Barriga Figueroa v. Prieto Mariscal

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MONICA DIAZ BARRIGA
FIGUEROA, as parent and
natural guardian of BRAYAN No. 95827-1
MARTINEZ, a minor,
Respondent,
V. Filed M/iy 2 3 2019
CONSUELO PRIETO MARISCAL,
individually and the marital property
thereof, if any.
Petitioner.
Gonzalez, J—Washington law extends work product protection to
statements made by an insured to an insurer following an accident in light of the
specific parties involved and the expectations of those parties. We must decide if
that protection applies here, where the insured has gained the status of insured by
statute, rather than by contract. We hold it does. We affirm the Court of Appeals
and remand to the trial court for a new trial.
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
Facts
On October 30, 2013, Consuelo Prieto Mariscal was driving her minivan in
Pasco, Washington, with her daughter. There were vehicles, including an orange ,
pickup truck and a van, on the right side of the road. As Prieto passed the orange
pickup truck, she heard a noise, felt her van jump a little, and saw a boy, Brayan,
lying on the ground. Realizing Brayan was seriously hurt, her daughter called 911.
Brayan was taken to a nearby hospital.
A police officer spoke with Prieto and her daughter but not Brayan or his
mother, Monica Diaz Baniga Figueroa. Prieto and her daughter both told the
officer they did not see how the accident happened. Although there were no other
eyewitnesses, and although the officer spoke only with Prieto and her daughter, he
wrote in the police report:
On 10/30/13 at 1456 VI was traveling S/N 400 block of North Cedar when
an 8 YOA age child on a bicycle rode into the roadway and directly in front
of VI. There were two parked vehicles on the shou[ld]er ofthe roadway that
created a blind spot for the driver of V1. When the bicyclist pulled into the
roadway the rider was struck on the left side and fell to the ground. The
passenger side front tire then drove over the child['s] right front leg. The
child was [transported to] an area hosp[it]al via ambulance for treatment.
Clerk's Papers at 305. Brayan gave a number of statements about the accident.
Brayan's most detailed version of the accident is that his right shoelace got stuck in
the spokes of his bike and his right leg was run over when he leaned over to
untangle the shoelace.
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
Three weeks after the accident, Diaz went to a local law firm to seek help.
Diaz was asked to sign a blank personal injury protection (PIP) application form,
so she did. Diaz is a monolingual Spanish speaker, and the legal assistant who met
with her is a monolingual English speaker. This presigned PIP form was filled out
later by the legal assistant based on the police report. Section five of the form
asked for a brief description of the accident. Mirroring the police report, the legal
assistant wrote:
Vehicle was traveling on North Cedar when child on a bike rode into road.
There were 2 parked cars on the road creating a blind[] spot for the driver.
Child was struck & had right leg ran over.
Def.'s Ex. 101, at 1. In addition to seeking PIP coverage, Diaz also sued Prieto on
behalf of Brayan. The significant difference between the PIP form and Brayan's
testimony became a central issue at trial. Prieto's counsel stressed the differences
between Diaz's and Brayan's testimony and the PIP form; Diaz's counsel stressed
that the PIP form was based on accounts from people who did not see the
accident.'
During opening statements, Prieto's counsel referenced the PIP form over
Diaz's counsel's objection. After opening, out of the presence of the jury, Diaz's
'Experts for both sides testified the injuries were inconsistent with the injuries that would have
been present had he in fact ridden his bike into the road and been struck as he was riding.
During trial, Diaz testified she would not have signed the PIP form had she known what the
description was going to be because she did not agree with it.
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
counsel addressed Prieto's counsel's use of the PIP form in opening and moved to
exclude any further reference to it:
Your Honor, in anticipation of today's trial, in defendant's opening he
brought up some piece of evidence that I think he might try to bring up
again.
One was a Personal Injury Protection application. . . .
It's a first-party application and privilege is not waived when you
submit something to first-party insurance. And, in fact, first-party insurance
is not supposed to share the PIP file with defense without permission of
plaintiff.
In this case, he somehow got a copy of the PIP application. This
raises a number of concerns. The PIP application is a no-fault insurance
application, meaning that the description of the accident has no bearing on
whether or not you get benefits in a PIP application.
He wants to use this PIP application as a statement against interest of
[Diaz]. . . .
. . .[Because this is a privileged document,] even though he already
referenced it in his opening, and I objected to it then, I would move to
exclude any further reference to this Personal Injury Protection application.
1 Report of Proceedings(RP)(June 2, 2016) at 119-21. Prieto's counsel
responded:
First of all, this document is not privileged. . . . This is an application form
for Personal Injury Protection benefits for Brayan's treatment.
There is no law that the PIP application is not to be shared with
defense counsel. Plaintiff has not cited to you any authority. That's
important to keep in mind.
The PIP insurance coverage is, in essence, a no fault benefit provided
on the insurance policy insuring Ms. Prieto. Okay?
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
So it's her insurance company that's providing this benefit of medical
coverage to Brayan. There is no law that certainly the plaintiff has cited that
prevents that information to be shared with me or Ms. Prieto's insurance
company.
Id. at 121-22. The court then took a voir dire examination of Diaz to establish her
knowledge of the PIP form and who filled it out.
After voir dire, and after argument by counsel for both sides, the court
concluded:
Well, it's sort of odd this particular statement... we have a statement
signed by a party and yet, so arguably, it's a statement by the party versus
the agent speaking on her behalf, which what we have here is this statement
on its face doesn't show that it was the agent.
Now, we have testimony that does show that it was an agent who
spoke essentially or had the party's authority to write it, because she
essentially signed it and handed it over.
So the Court is going to find, first, that it's not a privileged document.
That in redacted form, it doesn't violate the motion in limine as to collateral
source. I do find it's an admission against interest under the rule as cited.
It will be allowed and that's my ruling.
Id. at 134-35. A redacted version of the PIP application was admitted into
evidence. See Def.'s Ex. 101. Prieto's counsel then used the application to cross-
examine Diaz:
Q. And three weeks after [speaking with Brayan about the accident at
the hospital], you signed what's been admitted as Exhibit 101, with a
description of the accident. Con*ect?
A. I signed it when it was blank.
Q. Okay. And the description reads,"Vehicle was traveling on North
Cedar when child on bike rode into road. There were two parked cars on the
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
road, creating a blind spot for the driver. Child was struck and had right leg
ran over."
Correct?
A. I didn't know — I didn't know about that.
Q. But that's what the description states. Correct?
A. Yes. But I guess they got that from the police report because if I
would have loiown that they were going to write that on it, I would not have
signed it because I'm not in agreement with that.
2 RP (June 3, 2016) at 298-99. Prieto's counsel also used the application to cross-
examine Diaz's accident reconstructionist, to support Prieto's reconstructionist's
expert opinion, and, in closing argument, to question Diaz's credibility. Use of the
PIP form was extensive, and the PIP form was the primary exhibit in the case
because the police report was excluded as substantive evidence at trial as hearsay.
The jury returned a defense verdict. The Court of Appeals reversed, holding
the PIP application was work product and its admission was prejudicial, requiring a
new trial. Barriga Figueroa v. Prieto Mariscal, 3 Wash. App. 2d 139, 414 P.3d 590
(2018). We granted Prieto's petition for review and denied the issues raised by
Diaz. Barriga Figueroa V. Prieto Mariscal, 191 Wash. 2d 1004, 424 P.3d 1214
(2018). Washington State Association for Justice Foundation filed an amicus brief.
Analysis
I. Quasi-fiduciary relationship
Since 1993, the State of Washington has required all insurers to offer PIP
coverage to all automobile liability policyholders. See Laws OF 1993, ch. 242.
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
PIP insurance is designed to provide the insured with an immediate source of
payment for out-of-pocket expenses resulting from an automobile accident. PIP
benefits are available to an insured without proof of fault, and a pedestrian injured
in an automobile accident is statutorily defined as an "insured." RCW
48.22.005(5)(b)(ii). Brayan, therefore, was an insured under Prieto's PIP
coverage. Id.; cf Matsyukv. State Farm Fire & Cas. Co., 173 Wn.2d 643,654 n.4,
272P.3d802(2012).
Under Washington law, insureds and insurers are in a quasi-fiduciary
relationship. See Van Nay v. State Farm Mut. Auto. Ins. Co., 142 Wash. 2d 784, 793,
16 P.3d 574(2001); Tank v. State Farm Fire & Cas. Co., 105 Wash. 2d 381, 385-86,
715 P.2d 1133 (1986). This quasi-fiduciary "relationship exists not only as a result
of the contract between insurer and insured, but because of the high stakes
involved for both parties to an insurance contract and the elevated level of trust
underlying insureds' dependence on their insurers." Tank, 105 Wash. 2d at 385.^
Thus the quasi-fiduciary relationship arises not only out of the contract but also out
of the type of occurrences that are covered by insurance, the high stakes of
insurance litigation, and the necessary trust and reliance that an insured places on
^ Tank held an insurer must give equal consideration" to the insured's interests as its own.
Safeco Ins. Co. ofAm. v. Butler, 118 Wash. 2d 383, 389, 823 P.2d 499(1992)(quoting Tank, 105
Wash. 2d at 385-86). Although the Tank court characterized the relationship as a fiduciary
relationship, later case law restated the relationship as a quasi-fiduciary relationship. See Van
Noy, 142 Wash. 2d at 793.
7
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
its insurer. See Br. of Amicus Curiae Wash. State Ass'n for Justice Found, at 8
("An insurer's duty to exercise good faith is not limited to its contractual obligation
to pay benefits, but 'permeates the insurance arrangement.'"(quoting St. Paul Fire
& Marine Ins. Co. v. Onvia, Inc., 165 Wash. 2d 122, 129, 196 P.3d 664 (2008))).
By making the PIP claim on the tortfeasor's insurance company, the
insurance company is also the pedestrian's insurer. RCW 48.22.005(5)(b)(ii).
Even without a contract, the PIP claimant is required to cooperate with the insurer
or risk denial of coverage.
We hold that an insurer owes a pedestrian PIP insured the same quasi-
fiduciary duties that it owes a named insured who purchases a policy. Specifically,
the '"insurer must deal fairly with an insured, giving equal consideration in all
matters to the insured's interests.'" See Van Noy, 142 Wash. 2d at 794-95 (emphasis
omitted)(quoting Tank, 105 Wash. 2d at 386). This approach is consistent with our
common law and the plain language of RCW 48.01.030, which requires insurers to
act in "good faith, abstain from deception, and practice honesty and equity in all
insurance matters." (Emphasis added.) With this quasi-fiduciary relationship in
mind, we turn to the work product issue.
II. Work Product
The Court of Appeals found the PIP form was protected work product. We
agree. The work product rule states:
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
[A] party may obtain discovery of documents and tangible things otherwise
discoverable under subsection (b)(1) of this rule and prepared in anticipation
of litigation or for trial by or for another party or by or for that other party's
representative (including a party's attorney, consultant, surety, indemnitor,
insurer, or agent) only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of such party's case and
that the party is unable without undue hardship to obtain the substantial
equivalent of the materials by other means.
CR 26(b)(4). Where the insured was the policyholder, we have held work product
protections apply. See Heidebrink v. Moriwaki, 104 Wash. 2d 392, 396, 706 P.2d 212
(1985); Harris v. Drake, 152 Wash. 2d 480, 490, 99 P.3d 872(2004). Here, the
insurance relationship exists as a matter of statute, not contract. Nonetheless, we
find the overarching reasoning ofHeidebrink and Harris applies because the
specific parties are in a quasi-fiduciary relationship. As such, Diaz may reasonably
expect her insurer to give equal consideration to her interests as its own and has an
expectation of confidentiality in the forms she submits.
Heidebrink is the leading case interpreting the work product rule in
Washington in the context of communications between insureds and their insurers.
104 Wash. 2d at 396. We held there was a "reasonable expectation that the contents
of statements made by the insured will not be revealed to the opposing party." Id.
at 400. After a searching review of scholarship and case law in other jurisdictions,
we concluded:
[T]he better approach to the problem is to look to the specific parties
involved and the expectations ofthose parties. With these parties in mind.
Diaz Barriga Figueroa v. Frieto Mariscal, No. 95827-1
the scope of CR 26(b)(3)f" should provide protection when such protection
comports with the underlying rationale of the rule to allow broad discovery,
while maintaining certain restraints on badfaith, irrelevant and privileged
inquiries in order to ensurejust andfair resolutions ofdisputes.
Id. at 399-400 (emphasis added). Therefore, in determining whether a statement is
prepared in anticipation of litigation and therefore covered under CR 26(b)(4), we
must look to the specific parties involved and the expectations of those parties, the
rationale for the rule, and the need to restrain bad faith and intrusion into privileged
materials. See also Harris, 152 Wash. 2d at 489(jHeidebrink examination
of the relationship of the parties in each case.").
Subsequently, in Harris, we applied Heidebrink and held that work product
protection applied to an insured's independent medical examination performed at
the request of the PIP insurer, based on the specific parties and their expectations.
Id. at 490-91. In doing so, the Harris court carefully scrutinized the parties'
relationship—emphasizing that "the relationship between an insured and his or her
insurer is sometimes adversarial, while at other times the interest of the insured and
insurer are aligned. This dual relationship requires close examination, evaluating
the specific positions of the insurer and insured in each instance." Id. at 489.
Analyzing the specific parties and their expectations here, as we must under
Heidebrink and Harris, we emphasize there is a dual relationship between Diaz
^ The rule was renumbered to CR 26(b)(4) in 1990. For ease of reading, we refer to the current
numbers. See Harris, 152 Wash. 2d at 486 n.l.
10
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
and Brayan and their insurer. As a tort plaintiff against the named insured, Diaz
and Brayan's relationship with the insurer is adversarial. As a pedestrian PIP
insured, they are in a quasi-fiduciary relationship with the insurer."^ As such, Diaz
and Brayan reasonably expect their insurer to deal fairly with them and give equal
consideration in all matters to their interests.
Further, as Brayan's parent and natural guardian, Diaz went to a law firm for
legal assistance. As part of providing that legal assistance, the law firm sent a PIP
application form to the parties' shared insurance company. Diaz did not fill out the
forms herself, and it cannot be seriously contended that she sought legal assistance
merely to have help filling out forms—Prieto ran over her eight-year-old son's leg,
seriously injuring him. That no lawsuit had been filed when Diaz prepared
Brayan's PIP application is of no consequence; Diaz plainly signed the fonn in
anticipation oflitigation, in a lawyer's office, with assistance from the law firm
ultimately suing Prieto. Indeed, in Heidebrink, we stated that had the statements
been "made directly to the [insurance company's] selected attorney, it would
We respectfully disagree with the dissent's statement that "PIP claims are, by nature,
nonadversariai." Dissent at 4. This characterization belies human experience and our case law.
See Harris, 152 Wash. 2d at 488. In recognition of both the inherent conflict and the quasi-
fiduciary relationship between the parties, the information obligated to be provided by the
insured when seeking PIP benefits is presumptively confidential. E.g., id. at 490. It is often the
insurer who will assert work product privilege against an adversary in litigation or the
adversary's liability carrier. E.g., id. at 491-92. This was the case in Harris, where the insurer
asserted the privilege as the insured's representative. Id. Here, of course, Diaz asserted the
privilege directly, and the reasoning in Harris supported her doing so.
11
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
obviously have been made in anticipation of litigation." 104 Wash. 2d at 400. The
statements were made in anticipation of litigation. Thus, we hold work product
protections apply.
III. Prejudice
Having concluded it was error for the trial court to hold the document was
not protected, we must next determine whether the trial court's error was of
sufficient magnitude to necessitate a new trial. Prieto argues there is no prejudice
because the evidence was cumulative and admission of cumulative evidence is
harmless.
When a trial court makes an erroneous evidentiary ruling, the question on
appeal becomes whether the error was prejudicial, for error without prejudice is not
grounds for reversal. Driggs v. Howlett, 193 Wash. App. 875, 903, 371 P.3d 61
(2016)(citing Brown v. Spokane County Fire Prof. Dist. No. 1, 100 Wash. 2d 188,
196, 668 P.2d 571 (1983)). Error will be considered prejudicial if it presumptively
affects the outcome of the trial. James S. Black & Co. v. P&R Co., 12 Wash. App.
533, 537, 530 P.2d 722(1975). Improper admission of evidence constitutes
harmless error if the evidence is cumulative. Hoskins v. Reich, 142 Wash. App. 557,
570, 174P.3d 1250 (2008).
Prieto argues the evidence is cumulative because the statement as to how the
accident happened, as stated in the PIP application, was cumulative of the trial
12
Diaz Barriga Figueroa v. Prielo Mariscal, No. 95827-1
testimony of Diaz's own accident reconstruction expert. Prieto argues,"Before the
PIP application was admitted, the expert testified as to Brayan's 'explanation of
how he rode that day, prior to being hit.' Therefore, the record at trial contains
undisputed evidence that Brayan himself told his expert he rode into the street prior
to being hit." Suppl. Br. of Pet'r at 19 (quoting 1 RP (June 2, 2016) at 167). We
are not persuaded by this characterization of the evidence.
Prieto is correct that the expert stated Brayan rode in the street "prior to
being hit," i.e., earlier that day, but that is not at issue. 1 RP (June 2, 2016) at 167.
At issue is what happened immediately before Brayan was hit. Regarding that
issue, the PIP form says "child on a bike rode into road" and due to a blind spot
"was struck," which Prieto used to attack Diaz's version ofthe events. Def.'s Ex.
101, at 1 (emphasis added). Diaz said immediately before being hit Brayan was
not riding, he was leaned over untangling his shoelace. The PIP form was not
cumulative as Diaz's evidence strikingly differed.
Admission of the PIP form prejudiced Diaz.^ It was used extensively by
Prieto's counsel throughout trial. It was used in opening; it was used to cross-
^ The dissent contends the PIP form "was not important to the issue before the jury." Dissent at
5. The importance of the PIP form cannot be understated because it went to the issue of liability,
which was the central issue in this case. It is unclear how much weight the jury gave to the PIP
form in coming to its determination that Prieto was not negligent. See Driggs, 193 Wn. App. at
903("When the reviewing court is unable to know what value the jury placed on the improperly
admitted evidence, a new trial is necessary."(citing Thomas v. French, 99 Wash. 2d 95, 105, 659
P.2d 1097 (1983))).
13
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
examine Diaz and Diaz's accident reconstructionist; it was used to form opinions
of the accident by an accident reconstructionist retained on behalf of Prieto; and it
was used in closing argument to question Diaz's credibility. Further, when
Prieto's counsel used the PIP form, he almost always emphasized the fact that it
was signed by Diaz, thereby attributing the statements to her. Diaz did not make
these statements; the legal assistant filled out the PIP form based on the police
report. Crucially, the speculative statements in the police report were hearsay and
the police report was inadmissible at trial for this reason.
Prieto's counsel repeatedly claimed throughout trial that Brayan was hit after
he rode his bicycle between two parked cars and into the road. Prieto asserts
Diaz's accident reconstructionist's testimony supports this claim but, as discussed
above, it does not—^the PIP form served as the basis for the claim, and the PIP
form was therefore not cumulative. The trial court en'oneously admitted the PIP
form, and its admission prejudiced Diaz.
Conclusion
The PIP form was work product in light of the specific parties and their
expectations, and its admission prejudiced Diaz. We affirm the Court of Appeals
and remand for a new trial.
14
Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1
WE CONCUR:
/A /
15
Barriga Figueroa v. Prieto Mariscal
No. 95827-1
JOHNSON, J.(dissenting)—The work product doctrine is meant to serve as
a narrow exception to otherwise broad discovery and is confined to materials that
are prepared in anticipation of litigation. Our cases have established that in the
insurance context, a determination of whether this protection applies requires that
the court conduct a fact-specific inquiry looking at the "specific parties involved
and the expectations of those parties." Heidebrink v. Moriwaki, 104 Wash. 2d 392,
400, 706 P.2d 212(1985). We reiterated this factual analysis in Harris v. Drake,
where the relationship between the insurer and insured was of particular
importance, and we observed that the relationship "requires close examination,
evaluating the specific positions ofthe insurer and insured in each instance." 152
Wash. 2d 480, 489, 99 P.3d 872(2004). The majority acknowledges the fact-specific
nature ofthis inquiry but then ignores it and proceeds to apply work product
protection to a personal injury protection (PIP) application form where no factual
basis exists to support doing so. Furthermore, even assuming the trial court
committed error by admitting the application form, the form was not material to
the jury's determination or prejudicial to the plaintiff, and only by selectively
mischaracterizing the record does the majority conclude otherwise.
No. 95827-1
(Johnson, J., dissenting)
While CR 26(b)(4) protects from discovery "documents and tangible things .
. . prepared in anticipation of litigation or for trial," this protection is not absolute.
In Heidebrink, we acknowledged the particular difficulty in the insurance context
of determining whether materials were prepared in anticipation of litigation
because litigation is part ofthe ordinary course of business when dealing with
insurance claims. The parties in that case urged adoption of rules governing work
product protection in insurance matters that ranged from affording protection only
to materials prepared by an attorney to very broad protection of all materials
prepared in any insurance investigation. We stated that although the cases
presented by the parties were "on point," we believed it would be ''inappropriate
to subscribe entirely to the rationale of either set of cases." Heidebrink, 104 Wn.2d
at 399(emphasis added). We instead established our case-by-case, fact-specific
analysis and held that courts employing it should seek to comport with the
underlying rationale of CR 26(b)(4), allowing broad discovery while maintaining
certain restraints on bad faith, irrelevant, and privileged inquiries. In other words,
courts should avoid applying work product protections except where necessary "to
ensure just and fair resolutions of disputes." Heidebrink, 104 Wash. 2d at 400.
The majority recognizes that Heidebrink is the controlling case here and
purports to engage in an analysis of these parties and their expectations. However,
despite a record that is devoid of any indication the plaintiff, Monica Diaz Barriga
No. 95827-1
(Johnson, J., dissenting)
Figueroa,' anticipated litigation, the majority determines work product protection
should apply to her PIP application form. What is in the record regarding the
application is:(a) it was for no-fault insurance, which here requires no assertion of
liability and is, therefore, nonadversarial,(b)Diaz signed it while it was blank,(c)
it was completed and submitted before a complaint had been filed against the
alleged at-fault driver, Prieto, and (d) a law office helped complete it, including
filling in the accident description, using the description from the police report.
What is not in the record is any indication that Diaz or her attorney felt this
document might be utilized in a lawsuit.
The majority asserts that "it cannot be seriously contended" that Diaz
"sought legal assistance merely to have help filling out forms" and then concludes
that she signed the PIP application in anticipation of litigation. Majority at 11. But
there is nothing in the record to support such a finding; it is pure speculation by the
majority. The majority also relies on the "dual relationship" between Diaz and the
insurer, arguing that "[a]s a tort plaintiff against the named insured, Diaz and
Brayan's relationship with the insurer is adversarial." Majority at 10. This
argument ignores that we should be focusing on the expectations of the parties at
the time the PIP application was prepared. At that time, no lawsuit had been filed;
'For the sake of consistency, we follow the majority's lead in referring to the respondent
as Diaz and the petitioner driver, Consuelo Prieto Mariscal, as Prieto.
No. 95827-1
(Johnson, J., dissenting)
therefore, the majority's assertion that Diaz was an adversarial tort plaintiff is
wrong.
As we indicated in Harris, the relationship between an insured and an
insurer is complicated. This relationship "is sometimes adversarial, while at other
times the interests ofthe insured and insurer are aligned," thus, the need for "close
examination." Harris, 152 Wash. 2d at 489. Such an examination here reveals no
indication of an adversarial relationship between Diaz and the insurer at the time
she completed the application form. Only two conditions must exist to qualify for
PIP benefits:(1)that a person meets the definition of an "insured" and (2)that a
motor vehicle accident occurred that caused the person injury. Because fault plays
no factor in coverage, PIP claims are, by nature, nonadversarial.
The record simply does not indicate that Diaz anticipated litigation when she
signed the PIP application; it indicates only that she employed an attorney who
assisted her with filing a PIP claim. By extending work product protections to this
application, the majority seemingly, but without expressly stating so, abandons our
fact-specific analysis in favor of broad protection for any materials prepared in the
insurance context. If we properly apply what our prior cases established and
recognize the underlying policy of CR 26(b)(4) favoring broad discovery, work
product protections do not apply here.
No. 95827-1
(Johnson, J., dissenting)
But even if we were inclined to find that work product protection extended
to the PIP application form and it was error to use it at trial, error without prejudice
is not grounds for reversing the jury verdict. Brown v. Spokane County Fire Prof.
Dist. No. 1, 100 Wash. 2d 188, 196, 668 P.2d 571 (1983). For an error to be
prejudicial, it must be determined that "within reasonable probabilities, the
outcome of the trial would have been materially affected had the error not
occurred." State v. Tharp, 96 Wash. 2d 591, 599,637 P.2d 961 (1981).^ The majority
asserts that the PIP application was prejudicial for two reasons:(1) because it was
used by defense counsel to impeach both Diaz and her accident reconstruction
expert, Patrick Stadler, and (2) because the PIP form served as the basis for
defense counsel's assertion that Diaz's son, Brayan, rode into the road. In doing so,
the majority ignores the record, failing to acknowledge that the PIP application
form was not important to the issue before the jury, was not the only evidence in
front of the jury, and was not the only means by which defense counsel impeached
Diaz and Stadler.
During cross-examination of Diaz, defense counsel sought to impeach her
testimony on multiple points and overwhelmingly did so using statements other
^ The majority cites Driggs v. Howlett, 193 Wash. App. 875, 903, 371 P.3d 61 (2016), for
the proposition that a new trial is required anytime a reviewing court is unable to determine what
value a jury may have placed on improperly admitted evidence. Majority at 13 n.4. But the
Driggs court derived this rule from cases involving hearsay evidence that should have been
admitted only for a limited purpose. This rule has no applicability here.
No. 95827-1
(Johnson, J., dissenting)
than those in the PIP application. See, e.g., 2 Report of Proceedings(RP)(June 2,
2016) at 283-86 (using Diaz's earlier deposition testimony to impeach her
inconsistent testimony regarding how Brayan was positioned when she arrived at
the scene); 2 RP (June 3, 2016) at 299-303 (using the initial complaint to impeach
Diaz's description of Brayan's conduct leading up to the accident), 304(using
Diaz's deposition testimony to impeach her description of Brayan's conduct
leading up to the accident). As to the majority's assertion that the application was
used by defense counsel to impeach Stadler, this is entirely unsupported by the
record. The application was first brought up during redirect by plaintiffs counsel,
and defense counsel questioned him on recross as to whether the description on the
application was consistent with the idea that Brayan had been in a blind spot and
with the description given in the police report. However, while this form was not
used to impeach Stadler, defense counsel did impeach him through other means.
See 1 RP (June 2, 2016) at 165-69(impeaching Stadler using a diagram he drew
that was consistent with the defense counsel's theory ofthe accident), 169-71
(using Stadler's deposition testimony to impeach his assertion that he had not
considered the defense's theory of the accident), 171-72(using Stadler's deposition
testimony to impeach him after he avoided answering whether the defense's theory
could result in Brayan's injuries).
No. 95827-1
(Johnson, J., dissenting)
Significantly, defense counsel illustrated the differing accounts of how the
accident occurred using deposition testimony from both Diaz and Stadler, as well
as the initial complaint. The majority mischaracterizes the entirety of the trial
records by asserting that only the PIP application supported the defense's theory of
how the accident occurred. Majority at 14. The PIP application was arguably
cumulative both as a means of impeachment and as a means of establishing the
defense's theory.
It is highly unlikely the jury considered the PIP application form convincing
as substantive evidence. At trial, when defense counsel sought to impeach Diaz
with the application, she countered by testifying that she signed the application
when it was blank and would not have done so if she had known her attorney
would use the description from the police report. During recross, Stadler described
the accident description in the application and the police report as inconsistent with
the physical evidence. Finally, during rebuttal, an employee of Diaz's attorney
testified and explained that he, not Diaz, had inserted the description of the
accident. Despite all of the evidence and testimony, the majority never explains,
and cannot explain, how the de minimis use of the prior inconsistent statement in
the PIP application form, made by a nonwitness to the accident, could have
possibly had a material effect on the jury's decision.
No. 95827-1
(Johnson, J., dissenting)
The Court of Appeals should be reversed.
6 Gy,/
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