. 13 6. Whether Plaintiff is entitled to fees and costs under RCW 48.30.015 and/or RCW 14 19.86.090, 13 V. WITNESSES 16 On behalf of Plaintiff: 17 WITNESS NATURE OF TESTIMONY | STATUS | Kelsey Curtis Plaintiff Kelsey Curtis will testify concerning the | Will testify c/o PWRFL collision, her injuries, as well as any facts that 19] | 1501 Fourth Ave, Suite pertain to the claims at issue in this lawsuit. 20 2800 Seattle, WA 98101 | (206) 624-6800 Steven Strzelec Steven Strzelec will testify about claims- | Will testify | Strzelec Consulting handling standards nationally and in Services Washington. He will testify that James River 23)) | 20719 NE 8th St. failed to meet minimum industry standards for PE mae 98074 | handling UIM claims. He will testify that James River's repeated offer of 50 cents for general 25 damages, non-disparagement and confidentiality is an unreasonable denial of payment of benefits 26 under a UIM policy that contractually requires James River to fulfill the promise of paying all Peterson | Wampold AGREED PRETRIAL ORDER - 3 Rosato | Feldman | Luna CASE NO. 2:19-CV-01565 MJP 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-3677 PHONE: (206) 624-6800 FAX: (206) 682-1415 1 sums that Ms. Curtis is legally entitled to recover as compensatory damages from the owner or 2 driver of an uninsured vehicle. He will testify 3 that James River did not adequately investigate Ms. Curtis’ UIM claim and that James River did 4 not have adequate support to offer 50 cents in general damages to Ms. Curtis. He will testify 5 that James River’s offer appears to be based on conjecture and speculation, not a reasonable 6 investigation. He will testify that in determining 7 how the accident and injury has impacted the insured’s life, a claim handler needs to determine 8 all of the injuries suffered in the accident, the pain and suffering caused by those injuries, and 9 how those injuries and the accident have impacted the insured’s life and insured’s ability 10 to lead their normal pre-accident life. Mr. Strzelec will testify that James River failed to meet its obligation of at least giving equal 12 consideration to Ms. Curtis’ interests. Mr. Strzelec will also testify that James River’s 13 refusal to disclose to Ms. Curtis the UIM policy limits and other provisions even though Ms. 14 Curtis was an insured under the UIM policy is a 15 violation of national first-party claims handling standards. Mr. Strzelec will point out that this 16 industry standard that James River failed to comply with also has a corresponding WAC. 17 Kris Moe, MD Dr. Moe will be called as a witness at trial and | Will testify 18 Harborview Medical will testify regarding his care and treatment of | Center Ms. Curtis following the collision. Please see his Otolaryngology-Head and | medical records previously produced for | Neck Surgery Clinic additional details. Dr. Moe will testify that Ms. 325 Ninth Avenue Curtis sustained facial injuries due to the | Seattle, WA 98104 collision and that her surgery and nasal drainage 206-520-5000 were caused by the collision. He will testify as : to his diagnosis of and prognosis for Ms. Curtis. 23 He will testify that Ms. Curtis’ care and treatment at Harborview following the collision was 24 reasonable and necessary. He will also testify that he referred Ms. Curtis to Dr. Davis for future 25 treatment options due to the permanency of her nasal drainage and will testify regarding the 26 nature of that procedure. Peterson | Wampold AGREED PRETRIAL ORDER - 4 Rosato | Feldman | Luna CASE NO. 2:19-CV-01565 MJP 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-3677 PHONE: (206) 624-6800 FAX: (206) 682-1415. □□ Greg Davis, MD Dr. Davis will be called as a witness at trial and | May testify | UW Medicine will testify regarding his care and treatment of 3 Otolaryngology-Head and | Ms. Curtis following the collision. He will Neck Surgery Clinic testify that Ms. Curtis’ options for treatment of | 1959 NE Pacific, 3rd Floor | her nasal drainage are to continue Atrovent nasal Seattle, WA 98195 spray or undergo Clarifix cryotherapy on her | 206-598-4022 posterior nasal nerve. Dr. Davis will testify that he recommends Clarifix and that the procedure 6 will more probably than not need to be repeated 7 every one to two years for the foreseeable future. 8 On behalf of Defendant: : James Rockwell, MD Dr. Rockwell will be called to testify regarding | Will testify 111! | c/o Machaon Medical his examination of the plaintiff, his review of her D Evaluations medical records, her alleged injuries, whether the 509 Olive Way, Ste 1045 | alleged injuries are related to the accident at 13]| | Seattle, WA 98101 issue, and the necessity and reasonableness of her (206) 323-1999 past medical treatment and suggested future 14 medical treatment. Dr. Rockwell will testify and offer expert medical testimony regarding all 15 matters contained in his report including but not 16 limited to opinions and conclusions about the nature and extent of the plaintiffs alleged {7 accident-related injuries; her medical condition prior to and subsequent to the subject accident; 18 whether her treatment was reasonable, necessary, and related to the subject accident; the need for 19 any future treatment and whether any need for 0 future treatment would be related to the subject accident; the existence of any relevant pre- 91 existing conditions; the causes and etiologies of any medical issues from which plaintiff claims to suffer; and her diagnosis and prognosis. Dr. Rockwell will further testify regarding issues 23 raised by plaintiff's witnesses. 24 ; : : Gena Farrar Gena Farrar will testify concerning the case | Will testify 25|| | c/o Lee Smart, P.S., Inc. handling for plaintiffs UIM_ claim, her 701 Pike St, Ste 1800 correspondence with plaintiffs former and | Seattle, WA 98101 current counsel, as well as any facts that pertain (206) 624-7990 to the claims at issue in this lawsuit. Peterson | Wampold AGREED PRETRIAL ORDER - 5 Rosato | Feldman | Luna CASE NO. 2:19-CV-01565 MJP 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-3677 PHONE; (206) 624-6800 FAX: (206) 682-1415 | Ann Rosato Ann Rosato is one of the plaintiff's attorneys in | May testify Peterson Wampold Rosato | this matter and she may be called to offer | Feldman Luna testimony regarding her communications with 3 1501 Fourth Ave, Ste 2800 | representatives and/or agents of defendant James Seattle, WA 98101-3677 | River Insurance Company. 4|| | (206) 624-6800 5 VI. EXHIBITS Plaintiff's list of proposed trial exhibits: 7 No. Exhibit Stipulated | Authenticity | Authenticity 8 Authentic Stipulated, and and Admissibilit | Admissibility 9 Admissible Disputed Disputed 10 Plaintiff's Exhibits i Claim notes from James River Ins. Co Miscellaneous correspondence | | TX 13 Medical Records from Harborview Medical Center/UW Medicine 14 Medical Record from Greg Davis, 4 MD 1s ER 1006 Summary of Medical Bills | _—~(|—~¥~—*«(| SSS 16 Medical Bill from American Medical Response 17\| | 7 Medical Bills from Harborview Medical Center/UW Medicine |8 | ER 1006 Summary ofMedical Bills | |X| Medical bill from UW Medical Center go] [AO [Photos XT Pharmacy Records Po Xf 21 Defendant’s Exhibits 22 23 24 25 26 Peterson | Wampold AGREED PRETRIAL ORDER - 6 Rosato | Feldman | Luna CASE NO. 2:19-CV-01565 MJP 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-3677 PHONE: (206) 624-6800 FAX: (206) 682-1415 No. Exhibit Stipulated | Authenticity | Authenticity Authentic | Stipulated, and and Admissibilit | Admissibility Admissible Disputed Disputed 3 Claim Notes from James River Ins. Object (in part) to Co p. 41, as this is an 4 effort to admit evidence of claim 5 evaluation while refusing to provide deposition or any other discovery on 7 the same issue, violating Seattle 101 x NW Sec. Corp. v. 8 SDG Holding Co., Ine. 61 Wn. App. 2 725, 744, 812 P.2d 488 (1991) and 10 doctrine of judicial estoppel and fundamental fairness; see Pl. 12 MIL 7. 13 14 15 16 17 18 19 20 2] 22, 23 24 25 26 Peterson | Wampold AGREED PRETRIAL ORDER - 7 Rosato | Feldman | Luna CASE NO. 2:19-CV-01565 MJP 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-3677 PHONE: (206) 624-6800 FAX: (206) 682-1415 1 No. Exhibit Stipulated | Authenticity | Authenticity Authentic Stipulated, and 2 and Admissibilit | Admissibility Admissible Disputed Disputed Letter from Richard Mann to James Object only in part, River Insurance with enclosed to the following: 4 de pp. 5 (reference to POGOe demand amount 5 under Pi. MIL 9, FRE 403-404, 6 408). 7 pp.10,11,17,19,31, 35,43,81, 123 (all references that 8 Plaintiff was “unrestrained;” see 9 Pl. MIL 8, RCW 46.61.68(3) and 10 (6);Amend v. Bell, 89 Wn.2d 124, 570 11!) | 102 K P.2d 138 (1977); FRE 402-403). 12 pp. 39, 147-152, 13 155-164, 173-179 (all references to 14 insurance and insurance 15 payments; see Pl. MIL No. 5, 16 collateral source rule and FRE 402- 7 403). 12 p. 41 (reference to “pregnancy test™ 19 not relevant under FRE 402-403). 0 Email from Gena Farrar to Dana 103 Vizzare, Ann Rosato, Michael a] Wampold, and Jordyn Dargitz with X FRE 402, 403 attached policy and declarations 22 page for Policy CA436100WA-O1 23 ACTION BY THE COURT 24 (a) This case is scheduled for trial before a jury on December 3, 2019. 25 (b) Trial briefs shall be submitted to the Court on or before November 15, 2019. 26 (c) Jury instructions requested by either party shall be submitted to the Court on or before Peterson | Wampold AGREED PRETRIAL ORDER - 8 Rosato | Feldman | Luna CASE NO, 2:19-CV-01565 MJP 4501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-3677 PHONE: (206) 624-6800 FAX: (206) 682-1415 1 November 15, 2019. 2 (d) Suggested questions of either party to be asked of the jury by the Court on voir dire a shall be submitted to the Court on or before November 15, 2019. 4 This order has been approved by the parties as evidenced by the signatures of their counsel. This order shall control the subsequent course of the action unless modified by a subsequent order. 6|| This order shall not be amended except by order of the court pursuant to agreement of the parties 7|| or to prevent manifest injustice. Pp y Oercemet □□ 8 DATED this “$¢ & day of November, 2019. ities aerate 9 af ae Bes □□ We 11 Honorable Marsha Pechman 2 United States District Judge 13 PETERSON | WAMPOLD LEE SMART, PS, INC. 14|| | RoSATO | FELDMAN | LUNA 15 [Mr. Wraith to physically _sign]Steven G. 16 /s/Michael §. Wampold Wraith, WSBA No. 17364 Michael S. Wampold, WSBA No. 26053 Kyle J. Rekofke, WSBA No. 28911 17|| | Tomas A. Gahan, WSBA No. 32779 Attorneys for Plaintiff Attorneys for Plaintiff 701 Pike Street, Suite 1800 | 1501 4" Avenue, Suite 2800 Seattle, WA 98101 Seattle, WA 98101 Ph. (206) 624-7990 19]! | Ph. (206) 624-6800 sgw(@leesmart.com 20 wampold@pwrfl-law.com kjr@leesmart.com gahan@pwrfl-law.com 21 22 23 24 25 26 : Peterson | Wampold AGREED PRETRIAL ORDER - 9 Rosato | Feldman | Luna CASE NO. 2:19-CV-01565 MJP 1501 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-3677 PHONE: (206) 624-6800 FAX: (206) 682-1415 1 2 3 CERTIFICATE OF SERVICE 4 5 I hereby certify that on the date shown below I electronically filed the foregoing 6|| document with the Clerk of the Court using the CM/ECF system which will send notification of 7|| such filing to all counsel of record. 8 Dated: November 15, 2019 9 10 /s/Dana Vizzare i Dana Vizzare, Paralegal 1] 1501 4" Avenue, Suite 2800 Seattle, WA 98101 Ph. 206-624-6800 13 dana@pwrfl-law.com 14 15 16 17 18 19 20 21 22 23 24 26 Peterson | Wampold AGREED PRETRIAL ORDER - 10 Rosato | Feldman | Luna CASE NO, 2:19-CV-01565 MJP 1801 FOURTH AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101-3677 PHONE: (206) 624-6800 FAX: (206) 682-1415