MONICA DIAZ BARRIGA FIGUEROA, as parent and natural guardian of BRAY AN MARTINEZ, a minor, Respondent,
CONSUELO PRIETO MARISCAL, individually and the marital property thereof, if any, Petitioner.
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
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.
police officer spoke with Prieto and her daughter but not
Brayan or his mother, Monica Diaz Barriga 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 of the roadway that created a
blind spot for the driver of VI. 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
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.
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.
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
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 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.
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?
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
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.
voir dire, and after argument by counsel for both sides, the
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 ...