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Figueroa v. Mariscal

Court of Appeals of Washington, Division 3

April 3, 2018

MONICA DIAZ BARRIGA FIGUEROA as parent and natural guardian of BRAYAN MARTINEZ, a minor, Appellant,
v.
CONSUELO PRIETO MARISCAL, individually and the marital property thereof, if any, Respondent.

          LAWRENCE-BERREY, C.J.

         Monica 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.

         We hold 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.

         FACTS

         On 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.

         A 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.

         Ms. 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 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 blinde [sic] spot for the driver. Child was struck and had right leg ran over.

Ex. 101 at 1.

         Ms. 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 happened.

         Brayan 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.

         The 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 application.

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.[1]

         RP at 121-22.

         The 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 ...


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