414 P.3d 590
Wash. Ct. App.2018Background
- Eight-year-old Brayan Martinez was run over by a minivan in Pasco, WA; he and his mother Monica Diaz (monolingual Spanish speaker) filed suit alleging the driver, Consuelo Prieto Mariscal, was negligent.
- Diaz retained counsel and signed a blank PIP (personal injury protection) application for her insurer; a legal assistant later completed the form using the police report, describing that the child rode into the road between parked cars.
- The PIP application was not produced by Diaz to defense counsel; the Court of Appeals infers defense counsel obtained it from the parties’ shared insurer.
- At trial the court admitted the PIP application over Diaz’s objection; the jury found the defendant not negligent and the trial court denied judgment notwithstanding the verdict.
- On appeal Diaz argued the PIP application was (1) hearsay and (2) confidential work product; the court addressed both issues and reversed for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PIP application was hearsay | Diaz: multiple hearsay/speculative and inadmissible | Prieto: agent admission; PIP is part of defendant’s insurer coverage and admissible | Not hearsay — admission by party’s agent under ER 801(d)(2)(iv) |
| Whether PIP application is confidential work product | Diaz: PIP is protected by work-product/confidentiality because insured must cooperate with insurer | Prieto: not privileged; routine business record | PIP application is work product/confidential; trial court erred admitting it |
| Whether erroneous admission was prejudicial | Diaz: admission was central to defendant’s theory and prejudiced outcome | Prieto: similar statements existed in police/medical records, so not prejudicial | Error was prejudicial; reversal and new trial granted |
| Scope of appellate review / record development (dissent) | N/A (majority considered privilege) | Dissent: Diaz did not develop record below nor brief privilege; court should not create facts or new theory | Majority considered issue; dissent argues procedural error but majority reverses anyway |
Key Cases Cited
- Harris v. Drake, 152 Wn.2d 480 (2004) (insured’s cooperation with insurer creates expectation of confidentiality; IME report afforded protection)
- Strauss v. State, 119 Wn.2d 401 (1992) (standard of review for hearsay-exception factual determinations)
- Lockwood v. A C & S, Inc., 109 Wn.2d 235 (1987) (agent must have authority to speak for principal; discussion of ER 801(d)(2) limits)
- Heidebrink v. Moriwaki, 104 Wn.2d 392 (1985) (attorney work-product protection; nonattorney materials protected when prepared for litigation)