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HeadsUp for Washington State: Court Opinions From Thursday, September 10, 2015

Thursday, September 10, 2015

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The Supreme Court of Washington filed 2 new opinions and Division Three of the Court of Appeals filed 1 new published opinion on Thursday, September 10, 2015:

Supreme Court:

1. Nw. Wholesale, Inc. v. Pac Organic Fruit, LLC / Ostenson v. Holzman
No. 90891-5            
(September 10, 2015)
2015 Wash. LEXIS 1045 (

2015 Wash. LEXIS 1045 (Lexis Advance)


Brief: In a dispute between members of a limited liability company (LLC), the fruit broker and associated entities did not waive their CR 41(b)(3) challenge to the orchardists' right to relief at the close of the orchardists' case by proceeding to present evidence after the court took the motion under advisement because the motion turned solely on a legal question, i.e., the orchardists' standing to proceed with their derivative action. RCW 25.15.130(1)(d)(ii), which dissociated the orchardists from the LLC upon their voluntary petition for bankruptcy, thereby depriving them of management rights and of any right to maintain a derivative action, was not preempted either by 11 U.S.C. § 541(c)(1), which defines what property is included in a bankruptcy estate, or by 11 U.S.C. § 365(e), which governs the disposition of an executory contract.

2. State v. Lewis
No. 91180-1           
(September 10, 2015)
2015 Wash. LEXIS 1044 (

2015 Wash. LEXIS 1044 (Lexis Advance)


Brief: Defendant was not constitutionally entitled to receive credit for time served under RCW 9.94A.505(6) for his assault and burglary sentences for the time when he was actually serving his sentence for failure to register as a sex offender because principles of equal protection did not entitle him to such credit.

Court of Appeals:

Kries v. WA-SPOK Primary Care, LLC
No. 32879-1            
(September 10, 2015)
2015 Wash. App. LEXIS 2190 (

2015 Wash. App. LEXIS 2190 (Lexis Advance)


Brief: The trial court erred in granting summary judgment to the employer on the employee's claims under RCW 49.60.180(2) because material facts raised triable questions of whether the infection control policy applied to bar the return of the employee to employment, the employee bore an "open wound," the absence of an open wound was an essential job function, freedom from wounds was a bona fide occupational qualification under WAC 162-16-240, and the clinic reasonably accommodated the disability under WAC 162-22-075. The defense of a bona fide occupational qualification is available to an employer in a discharge case under RCW 49.60.180(2) in addition to a refusal to hire case under RCW 49.60.180(1). 

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