441 P.3d 818
Wash.2019Background
- On Oct. 30, 2013, an 8-year-old (Brayan) was seriously injured when run over by a vehicle driven by Consuelo Prieto Mariscal; Brayan's mother Monica Diaz (monolingual Spanish speaker) sought PIP benefits and legal help.
- Diaz signed a blank PIP application at a law office; a legal assistant later completed the accident description based on a police report (which was hearsay and excluded at trial).
- The PIP form described the child as riding into the road and being struck between parked cars; Brayan later testified his shoelace got caught and he leaned over to untangle it when his leg was run over—conflicting accounts central to liability.
- The trial court admitted a redacted PIP application over Diaz’s objection, allowing defense use to impeach Diaz and attack liability; jury returned a defense verdict.
- The Court of Appeals reversed, holding the PIP application was work product and its admission prejudicial; Supreme Court granted review and affirmed the Court of Appeals, ordering a new trial.
Issues
| Issue | Plaintiff's Argument (Diaz) | Defendant's Argument (Prieto) | Held |
|---|---|---|---|
| Whether statements in a statutorily-created PIP application are protected work product under CR 26(b)(4) | The PIP form was prepared in a lawyer’s office in anticipation of litigation and thus is work product; plaintiff has confidentiality expectations | PIP is a no-fault first-party claim; no privilege or work product attaches and insurer may share files with defense | Held: Work product protection applies; the quasi-fiduciary relationship and parties’ expectations support protection even though PIP status arises by statute rather than contract |
| Whether an insurer owes PIP claimants the same quasi-fiduciary duties as named insureds | PIP claimants are statutorily "insureds" and should receive equal-consideration duties from insurer, giving rise to confidentiality expectations | Characterized PIP as nonadversarial no-fault benefit; duties do not create work-product expectations | Held: Insurer owes PIP insureds the same quasi-fiduciary duties; expectations of fair dealing support work-product analysis |
| Whether admission of the PIP form was harmless or prejudicial error | Admission was prejudicial because the form was used extensively to impeach, to support defense experts, and to argue liability; not cumulative with other evidence | Admission was harmless/cumulative; defense impeached via other sources and form was not material to jury’s verdict | Held: Admission was prejudicial; form was not merely cumulative and materially affected trial—new trial ordered |
| Proper scope of work product analysis in insurance-context communications | Apply Heidebrink/Harris fact-specific test looking to parties and expectations; documents prepared with counsel in insurer context presumptively confidential | Warns against broadening protection in insurance context absent clear anticipation of litigation | Held: Reaffirmed Heidebrink/Harris approach; applied it here to extend protection to PIP application completed in counsel’s office |
Key Cases Cited
- Heidebrink v. Moriwaki, 104 Wn.2d 392 (leading Washington case applying work-product analysis to insured–insurer communications)
- Harris v. Drake, 152 Wn.2d 480 (applied Heidebrink; emphasized fact-specific look at insurer–insured relationship)
- Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381 (recognized insurer’s duty to give equal consideration to insured’s interests)
- Van Noy v. State Farm Mut. Auto. Ins. Co., 142 Wn.2d 784 (discussed quasi-fiduciary nature of insurer–insured relationship)
- Matsyuk v. State Farm Fire & Cas. Co., 173 Wn.2d 643 (statutory recognition that pedestrians can be PIP insureds)
- Brown v. Spokane County Fire Prof. Dist. No. 1, 100 Wn.2d 188 (error without prejudice is not reversible)