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Figueroa v. Mariscal

Supreme Court of Washington

May 23, 2019

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.

          Gonzalez, J.

         Washington 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 trial.


         On 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.

         A 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 treatment.

         Clerk's 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.

         Three 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.

         Def's 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 accident.[1]

         During 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.

         1 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 insurance company.

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.

         After voir dire, and after argument by counsel for both sides, the court concluded:

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 ...

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