HeadsUp for Washington State: Court Opinions From Tuesday, January 28, 2014

HeadsUp for Washington State: Court Opinions From Tuesday, January 28, 2014

Tuesday, January 28, 2014 

To view the full text of these opinions, please visit: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent or Lexis subscribers may use the links below to access the cases on either lexis.com or Lexis Advance.

Division Two of the Court of Appeals filed 2 new published opinions and announced the publication of 1 additional opinion and Division Three filed no new opinions on Tuesday, January 28, 2014:

1. State v. Barry
No. 43438-5
(January 28, 2014)
2014 Wash. App. LEXIS 205 (lexis.com)

2014 Wash. App. LEXIS 205 (Lexis Advance)


Brief: The Court of Appeals affirms defendant's conviction of first degree child molestation (domestic violence), holding that, although the trial court erred in instructing the jury that it could consider defendant's courtroom demeanor as evidence, defendant cannot show prejudice from the trial court's instruction.

2. United Servs. Auto. Ass'n v. Speed
No. 43728-7
(January 28, 2014)
2014 Wash. App. LEXIS 206 (lexis.com)

2014 Wash. App. LEXIS 206 (Lexis Advance)


Brief: The driver appealed the trial court's summary judgment dismissal of his duty to defend, duty to explore settlement, and bad faith claims the insurer arising from the driver's allegation that an insured had deliberately assaulted him in a road rage incident. The driver had filed suit against the insurer as the assignee of the insured following entry of a stipulated judgment. The Court of Appeals affirms, holding that (1) the insurer had no duty to defend the driver's claim under either the homeowners or auto insurance policies because the claim did not allege an “accident” as required for coverage under the policies, (2) the insurer's “uncertainty” whether to provide a defense did not create a duty to defend when the unambiguous claim allegations did not trigger such a duty, (3) in the absence of a duty to defend, the insurer had no duty to explore settlement, and (4) the trial court properly denied the driver's bad faith claims.

3. Barrett v. Lowe's Home Ctrs., Inc. 
No. 43024-0
(filed August 13, 2013; ordered published January 28, 2014)
2013 Wash. App. LEXIS 1885 (lexis.com)

2013 Wash. App. LEXIS 1885 (Lexis Advance)


Brief: Plaintiff was injured by falling boxes while watching a Lowe's employee unload the trailer the plaintiff had delivered. She sued both Lowe's and the employee for negligence. The trial court granted summary judgment in favor of Lowe's. The Court of Appeals reverses and remands, holding that the trial court erred by concluding that implied primary assumption of risk applied to bar plaintiff's recovery because plaintiff did not assume the risk of the employee's negligence in unloading the trailer. 

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