MONICA DIAZ BARRIGA FIGUEROA as parent and natural guardian of BRAYAN MARTINEZ, a minor, Appellant,
CONSUELO PRIETO MARISCAL, individually and the marital property thereof, if any, Respondent.
Diaz, as parent and guardian for her son Brayan Martinez,
appeals from a defense verdict finding Consuelo Prieto not
negligent for driving over and fracturing Brayan's lower
right leg. Ms. Diaz primarily argues that the trial court
erred in admitting the personal injury protection (PIP)
application to her insurer. She argues that the PIP
application was hearsay and confidential work product.
that the PIP application was not hearsay because it was an
admission by a party opponent under ER 801(d)(2)(iv).
However, we hold that the trial court erred when it failed to
extend work product protection to the PIP application and
that this error was prejudicial. We therefore reverse the
jury's verdict and grant Ms. Diaz a new trial.
October 30, 2013, Ms. Prieto was driving her minivan
southbound on North Cedar Avenue in Pasco, Washington. Her
teenage daughter, Melissa Guzman, was riding in the front
passenger seat. There were vehicles, including an orange
pickup, parked on the right side of the road. As Ms. Prieto
passed the orange pickup, she heard a noise on the passenger
side of her van and felt her van jump a little. She stopped,
got out, and saw eight-year-old Brayan Martinez lying near
the pickup and next to his bicycle. It was evident that
Brayan's lower right leg had been run over by one of the
minivan's tires. Melissa called 911. Brayan was taken to
the hospital and treated for his injuries.
police officer arrived at the scene to investigate and
prepare a report. The officer spoke to a few people,
including Ms. Prieto and her daughter. No one the officer
spoke to actually saw what happened. Nevertheless,
the officer's report indicated that Brayan had ridden his
bike from between two parked cars and into the road.
Diaz, a monolingual Spanish speaker, contacted a law firm and
sought its assistance in making a claim under her insurance
policy to pay for medical expenses. On November 21, 2013, Ms.
Diaz met with an employee of the law firm who spoke Spanish.
Following this meeting, a legal assistant asked Ms. Diaz to
sign a blank form that the assistant later completed. The
form was an application for PIP benefits. Although PIP
benefits are available regardless of fault, the form had a
line that required the applicant to provide a brief
description of the accident. The legal assistant used a copy
of the police report to complete the form. The legal
Vehicle was traveling on North Cedar when child on a bike
rode into road. There were 2 parked cars on the road creating
a blinde [sic] spot for the driver. Child was struck and had
right leg ran over.
Ex. 101 at 1.
Diaz, on behalf of her son, brought suit against Ms. Prieto.
Ms. Diaz hired an accident reconstruction expert to assist in
establishing liability. The expert, Patrick Stadler, met with
Brayan at the accident scene to determine how the accident
explained that prior to the accident, he rode his bicycle
from the sidewalk into the roadway in front of the orange
pickup to make U-turn type maneuvers. Defense counsel later
deposed Brayan. Brayan's statements during the deposition
varied enough that Mr. Stadler determined he should meet with
Brayan again. Brayan's second explanation to Mr. Stadler
was that his shoelace became tangled in his bike chain and
that the bike came to rest near the front of the orange
pickup. He was stopped and leaning over his bike with his
right leg extended out in the road when the minivan ran over
his leg. Brayan did not mention the shoelace becoming stuck
during his initial interview with Mr. Stadler.
case proceeded to trial. During opening statements, Ms.
Prieto referred to the PIP application. After opening, Ms.
Diaz orally requested that the PIP application be excluded:
Your Honor, ... in defendant's opening [defense counsel]
brought up some piece of evidence that I think he might try
to bring up again.
[The] Personal Injury Protection application. The personal
injury protection application is ... .
... 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, [defense counsel] somehow got a copy of the PIP
application. This raises a number of concerns. . . .
So even though [defense counsel] 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
RP at 119-21.
In response, defense counsel argued:
First of all, this document is not privileged. . . .
The PIP insurance coverage is, in essence, a no fault benefit
provided on the insurance policy insuring Ms. Prieto. Okay?
So it's her insurance company that's providing this
benefit of medical coverage to Brayan.
trial court then heard voir dire testimony from Ms. Diaz. Ms.
Diaz explained that her attorney's legal assistant
directed her to sign the blank PIP application. The trial
court determined that the form was prepared by plaintiffs
agent, constituted an admission against interest, and
therefore denied Ms. Diaz's request to exclude it. The